Several years ago, in my second decade of practicing law, I learned a lot about estate disasters. My mother's aunt had substantial financial resources - resources saved and invested over the many decades of her life. She and her now-deceased husband had saved for old age - for security in their retirement years. She owned her own San Francisco home, had a secure pension and a large stock portfolio. Then, in her early 90s, she had a caregiver to assist her at a time of her decreased mobility, limited hearing, other sensory deficits and lost driving privileges.
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An unexpectedly large number of people open safe deposit boxes, leave them alone for several years, and forget the box ever existed. According to the Sacramento Bee, the California State Controller's Office had the contents of more than 138,000 safe deposit boxes under its control in 2017, including more than 75,000 US Savings Bonds worth more than $30 Million. Sometimes banks move, and sometimes box holders move, but the usual way in which boxes get forgotten is when someone dies.
I listen to hundreds of stories every year. There are dozens of cases for every element of vulnerability. The stories surrounding each element often provide a foundation for the failure of an estate plan that someone tried to make bulletproof.
When it comes to estate planning, a settlor, the maker of a trust, or testator, the maker of a will, seek certainty over uncertainty. They take the time to make an estate plan to diminish risks. Once this is accomplished is the estate plan impervious to challenge? In more colloquial terms - is their will and trust bulletproof. And, if not bulletproof, what will it take to make it bulletproof?
The Los Angeles area real estate market is continuing to grow at a dynamic pace. Last year the median price for homes in Southern California jumped 8.2% to over half a million dollars. The LA housing market, like other vibrant California markets, is proving a great way to build wealth by home appreciation. Baby Boomers and the "Silent Generation" comprise a very significant share of LA homeowners. This immense source of wealth is often targeted, taken or obtained by elder financial abusers. This is a problem that we all should know about.
Under California law, Los Angeles beneficiaries have fundamental rights that are integral to a fair, timely and equitable distribution of trust assets. While the terms of a trust should be inviolable, there are still unfortunate cases when trustees abuse their authority and commit breach of fiduciary duty. This can result in serious damage to the trust and put a family's economic future in jeopardy.
We learn by stories. Given our law firm's position and commitment to LA estate, trust and elder financial abuse litigation, we hear lots of stories - stories that many times develop new chapters in Los Angeles County Superior Court. While I can't reveal attorney client communications, I can take literary license to depict issues of estate theft and wrongdoing that we regularly litigate. In this spirit, let's go back to June 2016.
When "an elderly person with a joint bank account dies, do the funds belong to the decedent's estate or do they belong to the additional signer as a co-owner of the account?" A recent California Court of Appeal case held that "[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party . . . as against the estate of the decedent unless there is clear and convincing evidence of a different intent." This is a basic or black-letter rule, a clear statement of the law. It is also a trap for those inclined to seize upon a seemingly clear explanation of the law that leaves no room for interpretation or nuance.
Anxiety fueled by grief is a part of the inventory process of a decedent's property. A family member is tasked by practicality, family consensus, or an estate document to gather a decedent's assets. Some assets are obvious - a house, documented bank accounts and securities and onsite personal property. Other assets are more opaque - physically separated in a financial institution safe deposit box or a house or office safe.
Your parents owned a business and real estate. They successfully managed the business for decades and built up family assets. They put these assets into a trust where they remained as trustees during their lifetime. When they passed away, successor trustees took over. The successor trustees, through incompetence or even wrongdoing, are damaging your family's economic heritage. They are failing to keep trust property separate and identified, they lack complete and accurate financial records, they are self-dealing, and they are failing to comply with California's requirements for serving as trustees.