Episode 7- Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – Can A Court Pardon a Bad Trustee?

Hello this is Keith Davidson and this is Stuart Albertson welcome to another episode of Albertson and Davidson live and today as all days actually we're joined by our assistant and paralegal Kayla say hi Kayla she's been with us from the beginning but we only just now figured out how to work her camera so it's a work in progress we're learning as we go a little later Kayla is going to help us out with some of our questions but let's start off with our breaking news for this week breaking news comes to us from a case called orange Catholic foundation versus Rosie Arzu I hope I'm saying that right I'm not sure but this is kind of interesting case cuz it has to do with a trustee who did some things wrong and was sued because she did some things wrong and well we'll see what the court does with it how about that should I start off with the facts yes let's run through the facts right so in this case we have a trust that was created and the person who created the trust created a trust for the life of her good friend of over 60 years Paul and Paul was given the right to live in a house for the rest of his life provided that he paid for certain expenses and we see this fairly often right and trust we're sure where people are given a life estate we call it but they have to pay for certain expenses well over time Paul got to the point where he couldn't take care of himself anymore he had to have a living caregiver and he couldn't afford to pay the expenses of the home so what does the trustee gonna do kick him out or let him stay there well the trustee let him stay there and just use the trust funds to pay for the expenses for the home things like property tax insurance that sort of thing and so that went along until Paul's death and then at Paul's death then the trustee took a while to actually sell the house from 2012 to 2015 took her about three years to actually get around to selling it and so the remainder beneficiary was the church so that was the plaintiff in this case orange Catholic foundation and so they sued her for breaches of trust and they believe that she used something in the neighborhood of forty four thousand dollars to take care of the home that supposedly Paul should have paid and so went through the trial court and the trial court said that the church was being both unrealistic and not particularly charitable so where do you think this case is heading for the charity is not looking good for the charitable Catholic foundation yeah Wendy when the court starts off by saying that you know you're in trouble so the court pointed out that they they acknowledge that look the trustee did wrong she violated the terms of the trust she wasn't supposed you know Paul was supposed to pay these expenses he didn't the Trust said if he didn't pay it then he lost his life estate house should have been sold but the court also surmised that of the forty four thousand dollars about forty thousand of it was used to benefit the residence so as things like insurance property taxes homeowners association dues all the things that you would need to maintain the home even if Paul didn't live there those if you continued on the home you just have to pay for those things yes of course there would be rental income as well right right and that's what the charity was arguing is that then she should have rented it out there also was four thousand dollars in expenses that really went to benefit Paul personally not so much the expenses of the home so forty four thousand dollars but the courts reasoning while forty thousand of it a big bulk of it had to do with the home anyway so what are you gonna do in this case also for the sale in November of 2012 when Paul died the house was worth four hundred and ten thousand trustee waits until 2015 to sell the house and it sells for five hundred and forty six thousand each increase one hundred and thirty six thousand dollar increase so no harm no foul maybe well and the charity is not happy because it took three years to sell the home so they want they want something for that having to wait three years so what do you think the court does with all this I think the court says no harm no foul I think I think ultimately what happened here is you have a trial judge that seize the demeanor of the trustee I'm assuming there was some testimony of the trustee and seemed like a credible person a good person and maybe they had made some mistakes here along the way but the increase of the value of the home was substantial I don't know what the charity would have done with the home during that time I don't know if they would have sold it or invested it maybe made some money as well but there was obviously an increase in the value of the home during the time where there was this $40,000 or so that was paid for the life tenant these things make the there's a saying in law school bad facts make bad law and I kind of feel like this is one of those cases but as you know there is a provision of the probate code that even when you show damages against a trustee what can the probate court do yeah they can give you a get-out-of-jail-free card and that's exactly where this case is heading of course in its Probate Code section 16 4 4 0 subsection B and they quoted in this case and it says if the trustee has acted reasonably and in good faith under the circumstances as known to the trustee the court in its discretion may excuse the trustee in whole or in part from liability if it would be equitable to do so so there's a lot of ifs in there so if the trustee is acted reasonably and in good faith under the circumstances as known to the trustee the court in its discretion may excuse the trustee if equitable to do so and and this is why it's so hard for us to advise clients and we're a normal ear going after trustees right yeah and trustees that makes significant mistakes and it costs a lot of money to that beneficiaries beneficial interest in the trust and we always have to have the caveat that hey we can slam-dunk this case although there is no such thing as a slam dunk but we can really do a good job in this case and get all kinds of damages against this trustee and then the court can say yes but in my discretion these were done in good faith and I'm not gonna hold damages against the trustee yeah and that's the problem is that you really have to understand that there's a huge out for trustees and that is the court can let them off the hook if the court feels it's equitable to do so and so you have to position the case so that hopefully that doesn't happen you can see why it happened here because you have somebody who's ill lived in the house for you know a long time friend of the set lor he you know this guy's living in the house he's ill he can't pay and forty thousand at the forty four thousand that was spent was for things that benefited the house anyway so you can see where this is heading right off the bat but yeah it's if you if you're not careful you can corner the trustee and then they have a back door that they can run out of well and here's the here's where it's important that the lawyer that's on your case understands who the judge is in the county you should have a read on every judge that you and Pierre in front of and you have an idea of what they're gonna do if this was in front of Judge care men in Riverside do you think the trial court level it would have resulted in the same or what about what's the judge up in Santa san mateo what if it was in front of him with with the trustee have been excused I mean it's hard to say I mean I I've seen almost every judge exercise discretion at times I agree at times I don't you know and I think the the reason why that is is because we all have our own life experiences and we all have our own points of view and so you and I if we were sitting on the bench right now as judges and we each were hearing essentially the same case we had there's a good chance we would rule differently on it depending on our own life experiences that's the problem with this equitable powers of the court is that there's no bright-line rules here it's it's kind of a squishy area and what about the appeal so okay the court the trial court exercised discretion it goes up on appeal what power does the appellate court have in a case like this well just as a general rule 90% of trial judge decisions that are appealed over ninety percent of them are gonna be affirmed or confirmed by the appellate court so one in ten is gonna be reversed and so here you have a trial and appellate court that's not going to disturb the trial court's finding absent some kind of manifest or substantial error on the part of the trial court and you have a statute that says that a judge has this discretion right so why would the appellate court undo that decision yeah and the appellate court here said well we're going to review this under the use of discretion standard for Appeals and you're almost done with abuse we're almost done because under that standard the only way that the appellate courts can overturn it is if they conclude that the trial court's decision exceeds the bounds of reason and results in a miscarriage of justice right that's gonna be a pretty extreme case right where you're gonna get the so the appellate court affirmed the trial court in this case that's right you would expect that yes and in fact I don't know if everybody knows this but appellate judges when they look at these cases it's actually written in all the practice aides that we look at they actually try to find ways to support the trial court's finding so in every case that you appeal and you think you've got this great appeal and you're gonna go up and do something with it you're we were working against the appellate court because they're trying to figure out a way any way they can to make the trial court right even if they disagree personally with what the trial court did and I think most people would be surprised to hear that if you're not in the law profession I think it'd be surprising to hear that cuz I think what they I think what most people think in their minds is the appellate court wants to correct this wrong and of course if I lose in trial it's wrong and some of the appellate course you'd want correct that that's right and and then I think one step further that's not the appellate court but if you think about the next level of court after that is the California Supreme Court or the United States Supreme Court yeah those courts generally don't take decisions that are decided wrongly they take decisions where they want to set a policy for an area of the law so that's what they're looking for they're not necessarily you know you're the aggrieved party in this case the charity here you're gonna say well if the appellate court won't give it to me I'm gonna go to the California Supreme Court you got next to nothing chance of getting the Supreme Court to take this because they're only gonna take big policy matter cases and right now I don't think there's a policy matter of holding trustees accountable not under these scenario not under this scenario no the other thing that's interesting to me about this case is what about this aggressiveness on behalf of the charity to go after the trustee for 44,000 I mean we've seen this Keith from the beginning of our practice I started practicing in California in 2004 I think you were a year too earlier than I was I was always shocked at how aggressive charities are Minh cases where we've had charities that are very small beneficiaries of a trust and they'll throw a settlement off with all the primary beneficiaries because they've got to have every penny and every dollar that they're given under the trust and they'd rather wait 20 years to get it than to settle for a reasonable amount yeah I've seen a shift over time because when I first started right before when I was working as a paralegal before I became a lawyer we had cases and when I was first a lawyer I think the charities weren't quite that aggressive they're a little bit more willing to negotiate and get what they get and then over time especially last what five to eight years maybe they've gotten a lot more aggressive of going after these things and I think a lot of that has to do with the rise of what they call Planned Giving in the charitable world so charities have learned that they don't just have to go to people and ask for a donation currently but if you're part of a person's estate you can get a much bigger gift after they're gone right and they call that plan to giving so they want everybody to leave gifts to the charity as part of your state plan right and so they've gotten much more aggressive at going after these things but it's kind of surprised now that that's why I was kind of chuckling when the court said that they found the church's actions both unrealistic and not particularly charitable right because okay I mean it was kind of not particularly charitable right you know especially with poor Paul that he couldn't even take care of himself or afford the expenses so that's right what happens here if we change the facts up a little bit though when I changed the beneficiary from this charity to two individuals who are struggling to make ends meet year after year after year and they've basically lived hand-to-mouth and they've been waiting for this trust distribution for years what about their rights I mean they're they're people too and they've been harmed to by this because clearly the trustee too long to sell the property and secondly she made expenditures that she shouldn't have made right and we all agree to that the trial court agreed did that the appellate court agreed to that right so I wonder if that changes the dynamics a little I think so I think anytime you start changing around the facts and making the ultimate beneficiary different or more needy or more you know I think you've said for a long time that most judges make decisions because they want do what's right in their mind and then you can back into the legal analysis and I'm not saying that that judges do that in any nefarious way that's not a negative thing but I think that it's just human nature is that we want to see the right result and every person has their own idea of what the right result is and a lot of times there's multiple ways to get to the right result right right that's true you know this reminds me if we're kind of done with this this opinion I just wanted I just thought about judges making decisions that they feel good about and then backing themselves into it if you remember we had a client a few years back that he committed suicide and before he committed suicide he wrote an email just a few minutes before he committed suicide he wrote an email to all of his family members telling them that he wanted to change his trust trust that we had drafted for him and he put what he wanted to change and I it was a significant change between the beneficiaries right and then he even typed out his name at the end of the email right and he fires off this email he commits suicide and then we're hired by the family members who were gonna get more and so we moved forward in that case there the judge she wanted to do the right result she knew what this person had intended because she could read their email right and she knew they'd intended to make this change but of course what do you need to have a valid trust amendment yeah you have to have a signature and an email isn't a signature it had to be a wet signature right yeah what signature not a type signature that's why text can't be or can't be wills you can't text a will you can't email will write you have to print it out and sign it that's right and so in that case the judge didn't feel good about holding the black letter law against our position in the case rather the judge decided that a post-it note with a name on it posted to the email taped to the door by the decedent prior to his passing that the post-it note with his name on it was a signature to that amendment to the trust that email which essentially was an amendment so I don't know what would have happened that on appeal it was not appealed we were nervous we didn't want it to be appealed but you could see the judge there she wanted to find the fair result and probably didn't do exactly what the black letter law would have required it's hard to say yeah I mean I think it was stretching it a bit because the there was a signature on the post a note and then the post note was on a printout of the email but it worked for that case I guess so I mean this is justice this is how justice is done right is that it's a case-by-case basis well you know what's interesting about that is we we had appeared in front of a visiting judge from Los Angeles like a month before on that same case and he was he was an old curmudgeon of a judge and he was ready to make a decision in front of us without any further briefing we all showed up to the to the hearing and we obviously were the trustee we represent the trustee in that case and so the the beneficiary that ultimately got more under the the amendment had their own lawyer there yeah and that lawyer shows up and had to do some careful tap-dancing because this old curmudgeon judge was saying hey this is a legal determination I'm ready to make a decision right now and we were saying wait judge we want to give you some more briefing on this before you make the decision and then by the time that additional briefing was allowed and another judge was to hear it was the main probate judge again who heard it and not the visiting judge and that decision that that curmudgeon judge is gonna rule was against it being valid it looks like it looked that way and so you have one judge saying there's no way that this is a valid amendment you have another judge saying yes it is a valid amendment and I'm gonna use this signature on a post-it note too to justify my decision that's that's that's what we're dealing with well and that's what people need to understand too about our legal system is they're called judges for a reason they have to judge they have to make determinations and these are individuals with subjective experience which you alluded to earlier everyone has a different way of practicing law everyone has a different view some people are conservative some people are liberal some people are kind of in between you know the house in front of judge chairman once actually and many times but one time I was in front of him and he started talking I started I was there was an issue in the court was talking to the court and I said something about the equity versus the legal argument and and all of a sudden Karimun goes oh yes you see mr. Davidson is referring to Henry the eighth and I was thinking I am because Henry the eighth is the one who combined the courts of equity in the courts of law because equity used to be a petition to the king right and so if you couldn't get a the result that you wanted or it's a harsh result or an unfair result under the law you would petition the king that ended up being courts of equity right where the courts would be able to do justice that was kind of outside the black letter law and then those two courts were ultimately combined in our system they are combined so courts of law and courts of equity are not separate one court does both and so our probate judge in our probate court at times it's doing things that are on the law legal side at times it's doing things that are on the equitable side that's right and that's the history of that but I always remember him saying I guess he's referring to Henry the eighth I'm like I don't know what you're talking about right but then once he explained it I did but this is this is what we have and I think I didn't really think about it before but I think you're right that's why they're called judges they have to somebody has to make a decision somebody and this is and you're you know this appellate judge this appellate panel right here made up of I'm presuming three justices if it would have been another three who knows it might have gone the other way right what it would have been a different trial judge it could have gone the other way right but ultimately we have a system where whoever ends up being the judge or the justice in the case we rely on them because hopefully we're putting people in those positions that do have good judgment good experience and they're able to make a decision that we all can say is a final decision for the most part right and we can all figure out how we we react to that going forward one quick one quick final note on this the house sold for a hundred and thirty five thousand dollars more over those because they waited three years to sell it in the market why not right a lot of times people get upset about that cuz it's like well this trustee should have sold it in 2012 and they didn't I want to sue them right and we have to explain look you can sue them all you want but there's no damages that's what the property of the house went up right so what's any thoughts on that well the only argument I have to that is yeah that may be true but if you would have sold it in 2012 and I would have taken it I would have put it in a stock market and the S&P 500 is gone up 12 percent a year since then so I would have been able to capture that and more had you made the distribution to me now of course all those are hindsight arguments right but anytime you're excusing a trustee from intentionally and ignorantly in this case breaching the trust and I don't mean ignorant in a in a terrible way it's just that she probably didn't know any better when she made these decisions I think you have to be careful because those rules are there for a reason here you've got this big bag charity you know they're represented by highly paid highly compensated lawyers and are coming in and they're going against this Rosie Marie RV Tzu this poor little trustee and she probably was a you know again she when she testified I'm presuming she testified the judge was probably impressed with her credibility and that she was a nice person and she was doing the best she could under the circumstances what's interesting though is even in your argument when you said I could have invested it and made more what you're looking for there is damages right right if you don't have damages that's right you can't sue the trustee that's real harm no foul that's right that's how trust law works that's right so they might be liable for not selling the house but can you show there's true damages that come out of that yeah that's crazy yeah all right I think we discussed that case enough let's go to our opinion and Stuart do you have a some thoughts on on a point of practice that you want to share with us today well there's one that keeps popping up it pops up from us for us from time to time and I also see it popping up in the news of course the California Supreme Court just updated and adopted new rules of professional conduct for lawyers oh yeah this huge overhaul whole new slue they've been remembered and now we're reading them they've been reworded you know lawyers need to be regulated clearly lawyers need to be regulated it's not you know it's not a month that goes by where you're not reading something from the from the bar journal where some lawyer has taken somebody's a lawyer or clients funds and use them for them themselves it's unfortunate that those kind of things happen but lawyers need to be regulated there's one area where I think lawyers can do better and that's when there's been a breakdown in the lawyer client relationship and I'm guilty of this I'm sure you're guilty of this it hurts it hurts when there's a breakdown in that rely when the when the client can no longer trust you or tells you they don't trust you where the client refuses to go along with your sound legal advice where the client tells you to do something that you find ethical ethically you can't do right or that they're maybe intentionally lying and they're gonna lie on the record and you're against all those things well how do you in that relationship and probably the biggest reason that lawyers in relationships with clients is because the clients become upset at the lawyer because they don't feel the cases going the way that the lawyer promised them or whatever the case may be and so they quit paying the lawyer and so the lawyers not being paid any longer and so the lawyer says I want to disengage I want to get out of this case because you're not paying me where if we looked if we step back two months into that the lawyer needs to make sure they're communicating with the client right look there's bad things that happen at hearings it's not always going to go our way and this is what we're doing to make this right we're doing the best we can if you don't tell a client that right up front you're setting yourself up for a long miserable relationship because the client feels they're right there's not a client that we represent that doesn't that don't feel that they're a hundred percent right in most cases and they think that naturally once we communicate that to a judge the judge is gonna see it our way well the judge doesn't always see it that way the client becomes disenchanted with you upset and quits pain and now you're in a position where you're either gonna be continued working in an unpaid fashion or you're gonna end that relationship and I think we have to be much better at the way we end those relationships so I would say that everything must be in writing when you're doing this so there has to be emails letters I prefer emails myself but if you some lawyers like to write letters and I think you're gonna have to think about how do these emails look three years from now my mom used to tell me when I'd go to third grade that Jesus was sitting on my shoulder so you hear you want to think about the judge sitting on your shoulder what would you want in those emails and so you know you don't want to surprise the client you don't want to put the client in a bad position you want to tell the client look obviously you're not trusting me any longer you're not paying me which is a breach of the terms of our agreement you're upset at my performance as a lawyer you feel like I should be doing better for you I disagree with that but I'm just letting you know this is a breakdown in our relationship you we refuse to communicate with me I don't want to harm your case and so what I'd like to do is I'd like to suggest that you go find a law firm a lawyer that you are happy with that maybe will do a different type of job than we're doing on this case so please I'm letting you know right now would you please go out and look for another law firm a lawyer and in the meantime we can try to hold things together for you over the next couple weeks we won't miss any hearings we'll get discovery done we'll do all those things put all that in a writing yeah well and I think what people don't understand both lawyers and clients need to understand is not every lawyer client relationship is a good fit and so unfortunately there's times when the relationship does break down and if you don't have a good relationship and you don't have that trust built up and you're not seeing things eye-to-eye that relationship is probably never going to be repaired and you think about lawyers and clients have to develop a trusting relationship very fast under very difficult circumstances that's right I mean it's not that often like you imagine if you had to go out and get a new yet a date with in litigation so while you're dating okay with me somebody is is fighting you at you know actively trying to dislodge everything you're trying to build up I mean that's essentially the situation you're in but and it's okay I mean sometimes relationships don't work out and you do have to call it quits but yeah how you end the relationship is so vitally important in terms of writing it or whatever but how do you do that with the I mean usually by the time you get to the point where you're ending a relationship you know emotions are running high and everybody's really distrustful just trusting each other at that point and luckily it doesn't happen to us often but it's happened occasionally I think that's when the communication has to go above and beyond doesn't it that's right and I think the lawyer there has to be the adult no matter how they feel because it's never fun to hear someone say you're not a good lawyer right I mean an oral argument last year that really impact because the client was not happy with my oral argument and I thought I did a fantastic job but the client said she wasn't happy with what I did and it hit me hard because I'm thinking man I did I work hard on that I did a really good job be the adult and in that case we're still representing that person but right but be the adult and do that first email I said and then you want to follow up about once a week and another email and again what do you want in that email three years from now if a judge or a State Bar or if you're in a deposition you want to do the right things you want your behavior to be ethical you want it to be moral you want to be looked upon as as you you did the best you could under the circumstances with somebody that that's mad at you doesn't want to communicate with you is frustrated by the whole litigation experience and they're tagging it to you by the way they're hanging it on you because they're just frustrated but do you have anything to do it they're not yeah but yeah that's where you want to make sure you hand back the file promptly sign the substitution of attorney promptly we've had issues with that and return any unused retainer balance promptly well and yes and no and I think that what we have to distinguish there is if the clients firing us yes to everything you just said but if we're firing the client yeah that's a different story and I think what we have to do there is we have to progress we have to have a progression of these emails and communications to show that we did everything we could to try to get them to hire another lawyer we need to make sure that we put in the applicable statute of limitations we need to put in that there's possibly other statute of limitations please let us know if you found a new lawyer because we want to give them the file it's ready to go it's in Dropbox we're ready to transfer it over to the other law firm and by the way we want those lawyers to call us and at no charge to you we want to bring them up to speed on your case now sometimes you're not gonna hear back from the client cuz they're just so mad and upset other times you'll hear back they'll say fine I found a lawyer please bring them up to speed oh that's beautiful right you confirm all that in a writing you call the lawyer up you download the case to them as you know it the best way you can nice clean handover and they're off to the race and you've confirmed that in one final email and chances are you've done that properly and you're not going to hear anything back from that right yeah we do want to leave clients in his best position as we can even when the relationships ending we want them to feel good about as best as they can about at least we did everything we could to hand it off properly that's right yeah that's right now these are far and few between this doesn't happen that often in the practice of law but you know for example we've had a couple cases recently come into our firm where the clients were firing their previous lawyers right and that's where it goes to what you were just pointing out and that is hey the other lawyers they can't hijack the file they can't stop just not you know they can't let us know about hearings and motions and things like that they've got to bring us up to speed that's and that's actually in the rules they can't just let us go and while they can certainly charge for the duplication of the of the clients file that number one has to be in the engagement letter that they do that they can't hold it as a hostage until payment is made they still must give us the file and then if they want to go and force their rights under the contract for the duplication costs you know go at go be my guest go for it but you can't hold the file back you can't you know you can't take the position that you're not going to talk to the new attorney and not bring them up to speed on hearings that are coming up and those kind of things right exactly yeah no I agree completely so that's what I learned this week okay all right let's go on to do our asked and answered up there there we go on ask NASA we have some questions or at least one question right they came in this week Kayla maybe you can enlighten us on what is your numbers Kayla there she is hey Kayla hi what's the top question that you've been asked this week as potential clients are calling in and seeking our services yeah so this is a question that we get all the time trust beneficiaries calling in and wanting to know if they are entitled to a pre death accounting and specifically if the settler is incapacitated are the beneficiaries allowed to ask for an accounting when the successor trustee has already taken over all right well that's a good question I would say it's a definite maybe a definite maybe that's a the perfect lawyer answer isn't it well it could be could not what's the general rule generally it's gonna be we're gonna start off with an O which you know it's tough and people don't want to hear that and I don't like saying that which means it's almost always better when somebody's dead right unfortunately yeah isn't it true it's true and so you're sitting there telling the person well as soon as they're dead there's all kinds of things we can do for you well let me let me let me qualify that answer because I don't want to just have a blanket statement that it's always better when people are dead it's if you're a beneficiary of a trust it's always best when your rights have completely vested right meaning that your first up is beneficiary and there's nobody standing in front of you as a beneficiary right usually that means the beneficiary in front of you has to be deceased yes that's just with that without your help doesn't mean the beneficiary can't help the decedent misdemeanor misdemeanors don't count what's the misdemeanor for murder I mean is there one okay I had a case years ago where this lady killed her husband but only on a misdemeanor basis so he jumped on the car grabbed the windshield wipers that she was taken off so he stops the car when she breaks he flies off hits his head and dies but it wasn't intentional so it's not like she did she feel bad about it or was she like yeah oh she did yeah she was your client right yeah all I know is she wasn't precluded from inheriting because even though she was ultimately charged because the brother of this guy really pushed the DA to charge her with something she was charged but because it was pled out on a misdemeanor didn't count for the felony murder statute because in California as in most states I would think there's a statute that says if you kill somebody you can't inherit their money right makes sense right right so what happens here so people call in and usually mom or dad or let's say just mom is still alive and there's a bunch of shenanigans going on with moms money one of the other siblings are in there or caregivers in there and they want to go in and force the trustee of the trust to give an accounting is that right Kayla that's about how it goes okay so so how do we go in and force the trustee to give us you know we represent a child let's say the child is a beneficiary how does the beneficiary get an accounting the problem is is that with revocable trust the proba code specifically says that only the person who has the power to revoke has the powers have beneficiary everybody else even though their beneficiary they're not really a beneficiary that's right until the disease but let me throw in let's say they are a best-of beneficiary to the bypass trust portion of the assets is it wise to force the surviving spouse to give them an accounting of the bypass trust assets it's a great idea as long as you don't mind being disinherited from everything else and that's what people need to understand is there's no that's why I said it's always better after somebody's dead I mean both spouses are dead because they're everything's set in concrete right the rules the trusts are there we can interpret them and we can enforce them as law actually yes but if there's a surviving spouse especially in a blended family situation and you are saying gosh they keep using all of the assets out of the bypass trust when they should be using the survivors trust assets right that may be true but my advice to you is can we wait until she's gone especially if it's closed and you can never know when somebody's gonna die but if somebody's got all kinds of underlying health ailments and they're not gonna be here longer than a year or two it's almost always better to wait and then go for damages against their portion of the trust to get back to the bypass trust do you agree I yes I mean the ideal situation is you wait until after the parents are deceased because then they can't if you challenge even the irrevocable portion the bypass trust they can't disinherit you from the survivors trust because they're deceased now it could be that you're already disinherited from the survivors trust because your sibling or some bad actor came in and already figured that out right but you don't want to prompt that if you can avoid it and you don't want to give any excuses that's because those that'll be used against you later when you file and trying to attack the bypass trust while mom's still live right they're gonna say well that's why she disinherited you because you were attacking her that's right but what if mom does not have capacity what if she's in a coma not conscious no chances of coming out of the coma does that change your mind well sure then I'd be trying to get a an accounting of all the assets I want to see everything and why does that change well it changes for two reasons number one mom isn't likely to disinherit you she's in a coma hardly survivors trust ya and secondly when she's incapacitated there's some rights that you're gonna have as a beneficiary in her survivors and in the survivors trust since he can never be changed and so I think the court there is probably gonna allow an accounting yeah and the probate code even says that the child's rights as a beneficiary don't actually come into play while that trust is revocable so as long as mom's alive and she can amend it and change it provided that she has capacity so she's incapacitated than that that's an exception and now if the child can take action directly as if mom were deceased right here's the problem every time people call in and they say mom's incapacitated can I get an accounting what would your answer be well mom's probably not truly incapacitated from a legal from a legal perspective yeah I mean we have one case right now where there's a be trust and there was a demand for an accounting the B trust and sure enough the bad daughter in this case takes her mom who has dementia and they changed the trust well that still leaves us with the uphill battle of arguing that there was an exercise of undue influence or lack of capacity and I both know capacity is difficult argument to be able to prove at the time of trial right so when somebody calls in says well my mom doesn't have capacity and I want accounting really what the start of the conversation is no you're not entitled to an accounting but if you want to pursue this first of all whether or not your mom has capacity the court ultimately has to make that decision but we won't know until the court says yes or no and if the court says no mom has capacity then you're you're in big trouble the other option is you go in on a conservatorship and try to get mom conserved and put a conservatorship in place because then the conservatory can ask for an accounting of the trustee right that's right good idea terrible idea why is that well again you want people dead when you're doing these things I don't know if I made that clear yeah I did the problem is you're gonna go for conservatorship of mom and what if you lose what if mom's not conserved mom's gonna not be so happy that you wanted to have her incapacitated so she's only gonna disinherit you or the bad sibling bad actor is gonna disinherit have mom disinherit you and they're gonna say well the reason is because you sued her that's running her concern that's right so you're damned if you do and damned if you do that's why it's just better to sit back especially you know when we see cases where there's multiple millions at stake we say look there's enough money in the survivors trust more than likely that you can make up for the losses to the bypass trust people say to us - you know what happens if they run off and burn the money in Vegas I'm sure that case is out there but I have never seen that case and the reason I don't believe I've ever seen that case and all of my time of practicing I haven't seen that because people that would probably go and burn the money in Vegas they don't see the money as anybody else's they see it as their money right and the minute they see it is their money they're not going to burn it they're guarding it they're guarding it that's right and so you know there's a lot of those cases if you're if you have a drug addict that yeah that's a whole new set of issues that you have to deal with but in most cases people aren't gonna run to Vegas and burn the money because they think oh the lawyers are gonna get this or maybe my other half brother or sister are gonna end up getting this they always believe it's their money right yeah I mean that's it's a tough answer to have to say yes it's possible to get in accounting but it's you shouldn't that's right you just shouldn't it's tough that it's the worst consult that I ever do is when there's still a parent still living and it's a hard console because the and the clients this is their first conversation with having this subject matter discussed we've seen it time and time again and they keep trying to figure out a way to can't we do this can't we do that they want to help their parent yeah like who would who wouldn't want to help their place you want to help your parent that's right but the problem is is that there's not a lot of good ways to help a parent especially when and this is true even if you have good planning in place because if you have a bad actor that comes in they can wreak havoc with even a good plan that's true I mean yes you should have planning for sure yeah I my other rule other than people should be dead before you litigate these matters it's better to steal some it's better to steal five million dollars from somebody by way of an inheritance than to rob twenty thousand dollars from a bank if you go in and you rob a bank for twenty thousand dollars and get caught how long are you go to jail for a long time a long time at least 20 years minimum right right you steal five million dollars from a decedent how long you go to jail for yeah I don't think you'll even be prosecuted it's a civil matter it's between family members that's right we've heard it all that's right I heard it all so if you're a really fraudulent person yeah don't give up you're thinking about robbing a bank don't go find a nice old lady a nice old man cozy cozy up yeah we've heard that stories just kidding don't do that that's wrong in every way okay so do your fraud with old people and you want people dead we've learned a lot today yes I feel I feel good about this one yes this broadcast okay well that's all that we have for today I want to thank you for watching and we will see you next time and I want to thank Kayla for joining us on this one that was a say goodbye Kayla we'll have Kayla join us more often I think she's probably a little bit easier to look at than the two of us I would imagine I'm gonna like cut off the bottom part of the hair and put it on all right we'll see you next time all right.