California Probate Center

California Gold Digging – the California Probate Code Leaves the ‘49er Spirit Intact

admin — Sat, 31 Jul 2010 01:06:03 +0000

Gold digging may be found in the classic case of the 75 year old man marrying the girl of his dreams – who happens to be 18 years old. But probate litigators know that it can come in much more sinister forms – such as the caregiver who marries late to avoid a loophole in the California probate code – or an unscrupulous friend or neighbor. A very good note by University of San Diego Law School student Ashley E. Rathbun characterizes the highlights and lowlights of California’s lacking statutory scheme. Although she is quite narrow in her scope due to the limitations inherent in drafting such a note, Ms. Rathbun does an excellent job of deconstructing the narrow issue of marriage financial abuse. But those that are disheartened take note - there are plenty of remedies available to a probate litigator that obviate the need for a court judgment to void or make voidable a fraudulent marriage. Hopefully legislators will take note and follow Texas’ new and more sensible statutory scheme – allowing defrauded heirs the ability to void a marriage post-death – and allow the appellate courts the ability to develop a sensible gloss over the statute (badges of haste and secrecy, undue influence factors, etc). A welcome expansion would be the use of California’s broadened definition of who constitutes an elder. You can read the full note here.

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What to Do With Your Trust, Advance Health Care Directive, and Durable Power of Attorney After Divorce

admin — Wed, 30 Jun 2010 18:59:38 +0000

The answer is simple and after you read the following example you will understand shortly why I must emphasize it: REVOKE IT IN WRITING! Gary Coleman laid bleeding to death at the bottom of the stairs while his ex-wife talked to a 911 operator at the top of the stairs. In that conversation, recorded on tape, his ex-wife refused initially to walk down the stairs to administer aid, and delayed giving aid afterwards because she apparently “just can’t be here with the blood. I’m sorry, I can’t do it. I can’t. … There’s blood all over and I can’t do anything.”

Afterwards, Coleman laid comatose in the hospital and his ex-wife still had the medical power of attorney through an advance health care directive. Under California law, an advance health care directive should be automatically revoked at divorce – see California Probate Code § 4797. However, because some facts are not immediately accessible through the media, that law was not honored at the hour of his death. It could be that under the Health Care Decisions Law, a revocation of an agent is handled differently than the underlying instructions. But regardless of the law, such fine distinctions are likely little comfort to Coleman, because in that advance health care directive or medical power of attorney, Coleman selected the following:

I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (b) Choice to Prolong Life. I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.” (emphasis added).

In other words, he did not want anyone to pull the plug. Against those wishes, his wife allegedly took him off of life support. To top it off, she is now in a court battle to become executor of his estate. It may be too late for Coleman, but let this be a lesson to everyone else. If you are divorced and have not tidied up your affairs, now would be the time to consult an attorney to learn the proper method of revoking it.

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In Re: The Estate of Michael Jackson - The Final Numbers Are In.

admin — Tue, 01 Jun 2010 06:41:30 +0000

Who was not provided for? The settlement agreement provides nothing for Michael’s famous siblings or ex-wives Debbie Rowe and Lisa Marie Presley. However, his mother Katherine Jackson, who is legal guardian to the kids (see “How Do I Become a Guardian?”) will receive 40% of the estate, with another 20% going to charity. Michael’s children will receive the final 40% of the share of the estate currently valued at $300 million. The children’s share will not be accessible until they reach the age of 21 (the type of planning you cannot do with merely a simple will) after which they will receive the remaining principle when they reach age 40.

** UPDATE **

Michael Jackson’s father has filed a wrongful death suit against the doctor who is alleged to have negligently caused his death by a lethal set of prescriptions.

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Drafting an Estate Plan for those with Multiple Sclerosis and Parkinsons

admin — Sat, 01 May 2010 06:32:57 +0000

In “Psychological and Emotional Impact of Chronic Illness on Estate Planning: Case Study Comparing and Contrasting Multiple Sclerosis and Parkinson’s Disease,” Kalb et al disclose the attendant problems with planning for those with MS or PD. They also discuss that “[a]ttorneys need to be alert for the possibility that family members or caregivers might take advantage of an MS or PD client.” They give a few key tips that were highlighted in Prof. Beyer’s blog:

* Planning shorter meetings
* Planning for the effects the illness has had on the client’s ability to write
* Recognizing that family members may be exerting undue influence on the client
* Helping the client come to terms with the need for estate planning
* Addressing special estate planning issues that might arise as the client’s illness progresses
* Paying attention to how a client’s religious beliefs impact planning

Thanks to Prof. Beyer for bringing this article to my attention.

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When Gold Diggers Attack – Wives That Marry for the Money

admin — Wed, 31 Mar 2010 22:25:22 +0000

The unavoidable probate litigation news this month was that Anna Nichole Smith (whose real name in was used in the pleadings: Vickie Lynn Marshall) lost on appeal in her claim to the J. Howard Marshall estate estimated at $1.6 billion. The litigation went all the way to the Supreme Court of the United States, where the former stripper and Playboy model watched the probate litigators plead her case. Apparently, the plea worked, because the Supreme Court sent the appeal back to Texas for “reconsideration.” It was under that reconsideration that Smith lost, with the Court holding that the Texas Probate Court’s fact findings should have been given preclusive effect on the issues decided.

California has a similar rule – in fact a California Superior Probate Court has exclusive jurisdiction over some causes of action. California Probate Code § 7050. Another Court in California may not render a second opinion on the same set of facts as a Probate Court except in very limited circumstances, which is what the Texas Court was ruling upon. On a somewhat related note, prosecutors released a bizarre tape of an apparently drugged Anna Nichole Smith in an attempt to prove that Howard Stern was manipulating her. . .

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Stealing and Theft by Power of Attorney - A New Low

admin — Sun, 28 Feb 2010 23:28:55 +0000

I receive calls from across the nation concerning theft by power of attorney – unfortunately I am not licensed to practice law in every state – and I am often relegated to giving general advice regarding criminal prosecution and the type of attorney that can privately prosecute the theft and get the money back (which is exactly what I do - probate litigation). I wish it were otherwise, because there is a particularly egregious case of fiduciary abuse that occurred in Louisiana, in which a 72 year old attorney allegedly forged his name on a power of attorney and used the document to steal approximately $32,000. The attorney resigned after facing disbarment - but not before the damage was done to the victims of the theft. The trial will begin shortly. You can learn how to stop power of attorney abuse here (”How Do I Stop Power of Attorney Abuse?“) and learn how to prevent it here (”How to Prevent Stealing by Power of Attorney“).

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When Celebrity Estate Planning (or a Lack Thereof) Leads to Probate Disaster

admin — Sun, 31 Jan 2010 23:28:19 +0000

A young Michigan probate litigator who has shared a connection with the California Probate Center (see the Blogroll) has published a new book titled “Trial and Heirs: Famous Fortune Fights . . . And What You Can Learn from Celebrity Errors.” The book covers the estates of Michael Jackson, Ted Kennedy, Princess Di, Anna Nicole Smith, Heath Ledger and others. It also includes helpful sections of “Tips to Avoid a Family Fight” and “Ideas to Spark Family Discussions.” It takes a systematic approach to estate planning including the strengths and weaknesses of wills, and the modern approach to estate planning that bypasses probate entirely by using trusts. Want to learn more? You can read more about the book by going to its website and you can purchase a copy on Amazon.

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Lawsuit Over the Comedy Store Could Result in an Ugly Probate Fight

admin — Fri, 01 Jan 2010 00:53:53 +0000

The Comedy Store, with one location in La Jolla in San Diego, has become the subject of a lawsuit alleging undue influence over the store’s owner. The local SoCal favorite has launched the careers of comedians like Robin Williams, David Letterman, Jim Carrey and countless others. It is owned by Mitzi Shore, the mother of comedian Pauly Shore. Pauly was recently fired from the Board of Directors after his brother allegedly exercised undue influence over Mitzi, who is now 79 and suffering from Parkinson’s.

Undue influence is defined in California Civil Code § 1575:

In the use, by one in whom a confidence is reposed by another,
or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair
advantage over him;
In taking an unfair advantage of another’s weakness of mind;
or,
In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

To illustrate how undue influence works under the statute, Pauly is therefore claiming one or all of the following:

that his brother either obtained an unfair advantage over his mother due to their relationship; or
that his mother’s physical state has weakened her mind, allowing his brother to exploit her; or
his mother’s physical ailment is distressful and his brother is exploiting it.

That said, I cannot quite comprehend why he filed a lawsuit. The obvious alternative was to move for a conservatorship (Click Here to Learn More About California Conservatorships) over his mother so that conservator could make business and financial decisions on behalf of his mother, thus obviating the undue influence of his brother. While I do not generally recommend them, conservatorships are designed exactly for this type of situation and the conservator could simply reappoint Pauly to the board, thus relieving the need for an ugly court fight.

In addition, probate courts are designed to work with difficult family dynamics and are best suited to deal with the issues here rather than a general civil superior court. I would not be surprised if this case were removed to a probate court by the assigned civil judge. If not, their mother’s estate may end up in probate court anyway should she pass before the issues are resolved.

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Funeral Goes Horribly Wrong

admin — Tue, 01 Dec 2009 01:05:43 +0000

In a bizarre turn of events, a funeral went awry after a coffin that was being lowered into a grave broke open. Immediately after the mishap, the funeral workers that were lowering the coffin allegedly ran from the scene, so two family members jumped into the grave in an attempt to lift the coffin from the grave. At that point, the coffin allegedly crumbled because it was made from particle board that was stapled together.

In California, the aggrieved witnesses could recover under the authority of Christensen v. Superior Court, 54 Cal. 3d 868, 888 (1991), which provides in part that: “Once a mortuary . . . undertakes to accept the care, custody and control of the remains, a duty of care must be found running to the members of decedent’s bereaved family.” The case goes on to list the elements for a prima facie cause of action for negligent infliction of emotional distress. In the American legal system, money does not often compensate a victim that sustained a purely emotional loss. But I doubt any amount of money will sooth the victims’ troubled memories.

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Why Do I Need a California Will? 5 Myths About Wills

admin — Sat, 31 Oct 2009 19:00:40 +0000

USA Today has published a list dealing with misconceptions about wills. The list tackles 5 common myths:

Estate planning is for rich people.
If I die without a will, everything will go to my spouse.
If I have a will, my estate won’t go through probate.
After I create my will or living trust, I’m all set.
I could be held responsible for a deceased parent’s debts.

You can read the article itself here.

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