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Friday
Aug192016

Alzheimers?

The average survival rate is eight years after being diagnosed with Alzheimer’s – some live as few as three years after diagnosis, while others live as long as 20.  Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

            Until there’s a cure, people with the disease will need caregiving and legal advice.  According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease.  Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home – often receiving care from family members.

            If the diagnosis is Alzheimer’s, call elder law attorney for help.

Wednesday
Aug032016

Real estate soars

Recently one of our clients prevailed in a Will contest and as a result the Will she fought for was decided by the court to be the one to be probated.  One of the assets in the probate estate was a piece of real estate in an impoverished part of Contra Costa County worth very little.  We were able to find a realtor who was quite sharp and this realtor found a buyer for the property at a price we thought was more than reasonable.  There were only two beneficiaries of the estate and of course, our client the executor felt that the price was right, but the other beneficiary who had lost the Will contest objected, indicating that he felt that the price was too low.  Because of his objections, we had to go to get court approval for the sale which was already to close and in escrow and obviously it was inconvenient to postpone the sale to get court approval.  Were we wrong.  Real estate is so hot now in the Bay Area that even junk real estate value has exploded.  At the sale the original purchaser finally prevailed but he had to ward off 9 overbids in Probate Department 14, Contra Costa County Superior Court.  The Judge was like an auctioneer on that particular morning.  The final sales value was almost 30% higher than the original sales figure.  The extra work was more than compensated for and everybody went home happy, which is nice for a change.

Friday
Jul292016

FIRST BORN?

One of the most dangerous practices of people who are doing a Will or trust is to name their oldest child automatically as the trustee or executor of their trust or Will upon their demise.  Time after time that particular person named just because they are the oldest turns out to be probably the weakest pick of the litter.  When you are advising a client on the subject, you must explore the background of each child and try to get the parent to make the best selection not just the one that is the norm which is to name the eldest child.  A large percentage of Will and trust litigation is based upon the fact that people do not select the person on merit but simply on “first born”.  Even if they only have one child this person’s ability should be scrutinized as well.  In fact, no matter how many children they have if none of them can meet what you think are proper criteria for the job, let them know.   In fact, one of our most recent cases the youngest son who was a medical doctor and was fully able to handle his deceased mother’s affairs wasn’t able to do it because his older brother had been appointed trustee of the trust.  Not until the older brother who was essentially unemployed, uneducated, etc., and who completely messed up his mother’s affairs were we able to get the older son in as substitute trustee for his brother who was eliminated by the court.

Tuesday
Jun282016

Judicial References

In these days of dwindling judicial resources, is there any way to ensure that a client’s case receives the prompt and thorough attention it deserves?

            The answer is yes.  If one considers a judicial reference – a term of art for a little-known procedure whereby the parties appoint a retired judge, or attorney-neutral, to carry out functions   usually performed by a sitting judge.  

            The authority for judicial references stems from two sources.  The first is the California Constitution, which provides for appointment of temporary judges.  (See Cal. Const., Art. VI § 21).  The Code of Civil Procedure also authorizes judicial references.  Specifically, the code provides for the appointment of a referee to hear all or part of a given case.  (See Cal. Code Civ. Proc. §§ 638, 639.)  Under section 638, the parties may agree to the appointment of a referee to determine “any or all of the issues” in the action (§ 638(a)), or to “ascertain a fact necessary to enable the court” to decide the case (§ 638(b)).

            The parties may agree to a judicial reference before or after the dispute arises.  Under section 638, a reference may be for as much, or as little, of the case as the parties desire; the scope of the reference can be expanded by stipulation at any point in the litigation. 

            So if your case is “backed up on the court waiting list” you might give this a try.

Tuesday
Jun212016

In a recent case we represented an elderly woman who intentionally destroyed her father’s formal Will.  She found the Will in his papers when caring for him.  The Will left his substantial estate to a younger lady friend that the father had met after his former wife and mother of his children had passed on.  She in essence was his girlfriend.  After the father’s death our client sought to become the administrator of her father’s estate (without Will) and the lady friend opposed it coming forth with a signed but not witnessed copy of the father’s Will and seeking its admission.  One of our main themes in the litigation was to protect our client from being held liable for financial elder abuse and punitive damages for her admitted actions in destroying the father’s Will.

Our client and her family were “old school” and firmly believed that the family came first in all things.  The family had all believed in that credo virtually forever and they always abided by it until dad broke away from the tradition leaving everything in his estate to the young lady friend.  Our client firmly believed that in destroying his Will, she was doing the right thing for all of her brothers and sisters and their children, including herself.  We were able to argue successfully that a “cultural defense” was applicable in this case.  The premise of such an argument is the notion that culture shapes cognition and conduct.  Because culture strongly influences human motivations, the legal system should take cultural imperatives into account.  In pluralistic societies, it is especially vital that judges acknowledge variation and motives to better understand the behavior of individuals who come before them.  In general, justice requires looking at the contexts of individuals’ actions; otherwise, it is not possible for judges to understand what has transpired.  Judges are sometimes incapable of understanding the cultural context of actions largely because they seldom come from the background of ethnic minorities and indigenous peoples, and they have not been exposed to their way of life.

Cultural defenses are also raised in other civil cases.  Litigants ask judges to consider their traditions in custody battles, in decisions over whether to order medical treatment for children over parental objections, and employment discrimination cases where plaintiffs face termination because they wear symbols of their religious or ethnic identities, and in lawsuits over the negligent treatment of corpses.  The common thread of all these cases is that courts are asked to take the cultural background of the litigant into account.