Recommendations from a Litigator to California Attorney Estate Planners

Recommendations from a Litigator to California Attorney Estate Planners


At Hackard Law, we do California estate, trust
and elder financial abuse litigation. Our practice experience includes circumstances
where it seems that estate planning lawyers haven’t really done their job. The few examples below are collected from
real world experience and changed to protect the privacy of the parties involved. Angus Flinch, a lawyer with 17 years’ experience,
has a limited estate planning practice in the East Bay. Jose Carlito, the son of Juanita Carlito,
calls Angus in late 2017 to set up an estate planning appointment for his mother. Juanita, 78 years old, has a will in place
that distributes her assets equally to her two children at her death. Juanita, a Spanish speaker, has a third-grade
education and a very limited understanding of English. Juan drives Juanita to the first appointment
with Angus. Juanita barely says a word. Jose explains that Juanita wants to leave
everything to him – Jose – and she also wants to disinherit his sister, Inez. Angus prepares a trust according to the terms
that Jose describes. Juanita returns a week later. Angus does not speak Spanish. Suzy, assistant to Angus and able to speak
a little Spanish, explains some basic terms of the trust to Juanita. Juanita cannot read the trust. No one reads the trust to her. Juanita signs the trust. Juanita dies and Inez, her disinherited daughter,
hires Hackard Law to challenge the trust and her brother Jose’s actions. Charlie Gambino, a Southern California lawyer,
meets with Sadie Sark, an 87-year-old widow in poor health, at his office, regarding her
estate plan. Sadie is accompanied by her nephew, Mortimer,
at the first meeting. Sadie indicates that she wants to change her
trust, disinherit her three children, and name Mortimer as the trustee and sole beneficiary
of her trust. Sadie’s prior and long-held estate plan
provides for an equal division of her trust assets to her three children at her death. Sadie also wants to give Mortimer her power
of attorney and add him as a joint tenant on a condo that she owns in Palm Springs. Charlie Gambino’s directs all of his follow-up
questions from the first meeting, including emails and phone calls, to Mortimer, not his
client, Sadie. This follows Mortimer’s instructions. Mortimer emails Charlie a list of all of Sadie’s
assets and a list of joint accounts that Sadie holds with him. Charlie does not speak with Sadie during the
two months between the initial meeting and the execution of the new trust. Sadie comes to Charlie’s office to sign
the trust. Mortimer accompanies Sadie to Charlie’s
office. Sadie dies. Winston, one of Sadie’s three children,
hires Hackard Law to challenge Sadie’s trust and Mortimer’s actions related to the trust. Charlie, in a later deposition says that he
didn’t see any undue influence from Mortimer. He also says that he didn’t really ask Sadie
about why she wanted to disinherit her three children. Soccer Banzetti, a South Bay lawyer, focuses
his practice in dealing with a financial advisor, Sam Shakey, who sends him business. Sam, not a licensed attorney, solicits clients
by phone calls and door-to-door sales. Sam promises a complete estate plan for $3200. Sam usually receives the entire $3200 and
then pays Soccer $500 for Soccer’s work. Soccer and Sam have been doing this for the
last five years. They average about fifty estate plans per
year. Sam contacts Bifford Jones and sells Bifford
an estate plan. Soccer prepares the plan, sends it to Bifford,
and Sam goes by Bifford’s house where he notarizes Bifford’s signature on the plan. Bifford’s estate plan names some strange
people as beneficiaries of his trust. A neighbor is named as a trustee. Bifford dies and his only son, Pierre, disinherited
in the trust engages Hackard Law to challenge the trust. Now, is anything wrong with the way that attorneys
Angus, Charlie and Soccer performed? Let’s start with the basic legal rule that
an attorney has the duty to communicate with the client, according to California Business
& Professions Code Section 6068. This is also a part of the duty to render
competent representation under the California Rules of Professional Conduct. It sure looks like these three lawyers had
little or no mutual communication with their clients. Lacking such communication, how could they
draft an appropriate estate plan? Professor Mary F. Radford’s “Recommendations
for Lawyers” is worthy of consideration by busy lawyers who regularly draft estate
plans. It highlights include:
Education on elder abuse issues. Legal Instruments that might be used in the
exploitation of elders. Dealing with Diminished Capacity Clients. Reporting Elder Abuse. And, asking seeking out trusted contacts in
various fields who are experienced in protecting seniors from abuse. Hackard Law represents foreign, out-of-state
and California clients in California trust, estate, probate and elder financial abuse
litigation. We take significant cases where we think that
we can make a substantial difference and there is a wrongdoer who can be made financially
accountable for their wrongdoing or breach of duty. We focus our geographic reach to the Superior
Courts, probate and civil, of Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra
Costa and Sacramento Counties. If you would like to tell us about your case,
call us at 916 313-3030. We’ll be happy to hear your story. Thank you.

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