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LAWYER Volume 27, Number 4 | July 2014

Estate Planning & Probate assets, guardians, conservators, court, conflict, expenses, property, liability, rules, security, fiduciary, retirement, death, taxes, succession, planning, estate, probate, health care directive, power of attorney, trust, partner, trustees, executors, duties, capacity, inheritance, goals, gifting, distribution, wealth, strategy, mentors, passwords, digital assets, breach of trust


Perry A. Novak Senior Vice President - Investments

UBS Financial Services, Inc. 2185 N. California Blvd., Suite 400 Walnut Creek, CA 94596 (925) 746-0245 perry.novak@ubs.com ubs.com/team/thenovakgroup

You know there are more questions you should be asking, but you're not sure what they are. You want to stop procrastinating and make a decision, but you don't feel well enough informed. You know where you want to be, but you don't have a plan that will get you there.

That's where we come in. The Novak Group at UBS Financial Services, Inc. Providing wealth planning and asset management services to affluent families, business owners and professionals since 1983.

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Contra Costa  2014 BOARD OF DIRECTORS Stephen Steinberg President Nicholas Casper President-Elect Candice Stoddard Secretary Elva Harding Treasurer Jay Chafetz Ex Officio Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde Mary Carey

Michelle Ferber Peter Hass Reneé Livingston Katherine Wenger James Wu

LAWYER Volume 27 Number 4 | July 2014

The official publication of the

B   A   R        A   S   S   O   C   I   A   T   I   O   N

FEATURES TOP 10 REASONS TO PLAN FOR SUCCESSION OF YOUR LAW PRACTICE by Oliver Bray

REVISIONS TO THE PROBATE LOCAL RULES: A WORK IN PROGRESS

CCCBA   EXECUTIVE   DIRECTOR Lisa Reep | 925.288.2555 | lgreep@cccba.org Jennifer Comages Theresa Hurley

ESTATE PLANNING FOR DIGITAL ASSETS: HAS TECHNOLOGY TAKEN US BACK TO THE WILD WEST?

Membership Coordinator Associate Executive Director

Emily Day Barbara Arsedo

Systems Administrator and LRIS Coordinator Fee Arbitration Coordinator Communications Coordinator

ATTORNEY PARTICIPATION IN BREACH OF TRUST

CONTRA COSTA LAWYER Harvey Sohnen Suzanne Boucher 925.258.9300 925.933.1500

Nicole Mills Matthew Guichard

COURT LIAISON Stephen Nash 925.957.5600

PRINTING Steven’s Printing 925.681.1774

PHOTOGRAPHER Moya Fotografx 510.847.8523

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by Andrew R. Verriere

CO-EDITORS EDITORIAL BOARD

925.942.5100

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by Matthew M. Hart

Dawnell Blaylock

BOARD LIAISON Candice Stoddard

6

by Scott Poling, Esq.

CCCBA main office 925.686.6900 | www.cccba.org

925.351.3171

5

925.459.8440 Elva Harding 925.215.4577 Patricia Kelly 925.258.9300 David Pearson 925.287.0051 Samantha Sepehr 925.287.3540 Marlene Weinstein 925.942.5100 James Wu 925.658.0300

ESTATE PLANNERS AND BUSINESS ATTORNEYS: KEEPING ONE ANOTHER IN YOUR PERIPHERAL VISION

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CAPACITY AND UNDUE INFLUENCE

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by Bruce Ramsey and Deborah Moritz-Farr

by Janet Li and Timothy Mahi’ai White

TRUSTS CAN BE A KEY ELEMENT IN FINANCIAL PLANNING FOR TODAY & TOMORROW

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by Todd Friedman

DEPARTMENTS The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

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INSIDE | by Deborah Moritz-Farr

20 CENTER | Estate Planning & Probate Symposium [photos] Lisa Reep’s Retirement Reception Invitation MCLE Spectacular SAVE THE DATE 30

INNS OF COURT | by Matthew Talbot

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RESTAURANT REVIEW | by Suzanne Boucher

34 COFFEE TALK: When have you (in your non-estate planning practice) advised your clients to consult an estate planner, and why? 35 CALENDAR 38 CLASSIFIEDS

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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inside

S

omewhere a little past the midpoint in our career, we find ourselves planning for the future and beginning to think of our succession plan, but also glancing into the past and at what we have accomplished. When brainstorming for that topic, I came up with more questions than answers:

• Why did you become an attorney? • What motivated you to pursue this career? • Who mentored you? • What attributes did your mentor(s) have that inspired you to emulate their attitude and professionalism? • What have you learned in all these years of practicing law that you wished you had known or embraced from the beginning?

These questions, and more importantly your reflective responses to them, may help to re-harness that energy and enthusiasm you began your law practice with and reinvigorate passion that will propel you through the next stage of your career.

Deborah Moritz-Farr

I am reminded on a regular basis that I embraced this career, and my particular discipline, so that I might lend a helping hand to someone who needs it and be a beacon of light for those who find themselves in the darkness of grief due to the loss of a loved one. The area in which I now practice is directly linked to the reason I became a lawyer many years ago—to bring added value to my community. My mentors along the way paved a clear and welcoming path for me to follow and learn all that I could to accomplish that goal. As you read this month’s edition, I hope you are inspired to contemplate how your practice area dovetails into others, and that you consider the opportunities presented to you in your practice where you can facilitate a more integrated and organic approach to a client’s legal needs, and how you can improve the services you offer. Looking at those areas may also lead you to consider how you may add value to those entering into our profession, how you can pass on the knowledge you have gained and inspire another, and how you can renew your enthusiasm for practicing law. s

Deborah Moritz-Farr is a partner at the Martinez law firm of Turner, Huguet, Adams & Farr. Her law practice is centered on Estate Planning, Trust Administration, Trust Termination and Probate. She graduated from the University of California at Berkeley in 1997, and in 1990, received her J.D. from the University of the Pacific, McGeorge School of Law in Sacramento.

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S N O S A E R 0 1 P f o O n T o i s s e c c u S r o f an to Pl ce i t c a r P w a L r u o Y

1. 2.

Retirement, disability or death. One of these will happen to you.

Like your personal assets, any value of your practice will be lost or greatly diminished without succession planning. Estate plans aren’t just for sissies. Your practice is part of your estate.

by Oliver Bray

6. 7. 8. 9. . . . . . . . 10.

3. 4. 5.

If you’re a member of a large firm, you really need a succession plan. If you’re a member of a small firm, you really, really need a succession plan. If you’re a sole practitioner, you really, really, really need a succession plan.

Fiduciary duties—you actually have them. Closing a law practice can be complicated. Don’t burden your spouse or family without a succession plan.

Impress your clients with the fact that you have planned ahead for the unexpected. Complete your succession plan before: Pregnant women offer you a seat on the bus. You actually open and read the AARP mailers. You forget basic things, like your secretary’s name. You start repeating yourself on pleadings or conversations. Your 30-year-old neck ties are back in fashion. You fall asleep during conference calls. You start repeating yourself on pleadings or conversations.

When you go to heaven, will your practice go to hell?

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Revisions to the Probate Local Rules: A Work in Progress by Scott Poling, Esq.

S

omewhat quietly during the past year, the Contra Costa Superior Court embarked on a comprehensive review and overhaul of the Local Rules. As a part of that larger project, Judge Sugiyama assembled a probate-centric committee to recommend updates to the rules governing practice in the Probate Department (or the Probate Division, as it is now collectively known).

The probate provisions were originally developed in this format to provide the Probate Court with flexibility; “Rules” are not easily changed, while “Guidelines” can be updated fairly quickly to reflect the ever-evolving world of probate practice. This seemed to be largely a distinction without a difference to the attorneys appearing in Department 14, though it did make the layout a bit confusing.

The committee—consisting of court administration, probate examiners, court investigators and attorneys— worked diligently over the last few months to recommend substantive changes. Reaching a consensus was often challenging and, as might be expected, most of the changes are merely clarifications and minor “tweaks” to the existing language.

To provide some consistency with the rest of the Local Rules, the court will likely incorporate/renumber the provisions of “Appendix A” into the main section of the 2015 Local Rules.

However, a few of the changes will definitely be of interest. A public comment period will be open from July 21, 2014, to September 8, 2014, so there is still time to speak up about the proposed changes.

Housekeeping Issues: Rules vs. Guidelines If you’re familiar with the format of the 2014 Local Rules, you’ll know that the actual Probate “Rules” consist of only two pages (i.e., Rule 6, “Probate Department”). However, an additional 35+ pages of Probate Court “Guidelines” exist as Appendix A (with all of its various subsections, parts and attachments).

lisa m. west licensed professional fiduciary

30 years experience Probate-Trust Paralegal 3445 Golden Gate Way Lafayette, CA 94549 (925) 283-6998 l.neiger@mac.com

Substantive Changes of Note At the time of this writing, the 2015 proposed Local Rules have not been posted for comment (and are therefore subject to revision in the interim). However, below are some of the more substantive changes that I believe will be included:

A) Streamlined Fee Procedure Available for Court-Appointed Counsel [New] Rule 116(e) will allow Court-Appointed Counsel to submit moderate fee petitions (i.e., less than $5,000) ex parte, so long as 15-day’s notice of the ex parte submission is provided.

B) Notice Additions Under “Appointment of Executors and Administrators” [New] Rule 302(e) will now require that a copy of the underlying Petition be served along with the initial Notice of Petition to Administer Estate. [Revised] Rule 303(a)(6) will now require a Notice of Petition to Administer Estate be mailed directly to trust beneficiaries (in addition to the Trustee), where the Trustee is also the proposed Personal Representative.

C) Bond for Out-of-State Executors [Revised] Rule 305 will require nonresident Executors

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to post bond of at least $20,000 (even if all beneficiaries waive bond). The requirement is intended to protect creditors who might lack sufficient remedies against an out-of-state Personal Representative.

D) Final Conservatorship/Guardianship Account within Six Months of Termination [New] Rule 825(e) requires the Final Account of Conservator or Guardian to be filed within six months of the termination date (e.g., death of the Conservatee). If the account is not filed within the six-month period, the fiduciary is required to file a status report addressing the delay.

E) Approval of (Nominal) Fees Without Supporting Declaration A long-standing, though seldom-used, provision of the Local Rules allowed approval of annual fiduciary fees of up to $1,000 without need (and expense) of a supporting declaration. [Revised] Rule (Attachment 2, (f)(4)) will now allow approval of an annual fiduciary fee of up to $1,500 (for non-professional fiduciaries) and up to $3,000 (for professional fiduciaries) without a supporting declaration. This should reduce some of the costs associated with these smaller cases.

F) No Change to the Maximum Hourly Rates While still subject to an eleventh-hour change, the standard “Maximum Hourly Rates” for attorneys and professional fiduciaries are likely to remain at $325 per hour and $125 per hour, respectively. A wise person once said, “a camel is a horse designed by committee.” While not perfect, the 2015 changes to the Probate Local Rules certainly represent a positive, collaborative effort of the court, administration, and the Contra Costa County Bar Association. The process is not yet complete! As a reminder, the public comment period is open through September 8, 2014. s Scott Poling is a graduate of King Hall, UC Davis. His practice focuses on conservatorship, trust and estate administration, and related disputes, representing individual and professional fiduciaries. He also handles contested conservatorship matters, often serving as court-appointed counsel for proposed conservatees. Mr. Poling serves on the Board of the CCCBA Estate Planning & Probate Section, and regularly sits as Judge Pro Tem in the Probate Department of the Contra Costa Superior Court. He can be reached at (925) 256-7000 or Scott@PolingLaw.com.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Estate Planning for Digital Assets: Has Technology Taken Us

Back to the Wild West? be challenging or impossible. One would hope that the law is keeping up with technology but, as the title implies, we are back in the Wild West in many ways.

What is the Problem?

I

love computers and technology. I was a Senior Server Engineer for 20 years before I became an Estate Attorney six years ago. As over two trillion dollars under management flowed through some of the servers I managed, security was extremely important.

The first thing we did to keep things secure was to tell users “do not write passwords down.” The second thing we did was to make sure users changed their passwords every 60 days and require them to use complex passwords. When clients come to us following a death, the first question we ask is “What are the deceased’s assets and where are they kept?” Sometimes everything is well documented and we guide them through getting control of the assets. However, sometimes nothing is documented and they have no idea what assets the decedent had. In those cases, I suggest they go through the mail and have future mail rerouted to watch for bills, bank statements, etc. However, as we all know, financial accounts are trending towards being paperless.

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California Law is out of Date

by Matthew M. Hart Bills and statements are now delivered via email. If a client does not have the password to the email account, what can be done? In addition to email accounts, there are digital assets in the form of blogs, photos, music, software, Facebook and Twitter accounts and the like. Unlike other assets such as real estate or money held in a financial institution, there are digital currencies such as bitcoins that have their private key (the only way to access the currency) stored on a person’s computer or at a digital exchange in a secure format with password access. Getting access to the email and digital assets when the owner cannot provide the information because of incapacity or death can

California currently has no statute that would cover this issue except Cal Bus Prof § 17538.35, which covers when and how an email account can be terminated by the email provider. Moreover, trying to use California law, if it existed, could be problematic for a company that is out of state, for jurisdictional reasons. The federal law in this area is covered by the Computer Fraud and Abuse Act (CFAA) (18 USC §1030) and the Stored Communications Act (SCA) (18 USC §§2701–2712), which cover who can access accounts, among other things. Summarizing the law, the power to take control of a digital asset has to be explicit as a power the fiduciary can take on behalf of the client. More troubling is the following impact of the federal law: Even if a fiduciary has gained the password to an account, if the fiduciary does not have permission that complies with the federal law, they are in vi-


olation of the law by accessing the accounts. Therefore, general provisions in a power of attorney or a will that allow the fiduciary to take control of all assets are not enough. Colleagues who were facing this issue contacted companies such as Yahoo and Google, which stated that they will not give a fiduciary access to an account unless the source document for their power specifically mentions the category of asset, even if the court has granted the fiduciary general powers in a probate administration. The reason they cite is that without that express permission in the documents, the fiduciary is violating federal law.

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Possible Solutions Although prior to becoming an attorney I counseled clients not to write down passwords, when presented with estate administration issues, I favor just the opposite approach as it can save the fiduciary a lot of time and energy in the end. Writing passwords down can be a much more practical and effective approach than relying on companies to give access to a fiduciary who does not have the password. Where to store that list is an issue in itself. There are digital vaults and physical vaults. The digital vaults can offer things such as a single password to access the rest of the passwords; however, hackers have a knack for finding flaws in any computer code. If found, a hacker could gain access to all of the passwords. In addition, there is the issue of where to store the one password that produces access to the digital vault. Physical vaults such as a safe deposit box ensure that there is no hacker involved, but they can be cumbersome to keep updated; a change in the password means a trip to the bank. There is no perfect answer. When I was confronted with a death in my family, it was easier to handle matters because the passwords

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Digital Assets

lating federal law by accessing the account.

cont. from page 9

It may be possible to assign the assets to a trust; however, that may be problematic as digital assets are much more likely to change than traditional assets such as bank accounts and real estate. Trying to overcome the frequency of change by listing email accounts on the schedule as “All email accounts” is probably not specific enough, just as “All real estate” is not specific enough for an 850 petition. Moreover, some assets such as bitcoins may not have an identifiable way of being listed. Additionally, what if new types of assets are created by technology that we couldn’t anticipate for the schedule?

were written down. The Uniform Law Commission is meeting this summer to hopefully approve the new uniform law entitled “Fiduciary Access to Digital Assets Act.” If that commission does approve this new law, perhaps California will take notice and either adopt the law or put a similar one in place. As California has not tackled this issue yet, it is in our clients’ best interest to put specific language in estate planning documents to give the fiduciary the power to take control of the digital assets under federal law. This assumes, however, that the client will tolerate someone reading their email and having access to their photos post-mortem. It may be time to add to our interview checklist some discussion regarding this power. Adding specific language to the durable power of attorney and will should be sufficient to give the fiduciary the proper authority when contacting companies to gain access to the asset under the federal law. Also, having that language in the document keeps the fiduciary from violating the federal law by giving the fiduciary permission to access the account. As stated above, without that language in the documents, the fiduciary is vio-

Regarding the specific language to insert into a will and durable power of attorney, I recommend using CEB’s language, which can be found in their drafting treatise (CEB, California Will Drafting §33.52; CEB, Drafting California Revocable Trust (Pour Over Will) §22.9; CEB, California Powers of Attorney and Health Care Directives §5.11A). When I started to put this language into documents, CEB didn’t have specific language to refer to. Instead, I have been using language that was shared with me a few years back by an Oregon attorney, Michael Walker. He has given me permission to print his current language for durable powers of attorney, which can also easily be adapted to be used in a will. The language is as follows:

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“Digital Assets. To take any action with respect to any Digital Assets owned by me as my agent shall deem appropriate, including, but not limited to, accessing, handling, distributing, disposing of, or otherwise exercising control over or exercising any right (including the right to change a terms of service agreement or other governing instrument) with respect to such Digital Assets. My agent may engage experts or consultants or any other third party, and may delegate authority to such experts, consultants or third party, as necessary or appropriate to effectuate such actions with respect to the Digital Assets, including, but not limited to, such authority as may be necessary or appropriate to decrypt electronically stored information, or to bypass, reset or recover any password or other kind of authentication or authorization. This authority is intended to constitute “lawful consent” to a service provider to divulge the contents of any communication under The Stored Communications Act (currently codified as 18 U.S.C. §§ 2701 et seq.), to the extent that such lawful consent is required. For purposes of this Power of Attorney, “Digital Assets” shall include files stored on any of my digital devices or digital owned by me, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smart phones, cameras, electronic reading devices and any similar digital device which

currently exists or may exist as technology develops or such comparable items as technology develops, regardless of the ownership of the physical device on which the digital item is stored. “Digital Assets” shall also include, without limitation, emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts and similar digital items which currently exist or may exist as technology develops or such comparable items as technology develops, including any words, characters, codes, or contractual rights necessary to access such items, regardless of the ownership of the physical device upon which the digital item is stored.” While working in the computer field, I was often reminded that the only constant is change. The same can be true in law. Keep watching for new legislation, and have a conversation with your clients about what would happen if no one had access to their digital assets. s Matthew M. Hart is a solo practitioner with offices in Antioch and Walnut Creek. He focuses on Estate Planning, Trust Administration, Probate and Business Formation. Matthew@MatthewHartLaw.com

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Attorney Participation in Breach of Trust by Andrew R. Verriere

T

rust litigation is frequently riddled with allegations of breach of trust. These petitions usually list myriad actions purportedly in violation of a host of sections of the Probate Code, often focusing on sections 16000, et seq.

by the former trustee (who was, at the time, an income beneficiary of the trust) designed to maximize income at the expense of principal of the trust.3 The complaint went on to allege that the attorneys purposefully drafted and filed accountings

However, while less frequently alleged, attorneys should be aware that their services in representing trustees who commit such breaches can, under certain circumstances, expose the attorney to liability for participation in breach of trust. This article will examine the case law giving rise to this common law cause of action.1

“The Court of Appeal ... held that the active concealment, misrepresentation to the court, and self-dealing for personal financial gain by an attorney amount to participation in breach of trust.”

Origin of Participation in Breach of Trust in California California first seriously considered the cause of action for participation in breach of trust in Pierce v. Lyman, 1 Cal. App. 4th 1093 (1991). In Pierce, the plaintiffs, the successor trustee and a guardian ad litem for remainder beneficiaries, filed an action against a number of parties including two former attorneys for prior trustees.2 The complaint alleged that the attorneys knew of numerous breaches of trust by the former trustee, including an investment scheme devised

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with the court designed to conceal these breaches of trust, and otherwise aided and abetted the concealment of the nature of the trustee’s breaches from the court. The complaint alleged that the attorneys personally gained from their actions by receiving fees and investment opportunities.4 The plaintiffs claimed that these actions constituted breaches of fiduciary duties.5 The trial court sustained a demurrer to all causes of action against the attorneys.6 On appeal, the Court of Appeal determined that a claim for breach of fiduciary duty could not survive, as there was no privity between the attorneys and the plaintiffs.7 However, citing to common law causes of action developed in other states, as well as the few reported

cases in California addressing thirdparty liability for colluding or conspiring to breach a fiduciary duty, the Court of Appeal held that a cause of action for participation in breach of trust could be maintained against the attorneys.8

In particular, the Court of Appeal relied upon a California Supreme Court case: Doctors’ Co. v. Sup. Ct. (Valencia), 49 Cal. 3d 39 (1989). In Doctors, the Supreme Court, in holding that attorneys, agents and employees of a fiduciary could not be sued in relation to a breach of a particular portion of the Insurance Code, specifically carved out certain circumstances in which an attorney could be liable: “It remains true, of course, that under other sets of circumstances, attorneys may be liable for participation in tortious acts with their clients, and such liability may rest on conspiracy ... For example, an attorney who conspires to cause a client to violate a statutory duty peculiar to the client may be acting not only in the performance of a professional


duty to serve the client but also in furtherance of the attorney’s own financial gain.”9 The Court of Appeal in Pierce interpreted Doctors, as well as other cases, as imposing liability for the actions alleged against the attorneys. Specifically, it identified the purposeful drafting and filing of accountings in order to conceal breach of trust, precluding the disclosure of the breaches of trust to the court or the beneficiaries, and the advisement to make risky investments in violation of the terms of the trust as grounds for a cause of action for participation in breach of trust.10 The Court of Appeal also distinguished “the simple rendering of legal advice” and “mere knowledge of the breach of fiduciary duty” from the allegations in the complaint.11 While the Court of Appeal in Pierce did not set forth a test by which to determine participation in breach of trust, it held that the active concealment, misrepresen-

tation to the court, and self-dealing for personal financial gain by an attorney amount to participation in breach of trust.12

Developments in Participation in Breach of Trust Since the decision in Pierce, courts have continued to evolve the common law cause of action for participation in breach of trust. In City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App. 4th 445 (1998) and Wolf v. Mitchell, Silberberg & Knupp, 76 Cal. App. 4th 1030 (1999), the Court of Appeal continued to expand the scope of acts that give rise to a cause of action for participation in breach of trust.

This ruling was summed up by the Court of Appeal in a brief reference to Pierce: “[B]eneficiaries of a trust may sue third parties who, in order to advance their own financial advantage, have actively participated with a trustee in breach of the trustee’s duty to the trust.”14 In Wolf, the Court of Appeal again set forth the allegations giving rise to a cause of action for participation in breach of trust:

In City of Atascadero, the Court of Appeal found a complaint sufficiently alleged “aiding and abetting breach of fiduciary duty” by alleging “active concealment, fraudulent misrepresentations, self-dealing for financial gain, and direct participation in breach of fiduciary duty.”13

The allegations of the complaint in this case meet the requirements of Atascadero and Pierce v. Lyman for a claim by a beneficiary directly against a third person who participated in a trustee’s breach of trust. The complaint alleges that MSK and Arenberg performed legal services intended to prevent Robert from discovering the dissipation of trust assets and the trustee’s inappropriate investments, advised Robert to waive his rights to on-going accountings that

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

13


Breach of Trust, cont. from page 13

would have revealed the trustee’s wrongful conduct, and made misrepresentations of material fact concerning the trust. The complaint further alleges that MSK and Arenberg intended that Robert not learn of the misconduct of the trustee because they received a greater amount of fees from David and Fred and “wished to keep receiving a greater amount of fees.”15 Again, the allegations giving rise to the cause of action revolve around actively assisting the trustee in breaching his or her duties, and deriving a financial benefit therefrom (however, this advantage must be “over and above ordinary professional fees earned as compensation for performance”).16

Attorneys, at times, end up representing a trustee who has, in fact, breached his or her fiduciary duties. In order to protect oneself from liability, an attorney must be vigilant in determining what the terms of the trust demand, the rights of the beneficiaries, and defining and maintaining the line between advising the client against breaches of trust and assisting the client in acts in breach of trust. In short, the easiest way to insulate oneself from such allegations is to always start with the question: Is this action by the trustee in the best interests of the beneficiaries? If not, assisting the client in the commission of the act without the blessing of the court could lead an attorney down the path to a claim for participation in breach of trust. s 1

There are a few federal cases with a much more limited view of this cause of action. In particular, Nelson v. Union Bank

of California, N.A., 290 F. Supp. 2d 1101 (C.D. Cal, 2003) and Nasrawi v. Buck Consultants, LLC, 2010 WL 2629071 (E.D. Cal. 2010) discuss the holdings of Pierce v. Lyman, 1 Cal. App. 4th 1093 (1991), as well as the cases relied upon by Pierce, coming to a much more limited conclusion regarding the scope of a cause of action for participation in breach of trust. Due to space limitations in this article, those cases are not discussed, but should be reviewed for a more complete view of the jurisprudence on this topic. 2

Pierce v. Lyman, 1 Cal. App. 4th at 109798.

3

Id. at 1099.

4

Id. at 1100.

5

Id.

6

Id. at 1100-01.

7

Id. at 1102.

8

Id. at 1103-06.

9

Doctors’ Co., 49 Cal. 3d at 46 (emphasis original) (internal quotations and citations omitted).

10

Pierce, 1 Cal. App. 4th at 1105-06.

11

Id. at 1106; see also Id. at 1103, n.6 (stating that while the failure to notify a beneficiary of a breach of trust may be ethically reprehensible, it does not violate any legal duty).

12

Id. at 1106.

13

City of Atascadero, 68 Cal. App. 4th at 484.

14

Id. at 483 (citing Pierce, 1 Cal. App. 4th at 1103-06).

Northern California Mediator / Arbitrator 18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice

Roger F. Allen 510.832-7770 Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA 94612

rallen@ericksenarbuthnot.com

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JULY 2014

• Training includes Mediation Course at Pepperdine University 1995 • Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel • Settlement Commissioner, Alameda and Contra Costa Counties • Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect

15

Wolf, 76 Cal. App. 4th at 1040.

16

Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., 131 Cal. App. 4th 802, 834 (2005).

Andrew R. Verriere is a partner at Morrill Law Firm in Walnut Creek. Morrill Law Firm specializes in probate litigation (will and trust disputes and conservatorship disputes), financial elder abuse litigation, and appellate work. For more information, visit www.morrillattorneys.com or email Andrew at andy@morrillattorneys.com.


Estate Planners and Business Attorneys: Keeping One Another in Your Peripheral Vision by Bruce Ramsey and Deborah Moritz-Farr

E

state planners and business attorneys need not go bump in the night. Providing services to clients in a coordinated fashion with other legal counsel is appropriate in the estate planning arena. If you are not an estate planning attorney, having a line of communication with attorneys in the field is essential for meeting client needs. More often than not, estate planning issues will intersect with the issues bringing your client to your firm. Estate planning attorneys also find numerous opportunities to involve business attorneys when exploring a client’s wishes for their asset management and ultimate distribution. A client’s consultations with their business attorney often touch on estate planning issues such as management of one’s current and anticipated wealth, assets and the client’s ultimate goals of preserving, increasing and passing on their wealth, especially in the case of an ongoing business. The conversation also should explore the client’s thoughts on passing on intangibles of what they have built, such as their work ethic, business interests, and strategy for success. Estate planners are a critical piece of a client’s overall wealth strategy. They discuss the future of the wealth created, the impact on their beneficiaries when they inherit that wealth, if a client has concerns about a beneficiary’s ability to manage finances and possible involvement of future significant others, and the subject of succession planning and asset management. All of this often evolves into a detailed exploration using different business entities and financial vehicles, such as insurance, to accomplish key goals. One of the objectives in estate planning is the analysis

of whether an estate tax will be levied on the client’s estate when they, or their spouse, dies. Now that the estate tax threshold is $5.34 million per person (in 2014), reducing tax liability is no longer always the driving force to do more sophisticated planning that may involve the formation of entities. Estate planners continue to explore whether a new or existing business advances a client’s goals. They determine if operating agreements are in line with the client’s wishes for the management of their estate when they become incapacitated or die, and evaluate whether the entity provides a viable vehicle for a gifting plan involving interests in existing businesses. Even if an individual does not anticipate having a taxable estate on death, estate planners may explore creating business entities for a myriad of reasons such as: 1. Succession planning for a family business. 2. Limiting liability to third persons. 3. Integrating and educating family members in current management of the ”family business.” 4. Beginning a gifting plan to family members. 5. Setting up a formal process whereby future family members and their partners will have limited or no involvement in a client’s business but are still provided with an income source upon the client’s death. 6. Managing assets that are co-owned with friends, partners and/or family members. One example of the use of a business entity in estate planning is creating a mechanism so the client may begin making gifts of interests in the business entity.

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Peripheral Vision, cont. from page 15 It could be in shares of a corporation, LLC or small limited partnership interests, that are under the annual exclusion (currently $14,000) to family members, while the client maintains the majority interest and management control of the business. An LLC or corporation may be the mechanism the client elects to establish this type of plan. This allows a client to maintain control of their business and grow it in the direction of their vision during their lifetime, while giving income to relatives and possibly exposing select relatives or beneficiaries to the business’ operation and educate them in continuing the business. From an estate planning perspective, this allows a client to reduce their estate value by creating an asset in which they retain a fractional interest. At their death, fractional interests in assets may allow their estate value to be further reduced. However, what would be a straightforward path of control by a successor trustee or executor when the decedent’s estate owns 100 percent, becomes more complex when a manager of an LLC, the general partner in a partnership or a majority shareholder in a corporation dies. 16

JULY 2014

The subsequent control issues of the business entity dictated by the terms of the operating agreement, partnership agreement or buy and sell and first right of refusal clauses, are governed by agreements other than the client’s trust and/or will.

Often these costs are minor compared to the cost of the business being managed improperly, or not in line with the client’s intent after they die, and not providing for the beneficiaries as the client had intended.

If the management succession issues are not discussed and addressed thoroughly in the process of the formation of the entity, and in tandem with the client’s estate planning objectives and existing plans, then the goals of the founder (e.g., preserving wealth and the business) can be thwarted.

For instance, the Operating Agreement for an LLC should have provisions regarding who will succeed the client as manager, the limited situations where the manager can be removed and how a new one will be selected, and limited situations where the members (who may or may not all be relatives of the client) are involved in decisions.

The businesses of the client may not end up being managed by the person(s) the client had intended to be their successor. Also, the business interests may inadvertently be managed in a manner that does not provide the ultimate goal of their estate plan, for example, providing a stream of income for a surviving spouse while preserving the ultimate distribution of the business entity to the client’s children. Some additional considerations regarding business entities include the costs associated with the formation and reoccurring costs of maintaining the businesses (e.g., tax preparation expenses, state minimal tax payments, etc.) that perhaps are non-existent when the business is run as a sole proprietorship.

These decisions and the discussions leading up to them are often hard. But doing so in advance is the best way for a client to feel more secure that their goals are reached. Additionally, it is best to implement these decisions when the client is fully able make the decisions. These discussions, scenario-modeling, decisions and their implementation aren’t made strictly by the client and the estate planner— other family members need to be involved, as well as professionals including business attorneys, financial planners and accountants, where appropriate, to ensure that all viewpoints and outcomes are thoroughly explored.


By integrating varying business components into the solution, the estate planner’s job as “trusted advisor” is fully achieved. s Bruce Ramsey is a business transactional attorney, who also has extensive business knowledge and experience. He founded Ramsey Law Group, a small law firm which is focused on helping businesses in the Greater Bay Area avoid threats, fulfill obligations and capture opportunities—all in a responsive, reliable and reasonable manner. Deborah Moritz-Farr is a partner at the Martinez law firm of Turner, Huguet, Adams & Farr. Her law practice is centered on Estate Planning, Trust Administration, Trust Termination and Probate. She graduated from the University of California at Berkeley in 1997, and in 1990, received her J.D. from the University of the Pacific, McGeorge School of Law in Sacramento.

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

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Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100   •   fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 25 years

Tax Controversy & ColleCtion Christina P. Ortega, LL.M. IRS, FTB, EDD, SBE Audits, Appeals, U.S. Tax Court Businesses and Individuals

Walnut Creek youngman & Ericsson

cortega@youngman.com (925) 930-6000

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A GLANCE AT CCCBA’S MONTHLY FREE LEGAL WORKSHOP S WORKSHOPS March 2014

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Locations where clients attended workshops

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Free Legal Workshops Offered

18 38 75 18

JULY 2014

Volunteers

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Types of Workshops

Bankruptcy (English and Spanish) Civil Litigation Pro Per

Volunteer Hours Donated Attendees

Family Law Immigration Wills & Trusts Interested in volunteering? Contact Theresa Hurley at (925) 370-2548.


GET INVOLVED! Our free legal workshops are drop-in legal clinics where attorneys like you help members of the public handle their own legal problems. Learn more about how to get involved at

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Tax & Estate Attorneys Individual & Business Tax Issues Tax Preparation • Tax Planning • Tax Controversy Sophisticated Estate Planning • Estate Administration Trust & Estate Litigation • Probate

YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 | Walnut Creek, CA 94596 | (925) 930-6000 youngman.com

Walter C. Youngman, Jr., Attorney-CPA Christina P. Ortega, LL.M in Taxation Dani Altes, Paralegal

Chastity A. Schults, Partner Mayra Aviles, Paralegal

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Capacity & Undue Influence Some of the more factually intensive challenges to estate and trust instruments are claims that the decedent lacked the capacity to execute the instrument, was unduly influenced to do so, or both. The Courts of Appeal in Andersen v. Hunt (2011) 196 Cal.App.4th 722 and Lintz v. Lintz (2014) 222 Cal.App.4th 1346 offered helpful discussions about the standards that apply, depending upon the particular instrument in question, to capacity determinations. In turn, the Legislature, through enactment of Probate Code section 86 (effective January 1, 2014), made clear that undue influence has the same meaning in the probate context as that set forth in Welfare and Institutions Code section 15610.70. In the article that follows, Janet Li, the research attorney for the Probate Division of the Contra Costa Superior Court, and Timothy Mahi’ai White, a judicial extern with the Probate Division, discuss some evidentiary issues that arise concerning capacity claims.

by Janet Li and Timothy Mahi’ai White

T

he two concepts of lack of capacity and undue influence are distinct. They may, however, become interrelated in that a decedent who lacks capacity may also be subject to undue influence.1 We will discuss some of the sub issues as they relate to matters of proof.

The Use of Lay Witness Testimony to Determine Capacity When a claim is made that a decedent lacked capacity to execute a particular instrument, resort may be made to expert witness testimony. Often in such instances, the experts will disagree on the issue of the decedent’s capacity. The mere diagnosis of a mental or physical disorder is not sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.2 Thus, testimony may also be sought from lay witnesses on the issue of whether the decedent lacked the requisite capacity to execute the instrument in question.

Trust & EstatEs DisputEs

Chastity Schults, Partner

Trust & Estates Disputes, Estate Litigation, Probate Estate Planning, Customized Trusts, Wills, Health Care Directives, Powers of Attorney, Post-Death Counseling & Estate Administration Walnut Creek

cschults@youngman.com (925) 930-6000 | Cell (925) 482-4080 Youngman & Ericsson

Expert and lay witness testimony differ by the types of information that may form the basis for a particular opinion. Where a witness testifies as an expert, his or her opinion testimony is limited to subject matter that is sufficiently beyond the common experience of lay persons: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Capacity, cont. from page 23

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”3 The challenge to capacity to draft an instrument, however, may depend on facts that may not have been observed or known by an expert. Thus, both expert and lay witnesses may express opinions on the issue of a decedent’s competency.4 In the latter instance, “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony.”5

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The limited exception in Evidence Code section 800 allows a percipient witness to provide opinions helpful to a clear understanding of his or her testimony. Witnesses may relate observations regarding the manner or conduct of a person at a given time, without first being qualified as experts or intimate acquaintances.6 Such witnesses may testify about the alertness and conduct of a person at a given time and during a particular transaction.7

ted to testify about the characteristics and traits of the decedent as being a woman “of very alert mind and positive in her manner.”9 The Court of Appeal reflected that these characteristics and traits could be observed by the employee where he saw the decedent “at least once or twice a month ... for five years before her death, and that she was accustomed to talk[ing] with him about her business affairs and property interests.”10 While both expert and lay witnesses may give their opinions on competency, it is not the opinions which are of importance, but the reasons given in support of such opinions.11 In Estate of Wright (1936) 7 Cal.2d 348, 351, the decedent met Grace Thomas, “a notary public and realtor with whom he had transacted business and had known for many years ... and asked her what her charge would be for drafting his will.”12

A lay witness who is accustomed to discussing with an individual the latter’s business affairs may testify to characteristics of the individual which may be readily observed by an acquaintance who frequently comes in contact with the individual, without first having been qualified as an intimate acquaintance under former Code of Civil Procedure section 1870, subdivision 10.8 In that case, a manager of a bank where the decedent kept her accounts for many years was permit-

He came to her office about three weeks later, “bringing memoranda sheets upon which he had written the names of persons whom he wished to enjoy his property and the specific shares ... She prepared the will accordingly.”13 After the decedent’s death, his daughter contested his will. Mrs. Thomas and the two subscribing witnesses then testified that they were of the opinion that the decedent was of unsound mind when he executed his will.


When pressed for the basis for her opinion, Mrs. Thomas stated that it was the “funniest will she had ever seen” in that it gave $1 each “to a number of different persons,” that she had thought the decedent strange for some time, and that “he did not have in mind the legal description of the property but that she had it listed for sale and rent.”14 The contestant next called James Thomas, a witness to the will. The record did not indicate what relation he bore, if any, to Mrs. Thomas, or who asked him to be a witness.15 Mr. Thomas “stated that he “believed” the [decedent] was not of sound mind; that in his opinion, [the decedent] had not been of sound mind for some years prior to the execution of the will.”

further found that “the burden was upon the contestant throughout the case” and that, “taking all the evidence adduced by contestant as true, it falls far below the requirements of the law as constituting satisfactory rebuttal of the inference of testamentary capacity.”21 s 1. Estate of Larendon (1963) 216 Cal.App.2d 14, 16. 2. Prob. Code, § 811, subd.(d). This article focuses on the use of lay witnesses and does not attempt to distinguish the standards for legal capacity for different instruments. 3. Evid. Code, § 801. 4. Estate of Buthmann (1942) 55 Cal.App.2d 585, 591. 5. Evid. Code, § 800.

The Supreme Court observed that Mr. Thomas seemed unable to give a single reason supporting his opinion.16 “G.W. Madden, the other subscribing witness, when pressed for the reason of his opinion that the [decedent] “was not of sound mind” at the time he signed the will, was also unable to say more than that he considered [the decedent] of unsound mind for some time prior to the making of the will.”17

6. Pfingst v. Goetting (1950) 96 Cal.App.2d 293, 306. Evidence Code section 870 provides: “A witness may state his opinion as to the sanity of a person when:

The Supreme Court observed that, as to testimony of those “who participated in the creation of the will and who by their solemn acts gave the stamp of approval and verity to its due execution, and afterwards attempted to repudiate all they had done,” that testimony would be “subject to the scrutiny and suspicion which courts rightfully exercise” in considering such testimony.18

(c) The witness is qualified under Section 800 or 801 to testify in the form of an opinion.”

(a) The witness is an intimate acquaintance of the person whose sanity is in question; (b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed by the person whose sanity is in question and the opinion relates to the sanity of such person at the time the writing was signed; or

7. Id. at 304. 8. Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 337. 9. Jorgensen v. Dahlstrom, supra, 53 Cal.App.2d at 337. 10. Ibid.

While other witnesses also testified, the Court found that, to a great extent, the opinions of those who testified that the decedent was not of sound mind rested upon testimony of the most trivial character and did not establish testamentary incapacity at the time he executed his will.19

11. Estate of Buthmann, supra, 55 Cal.App.2d at 591.

The Court stated that “testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities, or departures from the normal unless they directly bear upon and have influenced the testamentary act.”20 The Court

16. Ibid.

12. Id. at 351. 13. Ibid. 14. Id. at 351-352. 15. Id. at 352. 17. Ibid. 18. Id. at 350.

19. Id. at 357. That testimony was rather fascinating. Examples include: Cloyd Angell, decedent’s grandson, thought decedent was of unsound mind because he had seen him fishing on the wharf at Venice REAL ESTATE  BUSINESS PLANNING  ESTATE PLANNING and he did not tell his friends and acquaintances on the pier that Cloyd was his grandson; neither did Cloyd tell his friends that decedent was his grandfather. (Id. at 353.) Cloyd further testified that he had often seen decedent drunk on the pier. (Ibid.) He further testified that, some eight or 10 years before deceLENCZOWSKI LAW OFFICES HUBERT LENCZOWSKI, J.D., M.A.* dent’s death, decedent seemed fond of hubert@lenczowskilaw.com him and he used to ride with decedent ATTORNEYS AT LAW on the garbage wagon, but decedent’s 1615 Bonanza Street, Suite 212 C. JOSEPH DOHERTY, J.D. attitude changed in later years, for no jdoherty@lenczowskilaw.com Walnut Creek, CA 94596 reason of which he was aware, and he * Adjunct Professor Taxation Golden Gate University T (925) 280 7788 did not have much to do with him. (Id. Law School, LL M Taxation Program www.lenczowskilaw.com at 354.) Marjorie Jean Angell, a grand-

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Capacity, cont. from page 25 daughter, believed that decedent was of unsound mind because he told a number of persons that he had sent Christmas presents and a turkey to them when he had not done so. (Id. at 353.) She also testified that, at times, he would pass her on the street without speaking, and at other times he would speak and seem friendly. (Ibid.) She further testified that her mother often invited him to their home for dinner. He would say he would come but he did not appear. (Ibid.) Harriet E. McClelland, who had known decedent for a number of years, related that decedent, while living at her house, would hold his breath and appear to be dead, that when she returned from her quest for help she would find him up and walking about, and that he said he did this to scare his neighbors and make them think he was dead. (Id. at 354.) Minnie Connor, decedent’s half-sister who was bequeathed one dollar, testified that he was in a bad accident 30 years before and he had been strange since. (Ibid.) She further testified that in 1919 he had an operation and nine years before his death, he injured his hand and was sick at her home for some time, and that he was delirious a part of the time and ran out of the house only half clothed. (Ibid.) She further testified that once while at her home on her invitation to dine, he left before the meal and did not return. (Ibid.) She also testified that decedent’s mother had been insane more than a year before her death, but the Supreme Court observed that decedent’s mother was never adjudged insane, Minnie did not state his mother’s age, nor was there the slightest evidence tending to show congenital insanity in the family. (Id. at 355.) 20. Id. at 356. 21. Id. at 356. No evidence existed that decedent suffered from settled insanity, hallucinations, or delusions. (Id. at 356.) No medical testimony as to the extent or effect of any injury decedent had received was introduced. (Ibid.) No proof was offered tending to rebut decedent’s ability to transact or conduct his business or to care for himself except in a few cases of illness brought about by natural causes or by accident. (Id. at 356-357.) No evidence was offered that decedent did not appreciate his relations and obligations to others, or that he was not mindful of the property which he possessed. (Id. at 357.)

Janet Li is the research attorney for the Probate Division of the Contra Costa Superior Court. University of California, Hastings College of the Law, J.D.; University of California at Berkeley, B.A. Timothy Mahi’ai White is a judicial extern with the Probate Division. Golden Gate University School of Law, J.D. expected; University of Hawaii, B.A.

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Target Your Search Find the right candidate with the CCCBA Job Board jobs.cccba.org


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Trusts Can Be a Key Element in Financial Planning for Today and Tomorrow by Todd Friedman

What is a Trust?

A

trust is created by a legal document (Trust Agreement) that enables the trust to own property for the benefit of a third party. A trust is a versatile instrument. You create it during your lifetime to hold property and assets. After your death, the trust can distribute the assets to beneficiaries, or hold and invest the assets for a set number of years or lifetime(s). It can distribute income generated by the investments to your beneficiaries, as dictated by the trust.

How Does a Trust Differ from a Will? Unlike a will, a trust does not have to go through probate, often

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JULY 2014

a time-consuming legal process, which may have tax implications and is part of the public record. When you have a trust, your assets go to your designated beneficiaries in a tax-advantaged and confidential manner. Furthermore, with a trust, you can choose to have your assets distributed to your beneficiaries over time. However, with a will, assets are usually disbursed as a one-time event. A trust can also provide asset management, estate planning consultation and tax services, such as investment oversight, financial reporting, asset disbursements and bill payment, which can provide peace of mind to families as the trust Grantor, or person establishing the trust, ages.

What Kinds of Trusts are There? There are different types of trusts to meet a variety of objectives. Trusts are very flexible, and designed to address the Grantor’s personal wishes. The Grantor can use trusts as a key element in a comprehensive estate and wealth transfer plan, or direct how their legacy will be managed and distributed after death. Trusts can be created to accomplish specific goals. For example, if you have a child or grandchild with special needs, you can set up a Special Needs Trust to ensure that they are properly cared for during their lifetime. For your philanthropic goals, you can establish a Charitable Remainder Trust and leave some part


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of your estate to a designated charity or institution. Combinations of trusts can help address the needs of multiple families and generations.

How Do I Know if a Trust is Right for Me? Trusts are for people who want to maintain control over how their estate is managed, preserved and distributed, those who want access to professional investment management advice and services, or seek specific expertise. For example, anyone with a special needs family member who wants to provide funds for care while continuing to qualify for government benefit programs or people interested in making and administering gifts to a charity or school can benefit from a trust.

finances and pay bills if you travel frequently or become incapacitated. This is a much valued service and ensures that your bills are being paid on time and that your assets are organized. Establishing and funding a trust while you are living can help streamline the probate process and reduce many costs associated with your estate settlement. s

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If you want to consolidate multiple investment accounts, a more tax-advantaged way to manage and transfer your assets, or want more control over the distribution of assets over time, establishing a trust could be a smart decision. A trust can offer more than tax benefits. It gives you complete control over the accumulation and distribution of your assets. If the trust owns life insurance, access to cash values can supplement retirement needs.

Todd Friedman is a financial representative with MassMutual San Francisco, a MassMutual Agency; courtesy of Massachusetts Mutual Life Insurance Company (MassMutual). He can be reached by telephone at (925) 979-2342 or email at tfriedman@financialguide.com.

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inns of court

MAY THE FORCE BE WITH YOU O

n May 8, 2014, Judge Craddick’s pupilage group (starring Jeremy Seymour, Matt Guichard, David Marchiano, Maria Crabtree, Amy Foscalina and Heidi CoadHermelin) focused on criminal law with “May the Force Be with You.” References to “Star Wars” abounded. Judge Craddick could not attend, as she was out on leave, but the rest of her group soldiered on admirably in her absence. Amy Foscalina started off the program by introducing the general topic and all the people involved. Jeremy Seymour led off the presentation with a history of policing in America and the appropriate usage of force by police. He introduced terms from the first year of law school, like “reasonable suspicion” and “probable cause.” Remember those? He also discussed the difference between police arrests and citizen arrests. We “normies” need an actual occurrence of a crime to perform a citizen arrest, not just probable cause.

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Maria Crabtree next spoke about police training as it related to force. She discussed the continuum of force as it starts with “police presence” and ends with “deadly.” Then she explained the many different, uniquely shaped continuums of force, including ladders, circles and stair steps. Also mentioned were Möbius strips, the Rainbow Road from “Mario Kart” and dodecahedrons. Each continuum she listed was more continuum-y than the last until we finally reached peak continuum. The big question she posed was when Darth Vader used his force choke, where on the spectrum was he? In theory, serious pain was being inflicted upon the victim, but Darth Vader wasn’t even touching him. Is it merely police presence or is it deadly? Next up was the highlight of my five-plus years at the Inns of Court. The pupilage group had invited two Danville police officers to provide a demonstration of their police canine.

Now, as a cat person and the son of a personal injury lawyer, I live in fear of dogs. However, this was not a factory-issued dog. This magnificent beast had a coat of fur so gorgeous, he seemed more akin to a lion (aka a cat!). The Danville police officers had brought the King of the Suburban Jungle to teach us about the use of dog force. First, they discussed the training of these dogs. They are from Holland and undergo thousands of dollars worth of training, all while wearing dainty wooden shoes. They are trained not only to subdue criminals, but also to search for drugs. For them, it is not a job, but a game. When they bite a criminal, their tail wags furiously like it would for a game of fetch. When they are searching a car for drugs, they act like they are just finding a hidden treat. The fact that these dogs view such a serious and violent job as a game is one reason I live in fear of them. Of course, it was all fun and games until somebody got bit. Actually,


ing, including the mechanics of the Taser itself. He showed a video of a man getting tased, which seemed fairly bad. Finally, Matt Guichard discussed the Coroner’s Inquest, which is an investigation done any time a person dies with the involvement of the police. Even if the police did not directly cause the death, an Inquest is still conducted.

One might say this presentation took the Inns of Court to the Bark Side of the Force. After the program, scholarship awards were awarded to student Inns’ members, Nathan Pastor and Sunita Popal. The Inns of Court summer mixer event will be held on July 17, 2014, at Judge Cram’s house. s

by Matthew Talbot no, wait, it was even more fun and games when somebody got bit! One of the officers put on a protective suit and the dog’s handler sent him over for a nosh. The dog went in three separate times for bites, his tail wagging excitedly each time. The handler showed how different commands or movements by the criminal can cause the dog to attack. Interestingly enough, after the third bite, the dog inadvertently knocked into the projection screen as he was returning to his handler and the screen started to fall. The officer in the protective suit took a step forward to grab it, and in an instant, the dog spun around and leapt back to take another bite. In the dog’s mind, the criminal had not followed the agreed plan of “giving up” and so dinner was again served. Plus, the projection screen was protected from a criminal attack! Hooray! Heidi Coad-Hermelin, David Marchiano and Matt Guichard then finished up the presentation. Heidi broke down the usage of a police dog on the spectrum of force and discussed when using a dog may be excessive force.

If you are interested in applying for RGMAIOC membership, please contact Patricia Kelly at patriciakelly@pacbell.net.

AND

MEDIATION CENTER

“A unique and effective style a great mediator” Candice Stoddard     Ron Mullin

Willows Office Park   p   1355 Willow Way, Suite 110 Concord, California 94520 Telephone (925) 798-3413   p   Facsimile (925) 798-3118 Email ronald@mullinlaw.com

David Marchiano discussed tas-

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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restaurant review

Happy Hour at Élevé

I

am new to the Contra Costa Lawyer Editorial Board and volunteered to do a review of Élevé, a Vietnamese restaurant located at 1677 N. Main Street in Walnut Creek, at the intersection of Civic and North Main.

It was suggested that I go for Happy Hour. I soon found out that while Élevé may be known for their hand-crafted cocktails, they are NOT known for their Happy Hour. It may be one of the best kept secrets in town, since when I went there (admittedly on a Wednesday, but it had been a trying week), we were the only ones in the entire restaurant. I am told that there are more patrons on Thursday and Friday evenings. They have several interesting cocktails on the Happy Hour menu—all for $6. (Happy Hour is Tuesday through Friday from 5-6:30 p.m.) They also have several appetizers and small plates available at the bar. The tempura onion rings were really good, light and crispy, and not at all greasy. I had the margarita, made with just tequila, lime and agave nectar on the rocks. It was the best margarita I have had in a long time. The real reason to go to Élevé is for the bartender (and co-owner), Cuong Du. He is very knowledgeable about his cocktails and is in the process of barrel-aging a new version of a Negroni cocktail, so I told him I would be back in 30 days for a sample. If you are planning a party, Élevé has a large room upstairs that can accommodate up to 65 people for a seated meal and 110 guests for a cocktail party with food stations or passed items. s Suzanne Boucher is a certified family law specialist. Her practice, located in Walnut Creek, focuses on complex property, support and custody issues in dissolution proceedings.

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Results From the Food From the Bar Drive

I

What You Missed in June’s Online Issue Law Practice Management edition Features:

n May, the Contra Costa County Bar Association held its 23rd annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano.

It started with the 19th annual Comedy Night kick-off, where 175 attorneys and guests enjoyed BBQ and belly laughs at Back Forty Texas BBQ in Pleasant Hill. More than 20 generous sponsors donated to support the event. That was followed by a two-week fundraising blitz by 35 large and small law offices in the county, whose 700+ employees helped raise more than $58,600 and 598 pound of food. Over the years, the Bar Association has collected more than $1,100,000 and 55 tons of food for the Food Bank. The attorneys say they are already planning next year’s fundraiser and comedy show, as they work toward their second million in donations! A special thank you to our sponsors; we could not have done this without your support! Wells Fargo | Archer Norris | Brown Church & Gee, LLP | Newmeyer & Dillion, LLP | The Recorder | Steele George Schofield & Ramos, LLP | Timken Johnson, LLP | Back Forty Texas BBQ | Contra Costa County Bar Association | Gil Berkeley | Law Offices of Suzanne Boucher | Buchman Provine Brothers Smith, LLP | Certified Reporting Services | Esquire | Frankel Goldware Ferber, LLP | Gagen McCoy McMahon Koss Markowitz & Raines | Miller Star Regalia | Quivx | Ringler Associates | Scott Valley Bank | Vasquez Benisek & Lindgren, LLP

• Law Practice Management and Organizational Theory - Morris Ratner • Succession Planning: How to Determine and Realize the Value of Your Law Practice Michael J. Eggers • True Social Networking: Face to Face Meetings Martha Sullivan • Reputation Management for Your Law Firm Ken Matejka • The Profit in Pro Bono - Geoffrey Steele • Upcoming MCLE Changes and How They Affect You - Theresa Hurley

Spotlight: • Court Budget Season 2014 - Hon. Barry Goode • What is Your Google Analytics Data Telling You About Your Website Visitors? - Ken Matejka • Civil Jury Verdicts: June 2014 - Matt Guichard

Columns: • Inside: The Business of Law - Elva Harding, Guest Editor • Bar Soap: June 2014 - Matt Guichard

News & Updates: • A Whooping Success: Comedy Night [photos] • Hon. John Cope’s Induction [photos] • Law Practice Management Series 2014

More: • The Law and the County Archives - Contra Costa County Historical Society/Hon. A.F. Bray • Coffee Talk: What online resources do you use to support your practice?

To read these and other articles, go online to cclawyer.cccba.org. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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COFFEETALK!

Estate planning affects all areas of practice. When have you (in your non-estate planning practice) advised your clients to consult an estate planner, and why? I sometimes meet with clients who have received substantial inheritances from their parents or who have experienced great success with their business. These clients often have no estate plan of their own. When I see this, I advise these clients to consult an estate planning attorney. Otherwise, they could end up with avoidable estate or gift tax issues.

Bob Jacobs The Law Office of Robert B. Jacobs

With over three decades into my Family Wealth Preservation estate planning practice, my focus is on preparing heirs through mediation of intra-family estate and trust disputes that invariably arise throughout the stages of life. When I serve as mediator with a family, I do not serve as attorney for any family member, including the parents, nor do I provide legal advice. Instead, I advise them to consult with another attorney for estate planning or any other legal matters.

Nancy L. Powers I advise consulting an estate planner when a client is planning on storing frozen embryos. Since embryos are in a special class, inheritance or use posthumously typically has special issues.

Diane Michelsen Family Formation Law Offices

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JULY 2014

Powers Law


CALENDAR UPCOMING EVENTS | OVERVIEW

July 8 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil & Criminal Case Management Essentials, Part 2: Discovery & Pre-Trial Motions more details on page 36 July 9 | Family Law Section

10 Keys to Winning (Almost) All Your Family Law Hearings more details on page 36 July 15 | CCCBA

Financial Client Relationships: Part 4 of the 2014 Law Practice Management Series more details on page 36 August 5 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil & Criminal Case Management Essentials, Part 3: Experts, Investigations & the Next Step more details on page 36

September 9 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil & Criminal Case Management Essentials, Part 4: Trial Part 1: What to Prepare for the Trial and What Happens During the Trial more details on page 36 September 16 | CCCBA

Wellness for Attorneys: Avoiding Substance Abuse in the Law: Part 5 of the 2014 Law Practice Management Series more details on page 36 September 19 | CCCBA

Lisa Reep’s Retirement Reception more details on page 21 September 25 | Estate Planning & Probate Section

Forensic Document Examination more details on page 36 November 21 | CCCBA

20th Annual MCLE Spectacular more details on page 22

For up-to-date information on programs, please visit www.cccba.org/attorney/calendar and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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July 8 | Barristers, Criminal Law and Litigation Sections

Trials 101: Civil & Criminal Case Management Essentials, Part 2: Discovery & Pre-Trial Motions Each session will cover a different part of the litigation process from both the criminal and civil aspects. In Part 2, we’ll examine discovery, motions and other issues that may arise. Speakers: Natasha S. Chee, Esq., Law Offices of Natasha S. Chee Dorian Peters, Esq., Law Office of Dorian Peters Jeffrey T. Thayer, Esq., DeHay and Elliston, LLP Time: 6 pm – 7:30 pm Location: JFK University 100 Ellinwood Way, Room N358, Pleasant Hill

July 9 | Family Law Section

July 15 | CCCBA

10 Keys to Winning (Almost) All Your Family Law Hearings

Financial Client Relationships: Part 4 of the 2014 Law Practice Management Series

Meal choices: • Roast Sirloin • Vegetable Risotto • Grilled Salmon Speaker: Comm. Glenn Oleon (Ret.) Time: 12 pm – 1:15 pm Location: Contra Costa Country Club, 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour family law specialization MCLE credit Cost: (Early Bird Price) $50 for section members and law student members, $75 for CCCBA members, $100 for non-members

Best practices on billing methods, engagement agreements, and file storage, transfer and destruction. Speakers: Harry DeCourcy, Littler Mendelson Renee Livingston, Livingston Law Firm Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill MCLE: 1.5 hours general MCLE credit Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members

Registration: Go to the Family Law website at www.familylawsectioncontracosta.org

Registration: Online at www.cccba.org/attorney/calendar

More Info: Contact Therese Bruce at (925) 930-6789

More Info: Contact Theresa Hurley at (925) 370-2548

August 5 | Barristers, Criminal Law and Litigation Sections

September 9 | Barristers, Criminal Law and Litigation Sections

September 16 | CCCBA

Trials 101: Civil & Criminal Case Management Essentials, Part 3: Experts, Investigations & the Next Step

Trials 101: Civil & Criminal Case Management Essentials, Part 4: Trial Part 1: What to Prepare for the Trial and What Happens During the Trial

MCLE: 1 hour general MCLE credit Cost: $20 for sponsoring section members and law student members, $25 for CCCBA Members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar

Each session will cover a different part of the litigation process from both the criminal and civil aspects. Part 3 will discuss expert discovery and dispositive motions, pre-trial investigation, marshaling the evidence and subpoenas. Speakers: Natasha S. Chee, Esq., Law Offices of Natasha S. Chee Dorian Peters, Esq., Law Office of Dorian Peters Jeffrey T. Thayer, Esq., DeHay and Elliston, LLP

Speakers: Natasha S. Chee, Esq., Law Offices of Natasha S. Chee Dorian Peters, Esq., Law Office of Dorian Peters Jeffrey T. Thayer, Esq., DeHay and Elliston, LLP

Time: 6 pm – 7:30 pm

Time: 6 pm – 7:30 pm

Location: JFK University 100 Ellinwood Way, Room N358, Pleasant Hill

Location: JFK University 100 Ellinwood Way, Room N358, Pleasant Hill

MCLE: 1 hour general MCLE credit

MCLE: 0.5 hours general and 0.5 hours elimination of bias MCLE credit

Cost: $20 for sponsoring section members and law student members, $25 for CCCBA Members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar 36

Part 4 will discuss motions in limine, voir dire, page line designations, exhibits and openings, witness list, jury instructions, direct/crossexamination witnesses and Batson/Wheeler.

JULY 2014

Cost: $20 for sponsoring section members and law student members, $25 for CCCBA Members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar

Wellness for Attorneys: Avoiding Substance Abuse in the Law: Part 5 of the Law Practice Management Series This program examines the building blocks of wellness from what drives lawyers to substance abuse, the physiology of stress, science behind wellness and tools for successfully managing our suffering so that we can be our best selves, maintain wellness and avoid substance abuse. Speaker: Jeena Cho, JC Law Group, PC Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S312, Pleasant Hill MCLE: 0.5 hours general and 1 hour detection/ prevention of substance abuse MCLE credit (pending) Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548


September 25 | Estate Planning & Probate Section

Forensic Document Examination Speaker: David S. Moore, Forensic Document Examiner Time: 12 pm – 1:30 pm Location: Scott’s Seafood Restaurant 1333 N. California Blvd., Walnut Creek MCLE: 1 hour general MCLE credit Cost: $30 for section members, $40 for CCCBA members, $50 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Theresa Hurley at (925) 370-2548

CALE

NDA

R

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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1-2 offices available in Class A building across the street from Walnut Creek BART. Very professional-looking space. Good view. Copier, scanner, conference room, library, kitchen, covered parking. Receptionist services included in rent. Smaller office is 12’ x 12’, $950/month; Larger is 12’ x 18’, $1,950/month. May negotiate on rent depending on term. Call Terre at (925) 260-3994.

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Elder Law is

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

Michael J. Young

Estate Planning, Disability, Medi-Cal, Long-term Care & VA Planning Protect your loved ones, home and independence.

n

Alzheimer’s Planning

925.256.0298 www.YoungElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

Acuña, Regli & Klein, LLP and

The Law Offices of Ronald C. Solow are pleased to announce the retirement of

Ronald C. Solow Mr. Solow has selected Acuña, Regli & Klein, LLP, to serve the continuing needs of his clients.

1981 N. Broadway, Suite 245 Walnut Creek, CA 94596 www.AcunaRegliKlein.com

T (925) 906-1880 F (925) 937-5634 Toll Free (866) 906-1880 ContactUs@AcunaRegliKlein.com

estate planning· probate & trust administration inheritance litigation· business & bankruptcy conservatorship· special needs trusts

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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DIABLO VALLEY REPORTING SERVICES Certified Shorthand Reporters

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JULY 2014


Contra Costa Lawyer July 2014