Estate Planning, Trust Administration and Trust Contests, with Mark Abell

0:02 As a real estate agent, I we talk a lot about probate, which is when the cows get out of the barn, what happens, how to manage things, but really as professionals, you're helping our customers avoid letting the cars out, the cows out of the barn, helping them build a better barn, making sure the barn doors are locked and using an analogy in our business, that would be make sure customers have evaluated the importance and options regarding estate planning. Really excited to have here today Mark Eubel, who is a estate planning attorney based in Canyon Lake, California. If you've never been there, expect to do some pontoon boating. There's a very easy lifestyle on Canyon Lake. Mark, thanks for joining us today.

0:35 Thanks, Bill. I appreciate you having me on some podcast today. So, let's talk about estate planning. I think that there are a lot of reasons why we can see after the fact people after the fact people should have an estate plan. Is it what percentage of phone calls do you get or inquiries coming in to you are people proactively saying, "Hey, I need to plan ahead." versus what percentage are, "Oh my gosh, we have a pending problem. Can you help us put the fire out?" Yeah, honestly at this point in my career, I'd say more people are calling me with the latter saying, "Oh my gosh, we have a huge problem. We just got served with some papers with the court. We don't know what to do." Right?

1:10 You know, dad told us this, but now we're realizing that basically nothing was ever done. So, I'm more so focusing on trying to put out a lot of fires,

1:20 Right? And I'm just going to do a general rule of thumb that it would cost about one-tenth as much to plan ahead as it is to respond after the fact. I say so. Yeah. And so also as a general rule, again, not giving legal advice. I give business advice, but that anybody who owns a house in California should at least review their options of an estate plan. Whether they get a trust or not, that's a different issue. But I would say everybody should at least look at that. Is that a fair assessment? Yeah, I'd think so because it's better to at least get it assessed, evaluated, have an opinion on it, and then you know, especially with just the real estate prices in California. I mean, a lot of the median home prices are exceeding the minimum that you would want to have to do some type of at least minimal estate planning, if not some complicated estate planning. So,

2:02 And even with a recent law that was passed that lowers a threshold for some sort of a limited yet still unknown what it means, still good to have a plan to know where you're going to go or not go, right?

2:12 Yeah. Because even if you have that, you're still stuck in what we call the intestate succession. And there may be situations like family situations primarily where you know not every family has this perfect situation where everybody wants everything distributed equally you know and there may be other reasons for that too you know

2:30 And again just kind of starting off at a high level you might have if you have children that becomes issues as far as what happens god forbid if both parents are gone who raises them how they raise what kind of things are taken care of. So there's another reason for plan. And then lastly, for when you're not able to make your own decisions, estate plans come into effect there as well. Correct.

2:48 Yeah. So a lot of people just think, oh, you know, I've told our neighbor or our whoever that if anything happens to me, I want to take care of the kids. Unfortunately, that doesn't work. You know, you need to set up a guardianship. Guardianships are set up through as a process of doing like a comprehensive estate plan. And the reason for that is being you know the court is actually going to send out a investigator to make sure that these people are capable and willing to take care of minor children.

3:16 And I think the people who have that my next door neighbor take care of the that also always includes a couple cats. Just my experience the same person has trust the neighbor always has a couple cats. I don't know what the connection there is. I'm not a cat per I grew up with a cat. I had a cat as a pet where we live but I don't know what it is about cats and that kind of idea. Okay. So, let's go back to the beginning.

3:35 I'm going to advocate for them right now, too, now that you mentioned that. So, in California, there's actually a specific statute that allows you to create a specific pet trust. So, don't just use a word of mouth even for your cats.

3:47 And I'm not necessarily advocating for cats or against cats. I'm not, you know, my personal feelings towards cats. I am allergic for the record medically. But okay. So, let's go back to the beginning. Let's talk about estate planning as it relates to real estate. To me, it seems that anytime I'm looking at listing a property, meaning they're they want to sell a property and I notice the public records are going to show me it's either deed as Bob and Mary Smith or the estate of Bob and Mary Smith or trust Bob Mary Smith trust or something like that. Seems to me that the proper t that if it's not held in the state, or I'm sorry, not held in the trust that at least I should ask the question because if you're selling it and cashing out, that those are substantial assets and there's tax issues. So, tell me why somebody perhaps selling a house and cashing out, who didn't have an estate plan might consider doing one at that time.

4:38 Yeah, so that's a great question. So, I like one thing you mentioned first that like as soon as agents get a listing, please pull a title report and review it. If you don't know how to review it, just contact an attorney. A lot of times you can contact attorneys and just be like, "Hey, can you take a look at this real quick? If you have a good working relationship, they'd be more than happy to help you out. At least figure out what's going on with it." So, once you know what the vesting is like, or I mean even your title reps, too. So, once you know what vesting is, then you know who has legal ownership to the title. That's going to create a plan for you to move forward because you want to have your listing agreement match the vesting. You want to have your contracts match the vesting. You want to have your escro docs match the vesting and that's just going to honestly make your whole transaction a lot smoother. It's going to make your escro agents love you at the end of the day because you're not going to get to the, you know, 28th 29th day and then say, "Oh my gosh, we need to rush into court to get letters testamentary or letter, you So, if it's just in an individual's name and they're alive, it's very simple. If it is in like John Smith, trustee of the John Smith trust, then you just want to see a certificate of trust or sometimes it's called a cert certification of trust or a trustee affidavit. Okay? That just basically verifies that there's a trust, it exists, and that they're the actual trustee who's entitled to manage the assets on behalf of that trust.

6:00 Okay? And they have the paper and they have the paperwork to document. Yeah. One thing is too is some trust certifications can be created when they initially formed the estate plan and maybe it's now years later that you're doing the sale or purchase. So, you just want to get an updated one too to make sure the certification is valid as of the day that you enter into the listing agreement or you sign the real estate purchase agreement. If it's in the name of a deceased individual, if they were the if it was held as them as trustee, obviously you want to get an updated certification of trust and make sure that there's no probate that's been opened and that the successor trustee, so let's say if John Smith owned it, then passed away that now, you know, John Smith Jr. Is entitled legally as the successor trustee to operate under the trust and to list the real estate and sell it. And then if it's an individual that had no estate planning and you think there's been a probate that's been open, then you do want to get letters testamentary. You want to make sure there's a bond in place. You want to make sure that there's no order prohibiting the sale of the real estate real estate or anything like that because that could just cause a host of issues. And so I'd say at that point, I would recommend at least consulting with a probate attorney that can basically check all those things out for you. Make sure that you're not running a foul of any beneficiaries or fiduciary obligations.

7:22 I think that just for an action item for those who are watching the first thing you said that anytime we list property in fact I do before I list before I list the property as soon as the referrals made to me you my tower company will allow me to pull a listing agreement because and I just want to say for the record this is today is July 25th when we're recording this but I literally today closed in escrow that three years ago at least and maybe four it came as a lead that fell out of escrow because there was problem with secession. Somebody had died. It was a husband wife and the husband had a trust for part of it and had a didn't for the other part which went to probate. They didn't realize that. So they got to closing and realized there was a error that was included. And three years later after you know hundred something thousand worth of attorney fees and three years of time and multiple escros falling out we finally closed it because original listing agent didn't pull listing agreement day one. And had they done that, they'd say, "Stop. We have a problem. Let's work on the problem." And the longer it goes, the more as tough as it is, the longer it goes, the worse it gets. And so, I think that's the best advice ever is always get a listing agreement before you list the property and make sure you know who clear because sometimes you get the listing, I mean the prelim. Sometimes you get the prelim, there's the name of somebody you don't know on there. Well, there's a reason why that's there. It's not like the town copy is stupid. They're saying there's an old deal that you need to start working on now and the sooner you work on the better. So that's great advice, Mark. Thank you so much. And then also I would say that talk to your local tour up. I've interviewed on this call Kevin sales and other title companies. We're glad to give you tools to pull up records as well as to review the title reports for you. So that's before somebody buys. I mean before somebody sells, how about when somebody buys? To me, that's a difficult situation because if you're starting your shopping process, maybe you get, you know, estate plan done at that time.

9:16 But buying a house is so time-consuming, there's so much paperwork. It's also maybe the wrong time to do estate plan. So, I guess my question for you would be, have you ever had people who are in the buying phase that they want it in place for when they close? To me, it makes sense because now you have an insured title in the name of the trust, but I understand it's difficult. And so even though I encourage people, I very rarely seem to fall through on that. Have you seen clients buying a property who didn't have an estate plan doing one during that timing process? And do you encourage that or is there some other solution you recommend?

9:47 Yeah. No, actually it makes a lot of sense to do it that way. I mean, the ideal situation would be we set up an estate plan early on and then it gets modified as your life grows with family assets and things like that. So that way we can keep it current because life's uncertain and you never know what's going to happen. I mean, you've had strange situations where people you never thought would pass away and then you get a call, oh my gosh, I can't believe that something already happened, but luckily they had something in place. So, ideally, you'd want to have it from the get-go. Now, if you are going to basically start to purchase a house and realize, oh my gosh, you know, you sit down with escrow and they're saying, how do you want to vest the deed? And you look at each other and say, I don't know. Hus you know single sold separate property husband wife joint tenants in common you know you don't know in California if you're married there's you can also do community property with right of survivorship if everything's you know so you have multiple choices that you can do I have had people that do want to set up an estate plan right away and I would recommend that because now for the majority of Californians right their home is gonna be their primary asset that they appreciation for is going at such an accelerated rate over the last decade at least and even longer that even if you buy it at the beginning of the year, you're going to have equity in a relatively short period of time, right? So, you do want to protect at least that from the get-go.

11:12 So, what I would recommend is yeah, set it up. I mean, it is a hassle, but I mean, you're moving, you're doing a ton of stuff anyways, so oftentimes it just get pushed off to the back burner and then you find out people like, "Oh, well yeah, you know, we've had it for years. Never actually got busy. We started going to baseball practices and stuff like that. So, but I would set it up right away because even if you set up your deeds as joint tenants in common, community property with right of survivorship as husband and wife, it's like, well, did husband and wife drive to the escro office in the same car together? I mean, are they going to drive home in the same car together? Like, that only protects you if one spouse predesceses and one spouse survives. By automatic right of survivorship, the surviving spouse will get the property or however they decide to lay it out as tenants. But if you're both there now, you're stuck in a situation where it's like, well, who's going to get the property? Well, if they don't have anything in place, now we're going through a full-blown probate and we're going right instate succession. So,

12:11 And I've als I've also been in involved in too many probates where people buy bought a property and then wanted to deed it into the trust and either they never prepare the deed, they forgot to or they got the deed, very common. The attorney prepares it to them, gives a nice little folder to put it in or binder and they never execute it. They execute it, never record it. And I've also seen deeds where improperly prepared. Maybe the wrong APN, maybe the wrong address was slightly typoed or something wrong or the name was one digit off or is a senior junior situation. And so the beauty of getting it done before you buy the house is then it's deed and you have title insurance that it is in the trust which is where you want to go. You're paying for title insurance anyhow. To get it afterwards is going to cost you money. People don't usually do that but you might as well benefit from the town insurance you're spending and just get it deeded in. So now this brings up

13:04 Just on one other point on that is a good I mean even from my perspective it's like hey if you want to come and my office I'd be more than happy to put a deed into a trust for you but I mean if you don't have to then just don't because why would you excess money? So, if you actually do set it up beforehand and the title company will deed it right into your trust right then and there, right?

13:26 Will save you an expense because I've also had the opposite situation where people didn't talk to me beforehand. They deed it into their names individually. Then they come to me like a month later, create a trust and now it's like, well, now we have to basically deed this right back into a trustel some money up front. You know, I don't know how you are, but like, you know, occasionally closing, I get a large check, you know, I recently got a check for it's not all my money, but you know, made out to me. And you know, $300 something thousand check, and I'm like a little nervous like I go right from there, right, to the bank to deposit. Not that they can really steal it from me, but there's a feeling of heaviness, right? But the house, if you're deed in your personal name, so it's not in the trust and your intentions to, it's like the attorney's giving you this million- dollar asset and it's kind of at risk until it's put in where it belongs. I just feel like you should get it done the right way if you can. Now, again, some people can't. So, this brings up a question I get I have with attorneys all the time, and I don't give legal advice. I give business advice. My business advice to people is even a bad trust or bad estate plan that includes a trust is better than none 90% of the time. Now, not 100%. There's obviously outliers, exceptions. So, I'd love to get your reaction to that. Even like and the scenario I'm thinking of is somebody's buying a house. They don't really have all the time to go through the whole process with you, but Lisa says get it done and then you can amend it, but now the deed is in the trust and they can always do the rest of the work later and make amendments. So, true or false, again, I'm making a business assessment.

14:53 You're giving legal advice, I guess. But not too many on the call. A bad or incomplete trust, as long as it's fully done, is better 90% of the time. True or false?

15:04 Yes. Actually, let me give you my little disclaimer, too. So, I'm not actually giving any legal advice at the moment. U if you do want legal advice, then you'd have to call the office. We have to turn it to a written retainer agreement. I'm going to actually go with false on that.

15:20 Okay, let's go. Let's hear it. So, my perspective is that if you put an estate plan in place, it should be an excellent estate plan. It should be a good plan that will basically be clear,

15:37 Unambiguous and carry out the intention of the testators or the settlers, okay? The people that create it. And what I've seen is that if that happens, then things go smoothly. And if you set up a trustbased estate plan, and I'll back up a second, a will-based estate plan would be intended to actually pass through a probate, but in an organized fashion, through court supervision. A trustbased estate plan, most of the time designed to pass outside of the confines of probate, be administered basically in an attorney's office and not under direct court supervision. Okay. So, if we set all that up smoothly, then that will be taken care of. I've seen a number of when you say earlier, you know, like, oh, are you getting all these calls for fires to be put out and things like that? I've seen a number of poorly drafted trusts or trusts that did not completely anticipate what the settlers intended or that there's allegations made that they were done in haste and the individual executed the documents under dress, undue influence or other means probably to lack testamentary capacity. And what happens then is you usually get a huge letter from an attorney and then they say, "This is what we want to have happen. If we don't happen, we're filing a petition in the court in 10 days." And then that basically takes that and throws you into the court system in trust litigation or will litigation, probate litigation, and then now it's kind of like, well, all bets are off. You know, I've had I've got a case now that we was actually filed before COVID, I think 2019. Still litigating that. So,

17:17 So one of the most common misconceptions I get are that if you have a trust, you avoid litigation or a trust will keep you out of litigation or out of probate court. I say, well, that's just factually not correct. How would you answer that? You must have the same objective.

17:34 General matter. I have to look back. I think as a general matter basically that is true because most people that have created a trust have made their intentions known to their families is to you know hey this is what I want to have happen executed the docs that will allow that to occur and everybody's basically on the same page and all the people are being generally reasonable and everything runs smoothly. But trust litigation is a growing area of law just because a lot of people are getting trusts and attorneys are finding ways to basically attack them and litigate them. Now, are all of those issues going to be legally sound? No. Are some of them? Probably. And a lot of them are just going to be factual disputes between family members that have to be decided by a trior of fact, which would be in probate and trust litigation, the judge. So, I mean, a lot of it, most of what I've seen is probably just like family disputes and squables that existed during the lifetimes of the people that were never resolved and they're now being carried out, you know, beyond that. But yeah, so a trust is not necessarily going to avoid litigation. A will is not necessarily going to avoid litigation.

18:55 And doing no estate planning at all is not necessarily going to avoid litigation, right? And if you have people that want to contest something, they're going to find a way to contest it. They're going to find an attorney that'll probably take on that case and you're going to end up where you're going to contest. Now we do still put clauses in the documents that are drafted like no contest clauses and they basically say if anybody tries to contest the terms of the will or the trust without substantial justification that then they would be excluded as if they predesceased basically died before the individual that created the trust and if they die before them then they obviously are cut off and they get nothing. So, we do try and put some clauses in there to various efficacles of efficacy, but

19:42 It just seems to me if there's enough money in the trust, somebody's going to sue for something like there's it almost feels like and sometimes you see these lawsuits probably think, what are they really thinking? Well, the answer is they're just going to squeeze some money out of it somehow and it's almost like a business decision as opposed to anybody really thinking through the legal case. Is that is that fair assessment? I would say to some extent to some unsophisticated contestants that think that they're just entitled to something.

20:11 Yeah. However there are other sophisticated contestants but a lot of times on the larger trusts and estates if they are contesting it because of the complexity if there's LLC's various parcels of real estate businesses things like that charitable remainder trusts whatever you have it's not necessarily readily apparent on the face of the document whether anything has been done incorrectly right so if we have a small trust and it's like, hey, the house is supposed to go to son A and it goes to son B, then we know something happened and that's pretty clearcut. If there's been some type of accounting issue on a complicated trust with a, you know, a huge business, then that's actually going to take a forensic accountant and an expert to come in and evaluate whether any money was mismanaged and to what extent and to where it actually went to. And then you have to prove whether there was any willful conduct that caused that. So a lot of times what happens on kind of the more sophisticated end is that a lot of money will end up going to the accountants, CPAs, the tax professionals, the lawyers, the tax lawyers and everything else. So

21:26 Yeah. Yeah. Now do you do estate administration as well? Trust administration or just a

21:35 And you do litigation as well, right? So let's talk about administration part of it. It being the real estate agent often being brought in to obviously sell the real estate assets. You know I have a chance to talk to customers sometimes away from the attorney and it seems like the most common mis communication is the customer expects the attorney to handle everything whereas the attorney really is the legal representative can be the administrator. Sometimes is, sometimes is not, but that's a whole separate role and not majority of time and majority of the time the attorney is just doing the legal stuff and there's like a little bit of mismatch of expectations. And so obviously the way to combat that is good communication up front, right? And also bring good vendors. Is that is that something you see when you talk to people who must call you from other attorneys or upset the guy did the plan but he's not doing anything to help me out here? That seems to be a common experience for customers. Their expectations are misaligned with the service they're getting.

22:33 Yeah, sometimes that does happen. We try to avoid that with clear communication meetings and followed up with basically, you know, here's what we're going to do, here's what we discussed, and here's what we did. But a lot of times, I mean, just to break it down generally, so when you're alive, obviously you can sign away any of your real estate, you can purchase any real estate, you can sign any of the contracts you need to purchase or sell it, and you can also execute the deeds needed to either transfer title out or transfer title in. Once you pass away, however, if you didn't have any estate planning documents in place prior to that, the only way to do that is then to go to a court, talk to a judge. The judge is going to hear testimony and issue an order. And then that order could then be executed by the executive or the administrator of the estate. Okay. So the attorney's role is to basically get the facts from the client, submit the paperwork and make sure that an order gets issued. Okay. A lot of the times at the end of that the order has been issued. That's the extent of the scope of representation. Once the order has been issued that is and letters testamentary or letters of administration, those documents are then given to the administrator or the executive and then it's their job to basically walk them from the attorney's office down to the bank and do whatever they need to do at the bank or down to the real estate agent's office do whatever they need to do there or down to the escro company and do whatever they need to do there. So, an estate administration is not an easy job. It's oftentimes an unforgiving job because you're held to a fiduciary standard and oftentimes it's just an individual that's like, well, you know, mom just died and the five siblings nominated me, right? But they're held to a higher standard. But also, if you're in an intestate succession where there's no estate plan in place, they are getting compensated for that, right? And usually it's the same amount as the attorney statuto. And if it's in a trust administration, there's often provisions in a trust that says any trustee other

24:36 Than the people that created it are entitled to reasonable compensation. Okay, we can break that down and figure out what that is based on their circumstances, the complexity of the job that they did and things like that. And there's also private professional fiduciaries that a lot of people don't know about that I'm a big fan of usually because they are licensed by the state.

24:57 They are bonded. They are usually insured with some type of errors and omissions insurance and they do this on a day-to-day basis. So you can put them in charge and they can make decisions and do things and carry it out in an efficient manner. So

25:11 Well you gave us a lot. Let me unpack a little bit. The first thing you said is the administration of the trust or the probate is a job. And I think that's what people don't understand is nobody would do it for free unless they had to or sense of guilt or responsibility. It's work. And it's the kind of work that I get paid for as a real estate broker. It's very similar, you know, stuff or you as an attorney, similar stuff, meaning the, you know, without the legal part. Somebody you're running your business if you took all your legal advice, that part of your job. And most people would never do it without getting compensated. And the law actually provides by statute on a probate the same schedule maximum as attorneys get paid, recognizing that it's a lot of work. It's as much work as the attorney. You're going to the same hearings or going to whatever, you know, discussions there are with the attorney and then all the rest of the stuff that goes on as well. And so I think you have a choice when you have a estate or a probate estate or trustment to administer either a have somebody who's doing it who has the time and the capacity to do it. It's not necessarily the wealthiest sibling because he might be or she might be too busy to manage this extra job they now have. And I do think that more and more in my business, I'm recommending private fiduciaries. I just see that so many people are overwhelmed with the work involved, the accounting and the filings and the need for extra communication. And so, I know that for me, I have several I work with, refer business to. And I know as a real estate agent, it makes my job a lot easier. And easier doesn't just mean I'm going to sit around the pool and drink cocktails. It means I can get the job done for the customer more efficiently, effectively, at a better price because we're moving quicker like a professional. So, I'm glad you kind of mentioned the private fiduciaries. I would urge anybody if you're a Realtor®, you should learn more about working with them. And if you're an administrator, executive of a probate estate or administrator of a trust, look into or to ask your attorney or a Realtor® about fiduciaries that can help you and they get paid, but they also, you know, now you're not doing that work. You're doing the work you get paid for. And so, see like me, instead of administering estate, I can sell a house and make more money per hour than I would

27:13 Administering. So, it's great material. Now, it's interesting you went to the fiduciaries because the other thing I find about that is there's no job I know of in America that I've come across where there's more of a need and less people available to do the work. Meaning, when I call them, they're all so busy. When I've when I've sought to refer business, they're all they have very narrow niches. They all seem to be pretty much at capacity. I have a good friend who I helped get in the business a few years ago and he's doing really well and even he's now trying to get too busy. Everybody say to him, you can't tell me you're too busy. I helped you get into this. Is that just is that just me? Is that what you see as well? And then how do you kind of approach the situation of do you have one you recommend or do you have a you know a methodology to find the right fiduciary when you for that?

27:59 Yeah. No, that's a great observation. I think that is true. I think that it's basically an area that either a lot of people don't know about or a lot of people aren't going into. But I do find that yes, there is a shortage of them. A lot of them have been able to get appointed on I guess what would be the equivalent of like a panel. So their names are listed as potential fiduciaries would be able to serve if the court needs an immediate appointment.

28:28 So they get a lot of some of them that I've talked to get a lot of court-appointed work. A lot of them also will have minimum estate thresholds. So, you know, they'll talk to you and they'll say, "Oh, yeah, we'd love to help out, but our minimum estate is X, and if it's below that, we're just not going to take you because it's just not going to be worth it for me." So, I think that, yeah, a lot of them are filled to capacity. I think a lot of people should explore getting into that career actually and I think there's just basically just a shortage of them at this point probably. I think any attorney, anybody who's an accountant, whether you're CPA or just have an accountancy licensed should, you know, looking considering career changes. They're in a niche they don't like. You know, attorney, you get into family law and you hate family law. This is an area that I think has some wide opportunities. And it's very administrative. So, you have to be into the details and the accounting and the paperwork and all that. But from a business point of view, it just seemed like there's more business than you could ever handle. And for good people, I mean like for big estates like we you know we got I got one it came to me with $40 million of total assets. I was able to refer it to somebody because we need somebody good to handle it. Like

29:39 It's not just I'm referring it to somebody. It's like but if he doesn't do his job then we're not selling the real estate. I don't get paid. So it's really it hits everybody if they do a good job and creates like a flywheel of more referrals I think.

29:53 Right. So, now I do know that we recently had a, law passed in California that purports to break off a portion of probates to streamline the process. It was only for decedents after April 1st. So, unless they pass after that, they're not eligible, number one, and there's other restrictions. And I know of some firms kind of preparing a package for that kind of like a fixed price, low cost, turnover quickly. Are you aware of anybody who's actually entered that process and passed because I don't think the forms are done yet. I can't imagine that the title companies are going to ensure the title. I mean, just I'm not here to talk anybody out of it, but I'm just saying how that law works. I just can't imagine how that process would work and get through the system. I just don't think we've as an industry been able to accept that yet. Have you seen any of those actual streamlined processes or the newer process AB whatever it is? I'm drawing a blank on it. 91 or something. Have you seen any of those done yet?

30:52 I've taken some seminars on it, some CLE on it. I'm always leery of anybody that does like a one-size-fits-all, low-cost fast easy set of forms or get something

31:03 Yeah. Pushed through the court system. I have no experience with those forms. And we've just for the most part just due the size of the estates I'm working with have just been basically been going long as kind of like life is normal. So

31:17 Yeah, it's an interesting topic, but I don't think it's one of those things where No, pretty quickly here, but well, they should be in a sense, but like I said, you know, I can imagine you could sell the property and then you get ready to close escrow. The title says, "Well, we're not insuring this because you know, I you know, I have cases where you know, on a standard probate, maybe a notice of proposed action is not required. Maybe there's one heir and that's the administrator. There's no other hairs to notice but the administrator and the t company will say well we need to have a notice proposed action. I say well the only notice is to the administrator obviously right but and legally not required attorneys will say to me is legally required but the tow company won't ensure it and either change towel companies or browbe the tow company to come around and this is one of those cases this new law it sounds great but I just don't see it happening unless somebody comes to some sort of a change of heart. Yeah. So, okay. So,

32:09 Stepping back also to notices of proposed action are usually pretty much always a good idea anyways because so we've got two general types. We have notice proposed action and probate. Oftentimes those be court ordered for specific types of assets, real estate, large sales of businesses and things like that. And then on the trust side, you could also do notice proposed action. And a lot of people, you know, like are in the situation you're in. It's like, well, hey, there's just a small asset. We're all getting along now. There's only one person, but the title companies and insurance companies don't necessarily have access to all of the court documents, right? They not may not have access to all of the trust documents because a lot of times those are private, they're not an attorney's office, things like that. And so it is usually always a good idea just to do one anyways even if everyone's on the same page because if everyone's on the same page they can sign off on it. They can do a waiver of it. They can do everything. At least you have paper trail because you are representing an administrator or an executive or a successor trustee. You know, they are under a fiduciary obligation to keep the beneficiaries reasonably apprised of everything that they're doing and to keep records of basically all the actions that they've taken and it'll just kind of tick off a few boxes those it'll make sure everybody's pretty much at least in alignment hopefully because that way they're aware of the transaction before it actually occurs you know and it's like oh well I didn't know that the house was selling or you know whatever so usually even if it is it's still like a best practice I would say even if it's not recommended We like to do a lot.

33:43 So, it's funny you say that because I have I have two this week. One is a property that's a trust. So, normally would not require a notice of proposed action, but there are some beneficiaries and there's some been some objections and litigation process and the attorney, you know, to protect the fiduciary out action. One of the areas objects and the problem is this particular property is a duplex where there's two tenants, one in each. It's in a city where they're they have complete rights. It's not LA, but it's like LA where you cannot get them out unless there's default on their part. So, there's nothing you can do to move them out. You can't say you're going to live there. You can't say you're going to redevelop the property. There's nothing you can do to move them out. And now, so you have this property with two tenants and now we've noticed prosaction with court confirmation. It's tough to get good value for the property when you start layering on these risks. And I'd love to say to the objectors, just, you know, do you realize you're just shooting yourself in the foot? The money, you know, we'll I'll be transparent with the market. I'll be transparent with the contracts. I'm glad to share with you. I'm not cheating you. I'm not representing the buyer on the deal and we'll pull the money the bank you can control. But sometimes I feel like the nose transaction gives the objector the sense of power, but they're really shooting themselves in the foot because they don't really know what they're doing with that power.

35:00 Sometimes, yes, it can be just an exercise of you say it's up, I'm going to say it's down. You say it's sunny, I'm going to say it's raining. You know, it's just I mean there are some issues like not are a lot of geek litigation can end up like that where it's just whatever you do, I'm going to do the exact opposite.

35:17 Right. Right. Makes it difficult. But I mean the nature of the beast. What are you going to do? It's the nature it's the nature some people and they're just going to fight and fight. And another one I have is a case where the credit it's a creditor who's represented by an attorney and they're filing to change the administrator. They objected to the administrator for various reasons and you know it was a complicated case and I tried to explain to her why it took so long. It was in forclosure. We the administrator actually helped borrow money to get the loan out of foreclosure which is most administrators couldn't do that. And now we're trying to sell the property and I'm calling her saying please don't object to the sale. Like the money is going to go in the bank account. You can you can fight over the money. Why fight over the house? You're just going to get less. Like and you know I don't really care in the sense I'll get paid either way but why would you want less and force a longer process and I can't get her on the phone. I've emailed her. It's like because I know she wants to show her client how tough she is. Like you say up is down is up. They're just going to argue for the sake and I feel like I do my best to try to help avoid that. But that's a tough part of this business, I think. And a lot of times too is I mean you can you know there's various tools like notice proposed action is just one of those tools. You know there's also blocked accounts which I really like.

36:31 Yes. Which are it's like look we have this asset the market's good now or the rates are good now or there's a ready willing and able buyer right now.

36:40 Yes. Just deal with that. Get rid of that headache you know or maybe a lot of deferred maintenance or I don't know what it is. There's various reasons why you would want to get disposed of real estate pretty rapidly as opposed to keeping it on until litigation continues. So it's like you can sell the asset, have the funds go from escrow wired into what we call a blocked account, which is a separate bank account that funds can go into, but they require a court order to be withdrawn from,

37:10 Right? Right? You guys can fight about everything later once everything fight over the cash instead of the real estate, but don't limit the sale of the real estate while you're fighting because you're just you're just taking money on pocket. You know, the whole process obviously is challenging and there's emotions and business decisions for all of this stuff. So, I try to be mindful of that, too. Well, thanks for helping clarify some of that. And then, so you also handle litigation. Now, as a attorney, do you handle litigation where somebody had an estate somewhere else and now they're being an estate plan done somewhere else and now they're being they see litigation or do you only handle litigation on your estate plans that you do yourself?

37:47 No. I do handle estate plan litigation for estate plans that others have created. So,

37:56 So hopefully it's because maybe the estate planner missed something or left the door open or didn't lock the door as well. So, what are one or two, not drawing on any customers particularly, but I'm just saying in general, what are one or two errors you see in estate plans that make them more at risk of litigation versus if you plan properly, you can help close that door and lock it.

38:18 Yeah. A few areas I would say generally speaking if I'm going to divide I mean we're just speaking in general terms here the ages of people under 65 and the ages of people over 65 if there's people under the ages of 65 I would say from my experience the most common source of litigation is basically just what we would consider errors in the paperwork okay or unclear dispositions in the paperwork. Okay. So, if you get an estate plan, you should read through it. Like if before we sign documents, I go through every page with my clients to make sure that they understand it and it accomplishes the goals that they want to have accomplished. So, I recommend clients do that well if the attorney is not going to do it for them because they may catch some issue, right? And they need to discuss that with the attorney so that way they understand it. The attorney understands it to make sure maybe it is an issue, maybe it's not an issue, right? But there just needs to be clarity on what they're signing. So, I would say that's the primary u source of litigation is just ambiguities or I mean sometimes just outright mistakes or misspellings or something like that. It's a little more rare, but it does happen over 65. In the state of California, there's statutes that basically protect for financial elder abuse, financial physical abuse, things like that. And there are increased provisions for damages if somebody does commit financial elder abuse against somebody. And there's other measures that basically the legislature has determined they want to incentivize people from not harming the elderly population. And so over the age of 65, I think you're going to get a lot more cases of allegations regarding that. And then also just because of decline in health towards the end of people's lives, I think you get a

40:21 Lot more allegations of maybe lack of testamentary capacity, undue influence or things of that nature. So I mean we literally have this discussion with our president of United States politically and that's and I'm not saying one side the other. I'm saying we're having the discussion. One reason is we have older politicians. We also have an older population that just reflects the population is getting older and so whether or not they're incapacitated or not, again, no position on the politics. You can make the argument when they're in the radius, right? It's a reasonable argument to start from whether it's true or there's evidence or not, that's to be litigated. But as we get older as a as a country, I think there's more and more of these situations. It just seems to me more and more real estate cases I come up with where there's a probate or a litigation on an estate, it's something to do with the age and then, you know, the father has some new girlfriend or the caregiver became the girlfriend or the caregiver is, you know, depending on who you are. Either the caregiver was a great nice person and the kids ignored him and he fell in love with her or she's just a scam artist and has her boyfriend on the side. It just seem like there's just more of those every day.

41:27 Yeah. And the and this and the legislature and the California legislature has adopted the statute in the California probate code that there's a presumption against caretakers who aren't related by family from taking dispositions of someone they've cared for that deceased then change their estate plans to provide for them. So

41:48 Yeah and still people try. I don't know that the word's gotten out to the scam artists. Like the attorneys all know this, but and the problem is that even if you're right legally, right, you can have a client come in and you can show them how the law is in their favor, once the deed's been propertyy's been deeded, perhaps depending on the situation. I've seen I've seen them just deed the property to the caregiver. It's just a problem to get it back out. I mean, it's not like you can be right and the and the scam artists go, "Oh, you're right. You caught me scamming you for your million-dollar house. I'll get it back what I need to do." They're they disappear. They're trying to sell the house. They're trying to get money. They're and it and it requires a whole legal process. And so that's why it's important to check these things. And I tell my real estate agent friends, you should be checking your customer's public record information. We have tools title companies give us for free. And if you see a deed that looks odd, bring it to your customer's attention. Hey, I noticed this deed. Is there something going on with your property that I can help you with? Because I know in my case, I had an elderly aunt with a caregiver and we had some suspicions of what was going on and I just made a note to check the deed every 30 days just to see was there anything happening there. Didn't cost anything but I know she appreciated the protection. So those do

42:57 And that's a great thing too. So I mean if there is any suspected elder abuse I mean obviously adult protective service public service that's available you know people can call and report. And then also at least I know in the county of Riverside whenever we record a deed then a letter comes back basically saying there's been something recorded on title to your property like here's a little document number and a little image of it. Do you recognize this? If so great. If not then please call our real estate fraud. So a lot of those things are I think probably pretty good ideas.

43:31 Last question. Just because it seems to dominate the business press so much the changes are going on in all industries as a result of technology and particularly artificial intelligence you know like you I'm a small practitioner I'm affiliate with a large brokerage but my business is really me and my couple you know team members and such and so all these tools are very powerful for big organizations I find that I use them through companies like services that I that I pay for and they're integrating this technology and upgrading their service as a result I don't really I use check GPT all the time I use other tools all the time but it's not that's not transforming my business the software is for you as an attorney obviously you can take deeds take contracts and have them read you can also have contracts created but I imagine you also have legal specific forms that do that at a professional level rather than what I would do how do you see the changes in artificial intelligence as of today affecting your business

44:28 So as I sit here today I mean it has impacted the business in the sense that from a legal perspective there have been a lot of attorneys that have used like a chat GPT some similar artificial intelligence and have I think experienced what they call like artificial intelligence hallucinations where it's just creating fake cases or fake citations or improper legal analysis and they're just taking that there's been instance I've just read court orders where it's been I don't know if the allegation are cut paste, but basically it's somehow been brought before the court and not been accurately verified through one of the tools that we use to basically verify whether a case is still good law, whether the proposition that it stands for is still good law and whether the legal reasoning behind it is still good law and has not been overruled in part by another case or subsequently by statute or something of that nature. So to that extent I know it's caused other issu other attorneys problems. I know there's even situations where san monetary sanctions have been issued for filing documents that

45:38 So for me I think that I mean it's an amazing technology. I still go have to go through and I do pretty much everything the way I was doing it prior. Just make sure that nothing like that would ever happen at least from my perspective and then but I do think it's advancing so rapidly that it's you know it's just hard to say when how soon it will actually maybe start really seriously impact

46:06 I imagine if you're doing estate plans you use some sort of estate planning software they have certain templates or different technology and they're implementing AI into that tool that you're using so you're not actually using a directly but indirectly it's improving the service that you're able to give your customers. I would think

46:23 It's a possibility. So yeah, I've been a member of WealthCounsel for there you go a number of years now probably decade. I think I have to double check that for quite a long time.

46:34 That seems to be the gold standard of estate planning software when I talk to attorneys. So well look Mark I know we covered a wide range of topics. I really appreciate your time today. For anybody's interested in getting together with him specifically is the best way to just go to the website and reach out. So you have a phone number there, contact us today link

46:51 Right there. Exactly. So trustabell.com is the website. Trustabell.com is the website and then down below I have his phone number [phone number] as well as his email [email address]. And if you're not catching this, it's in the description on the YouTube and otherwise feel free to reach out to me to put you guys together. Mark, thank you so much for your time today. I really appreciate your giving us your insight and expl explanations and appreciate your time.

47:19 Yeah, thanks for having me today. I appreciate it. Thanks so much. And for the rest of you, this is Probate Weekly. We get together every week with leading members in probate business, attorneys, most commonly vendors. Continue the conversation on Facebook at probateweekly.com is our Facebook group. If you have questions, if you're looking for referrals in other states, looking for Realtors® or attorneys or vendors and such, feel free to catch up with us there. I'm Bill Gross at Bill Gross Probate on social media. Feel free to reach out to me. Phone number if I can help 310210008. My contact information is down below. As always, make today your best day ever. Thanks so much.