Independent Reviews in Probate and Estate Planning, with Nathan Hoffman

0:02 Welcome to Probate Weekly. One of the misnomers I hear all the time is that an estate plan will avoid probate court or avoid litigation. The answer is it avoids a lot of percentage of it, but you put enough money on the table and there are people who are going to consider litigating almost anything. One of the tools to verify or prepare to try to avoid litigation is getting an independent review and there's a particular area of gifts and transactions that that are more suitable for reviews. I'm really lucky today to have attorney Nathan Hoffman who's done over 200 such reviews. Nathan, thank you for joining us again on Probate Weekly.

0:36 Hey, thank you again, Bill, for having me here today. Now, I talk a bit about what the purpose of the view is. It seems to me that it's it's prophylactic in that you're trying to prevent an opening or get approval of something that you're getting ready to do. Is that the nature of it or is it after afterwards you're getting involved?

0:53 So, independent reviews come from a California Probate Code group of provisions. California Probate Code 21380 is one of those important provisions. 21384, they're all together. So, this grew out of a series of lawsuits that were being filed all throughout California, probably all throughout the United States, in which caregivers were taking advantage of particularly elderly clients and using a line like, "I'm the only one that loves you and wants to take care of you. So, instead of giving your money to your family, give it all to me." And then lots of lawsuits were being filed by family members saying that caregiver took undue advantage of a poor senior, caused them to change their estate plan by improperly influencing them, and we, the kids, the children of the family, don't like it, and judge, you should change and reverse that estate plan to the way it was before it was changed under this undue improper influence from the caregiver.

1:54 So, let's just stop it there for one second. Let me just lay out the scenario cuz this is this is a common scenario that we see as real estate agents where a person comes to us either they're the child who got written out the portion they think is theirs most commonly and they'll say, "Well, this woman says she's a caregiver, but she really wasn't or she was getting paid and isn't entitled." The other side of the story is they're going to say, "Well, I am the caregiver and I was underpaid or I wasn't paid and I had room and board and I took a personal relationship." So, you know, if you were to assess of course you can't talk about your own current clients. What percentage of the time is that story it really is a caregiver and the and the decedent did intend to make a transition a gift and it really is a legitimate. What percentage do you think is that and what percentage do you think is fraud cuz to me well, I have an answer in my head, but I'm curious what your guess is.

2:42 Well, first of all, if there is a legitimate caregiver who is providing services particularly to an elder there is a clear path if that if that elder wants to make a gift to the caregiver. You do exactly what the code requires. You go through an independent review process where that lawyer meets privately out of the sphere of influence of the caregiver or anyone else. It's got to be a private meeting. And that lawyer if that lawyer is skilled and understands estate and trust work and understands these issues, he's going to have a conversation with his client because in this relationship it's an attorney-client privileged relationship. And the purpose of that meeting is to determine why is this person elderly or not wanting to make a gift to someone particularly in this protected class caregivers, lawyers, stockbrokers, whatever and making sure that the elder really understands it. You start with the premise that it's your money, you're entitled to give your money to anyone you want in an estate plan. You're not required to leave it to your children or others even if that is, you know, kind of the ordinary circumstance but not required. So, if the elder really wants to do that and it's free of undue and improper influence, and they have a reason for doing it, that lawyer, if they know what they're doing and they're experienced, can then issue a certificate of independent review. That will protect that gift to the caregiver.

4:07 If that doesn't happen, that gift is void and it can be if it's possible, you know, you can go to court and get a judgment be stopped to collect get the money back. But, you can go after that caregiver and make an attempt to reverse that gift. So, there are circumstances in which people have a wonderful relationship with their caregiver, want to give them a gift, want to you know, give them something in addition to their salary. That's perfectly okay. You just have to make sure that the person understands what they're doing and is making that gift of their own free will. And if that's the case, God bless them, let them do that.

4:49 And in this case, we had a relative who had an estate plan and you know, had devised how she wanted the money distributed including some charities and she did not include the caregiver as a gift. And in some regards, the caregiver was like her best friend for years and it had she given a gift, I would have said, "Well, that makes sense to me." Like it seemed reasonable, but she didn't. And when she passed, it turned out this case I avoided being the mystery that my sister was and she asked me about that. I said, "You know, I think you have to be careful here because this is what you're instructed to do. she you know, in this case, she laid out what she wanted the money to go to and even the caregiver made a case and said, 'Hey, I'm entitled to this. This is a common gift for people in my position.' and I left I didn't give my sister legal advice. I said, "You need to get legal advice if you're going to if you're going to deviate from the plan, you better get attorney to help you with that because you know, somebody could complain and somebody and this isn't what she wanted." And that's it. think an issue. So, you're talking about specifically though before while the scene's still alive and the independent review includes the capacity of the benefit the what's the term for the person who's having the plan done? The well, the original truster trustor. So, you're you're valuing the capacity. That's why you're doing it separately.

6:06 So, you want to see do they understand what's going on and are they under pressure? Lawyers don't really This is one of those tricky areas. Lawyers unless they happen to also be doctors or licensed psychologists or psychiatrists, don't really offer opinions on capacity, but we need to make sure our client has capacity. So, if we have a client and we're concerned about that person's capacity, the first thing we do is we refer the client to a licensed medical professional, psychologist, psychiatrist, doctor, and have them go through a capacity determination. and we've had to do that. It's doesn't happen a lot, but it certainly does happen. and then once I get the capacity determination from the doctor, then we can proceed with the independent review. Now, that's particular to California. There are other states where lawyers are able to determine capacity cuz that's the law in those particular states. But here in California, we have to understand it. We have to recognize it. We have to deal with it. But if there's a problem, we need to get an opinion from a licensed professional before we proceed. Separately and independently, the issue is is the person we're talking to, assuming they have capacity, do they clearly understand what they want to do?

7:23 Are they free of undue and improper influence? That's really the subject of an independent review. Is are they making their decisions based on their own choices or are they being pressured into making the decision? Is the caregiver, you know, sitting at the end of the bed, "I'm I'm only one that loves you. Nobody else in your family loves you. Nobody comes to see you. I'm here all day. So, guess what? You should leave me everything in your estate because your family doesn't love you.

7:50 Right. And in the So, one of the judges I know uses the extreme case. If you lock up the elder in a room and [snorts] say to them, "I'm not going to feed you and I'm not going to let you see anybody till you sign this new trust I just handed under the door." That's undue influence, right? So, that's the easy one. The more difficult ones are this day-to-day pressure, this day-to-day "Hey, I'm the one here with you all the time. Nobody else is coming to see you." kinds of And unfortunately, it happens. There are

8:21 Yeah. lots of great caregivers. There are a lot of wonderful And I don't want to leave an impression that caregivers are bad people cuz they're not. They are wonderful people doing a really important job. There are a few, however, like in every profession, who take try to take advantage of people and that's what we're trying to avoid. If mom or dad wants to leave money to the caregiver, it is absolutely perfectly appropriate for that to happen. It's just you have to go through this process to protect that gift.

8:52 Got it. Where does the caregiver relationship definition and the personal relationship girlfriend/ significant other begin? It seems to me that I see a number of cases that morphs and the caregiver is smart enough to say, "I'm not a caregiver. I'm a girlfriend and been like We're like I'm like the wife." That That That's what they try to run on me. I'm just a realtor. They're trying to sell me on They have a They're coming wife. I'm like, "What?" If it's on paper, it doesn't really matter to me. I'm the realtor. It doesn't, you know, tell that to an attorney. and I'm glad to make a an introduction. But where does it end? It seems to me that the caregiver has been I want to say caught, but maybe that that process has been developed more. but the personal relationship one is a little less clear.

9:38 There's a There is a series of cases that define who a caregiver is and also code sections that lawyers and judges rely on to define when someone's acting as a caregiver, particularly under the statute. That would be a whole separate podcast for us to deal with. It's a long complicated process, but in simple terms, the presumption's going to be if they're there and they're not married to the person that they may fall into that status as a caregiver, and good lawyers, good estate planning lawyers understand these problems and will immediately counsel their client to go through a process. I think I said to you off camera when we spoke some time ago. The point here is you want to avoid the litigation. So, a good estate planner will look at the circumstances, talk to his or her client, and say to that client, "Who's in your life? Who's involved in your life?" And if there's somebody who might fall into that category as a caregiver, plan for it. One of the things that they're going to do is to say, "You know what? Be careful. Go get an independent review if you really want to make a gift. Otherwise, it's going to at least lead to litigation, and more probably than not, that person will be a caregiver unless they are in fact married to whoever it is that they're talking about.

11:00 And again, there's a whole series of criteria that the court goes through in defining who's acting as a caregiver for purposes of the statute.

11:10 One thing you mentioned is that you don't necessarily determine who has capacity, but you're you're you're trained or you're you're supposed to be aware of the signs at which you should then bring in a professional make that determination. In some regards, I think I'm in the same position as a real estate agent. I've been on a case where I went out to list a property and I met the owner, and he seemed to you know, normal to me. He was older and moved a little slow, but his son called me in the afternoon and said "Didn't you notice this? Didn't you notice that?" And then as you start to put together, I'm saying "I noticed that, you know, in that house, and this was weird, and that was weird, but in talking to me, he seemed fully aware of what we were doing." And it turns out he really didn't have capacity. I mean, I you know, I'm not a doctor, but I could see where at the end I realized I was just too focused on getting the listing signed. I really wasn't even asking the question, "Did he have capacity?" So, what are some clues or signs? Now, obviously, you're not giving us a determination, but as a fellow professional, as either to your colleagues as attorneys or as real estate agents meeting with these people in their own property, what are some of the key signs and standards by which you would say, "Hey, we This you should pay attention to, and this one for sure you should be calling in a professional."

12:18 Yeah, so there are just so you know, there are various levels of capacity in the legal world. Basically speaking, capacity is you have to know who you are, where you are, what you own, and what you want to do with it, and who's around. I think you have to rely, just as you just described, on your not a lawyer, so you're not going to act as a lawyer, but as a person, you have an intuitive knowledge whether someone's got issues and capacity issues. So, if they're having troubles remembering who they are and where they are and what they own, and they're having trouble with their memory or whatever else, I think the prudent thing to do is to make sure that you're dealing with somebody who understands and is capable of making decisions. And there are lots of other things that come into play here. there's a medical my psychological medical theory called sundowner syndrome. Mhm. With some people, particularly elders, you might find out that there's a time of the day where they don't have capacity, but at other times of the day, they're perfectly appropriate. Several years ago, I performed I was asked to perform an IIR on a woman in her 90s. A lawyer who's a very excellent, well-known estate planner called me and said, "Would you go out and meet with my client?" I said, "Sure, I'm happy to do it." I went to her facility where she was living. I tried to talk with her.

13:45 She couldn't tell me her name, what she owned. I mean, it was clear to me that she had capacity issues. So, I called the lawyer and I said, "I can't do a review. She doesn't have capacity." He said, "I don't understand. When I was with her this morning, she was perfectly coherent. What's the problem?" Well, the problem was that I saw her in the afternoon and by the afternoon, she just wasn't there. But in the morning, when I went back for another meeting a week later, she was perfectly lucid, had capacity, and you just have to catch them. So, and then it there are there are times where I've dealt with someone who was overly medicated. That interfered with their capacity to deal with what I needed to know, which is their information and being able to respond to me and explain why they're considering making this particular gift or why they're excluding a child from their estate plan or whatever the circumstances are. And then I had to go back for a second meeting after the person changed their medication and now it was lucid. You know, that's another a non-technical term, but they were lucid. I think we all know it intuitively when we're talking with someone. And my rule is really simple. If I have any concern about the person's capacity, lucidity, I'm not going to perform the IIR and I will tell the referring lawyer to send out the client for a medical psychological report to make sure that they have the requisite capacity to sit through a meeting and meet with me.

15:16 And that's just a protection because otherwise the whole independent review or the signing of a real estate contract is going to be challenged and that we don't want that. We want to avoid those problems up front.

15:29 For sure. You know, it's still interesting as we go through this because I can think of so many cases where independent review would have been appropriate or would have been you know, helpful and yet other than talking to you, this is not topic that comes up very often and I have a sense that there are estate planning attorneys who do put the plan together and aren't maybe fully aware of either the details of the code and or don't see down the road the possibilities they're opening the door to. is this it seems to me that there's room for more education and discussion of the need for this than is in the marketplace. Is that just my assessment or is that is that true?

16:13 No, you're 100% right. There are a couple of reasons why estate planning lawyers don't recommend independent reviews. I'll not going to go through all of them but I'll give you some examples. One of them is they're not educated enough to really know it. Very sad because this is not difficult for a lawyer in the estate planning world to understand. There are seminars, it's in the code, it's been around a long time so it is inexcusable for any estate planner not to know about it. Number two, they don't like having another lawyer involved perhaps in their relationship with their client so they're hesitant to make that recommendation. Number three, it's an added cost and they may already have a client who is not particularly happy with the cost of the estate plan and then recommending to them that they go see another lawyer and pay another fee to do that. You know, it's going to interfere with their business so they don't want to do it. All kinds of reasons like that. The smart lawyers, the good lawyers always look at this and one of the lawyers I know for example in every estate plan that he prepares tells his clients about independent reviews and puts into his booklet that he gives his client at the end of the day a letter that says I told you about it I recommended you to do this and you didn't do it. Because he doesn't want to get sued for malpractice down the road.

17:39 And that's it's you know it's it's I think it's probably true in every profession. I'm sure your world there are lots of things that come up with the real estate world that you could do by sending them out to independent people and you know you don't always want to do it because of timing or cost or whatever it may be that's you know on that person's mind. But at the end of the day if you don't do it and it's needed all that's going to happen is you're going to get sued down the road.

18:08 You know I interviewed one of the top attorneys in LA I really admire almost like a mentor and we talked about business development but he said my only business development is doing good work. Now you can say that and this is a guy who's pulled it off. and but I think that this gets down to if you're doing estate planning you should be educated enough to know all the details because if you just know the basics you're competing with ChatGPT or some online service if you just know the basics and you have one template. If you really know all the edge cases and can help your customers avoid majority of them or all of them then you're creating more value and you're not competing with ChatGPT or the online you're you're the step up you're the Nordstrom's not the Walmart or whatever. And I feel like this is just one of those cases where yes there are some attorneys who are going to be bugged by another ones who are smart enough to say hey I'm really good at this and let me just tell you this is how you avoid problems down the road and you know the biggest misconception I get from customers all the time is an estate plan avoids litigation. I say well I can show you a whole caseload of cases being litigated in LA County that have trusts and have estate plans and have very fancy estate planning attorneys, but they're in litigation cuz you put enough money on the table, somebody's going to sue somebody for something, and you want to close those doors, I think.

19:24 It's a lawyer and 500 bucks get you into court with a petition in the probate court if you want to challenge a will or trust or an estate plan. And yes, the moment that somebody doesn't think that they're getting a fair amount or they think that a sibling is getting too much or someone's been excluded or all a host of a million other reasons.

19:43 Yeah. My background is as a courtroom trust litigator. That's really where all of my experience comes from over the last 15, 20 years of being involved in this process. I see I made my living representing people in trust and estate litigation. and the idea of doing the independent reviews came about a number of years ago when another lawyer who was an estate planner asked me to do one, and frankly, I really didn't know what it was 10 years ago or 8 years ago when this all started. But you realize it's it's kind of like buying insurance. If you do an independent review, and you do it with someone with credibility, I was with a judge last weekend who was a trust and probate judge until he retired. And he said, "Look, it also depends on who performs the independent review."

20:34 Yes. The criminal law lawyer who's down the you know, the hallway who has no experience in trusts and estates and spends 10 minutes with the client, it probably has very little value.

20:44 Right. If it's an experienced lawyer in the trust and estate world who spends an hour or more with a client really deeply probing the issues involved in the estate plan, then the court's going to give that certificate of independent review a great deal of credibility.

20:59 Right. So, I'm obviously not the only lawyer out there with a lot of experience who's done this work. but that's what that you need to find somebody obviously who understands and knows it. It's the same in every field, in your field. When you're brand new realtor, you probably need to have somebody with experience helping you out on that new listing that you're lucky enough to get because you don't know all the issues that you're going to run into. You don't know all the disclosure problems that your seller's going to have if they don't disclose the termite report or whatever it is that, you know, comes up. So, in every field, it's the same thing. Experience matters. knowledge matters. and your podcast and things like this, getting it out to the public and the people involved are really important so they understand the need to protect themselves or protect their client.

21:53 Well, I'm also trying to address the professionals, in my case, real estate agents and attorneys. You know, I work with attorneys every day and it when they don't do their job, I don't get paid and my customer's not happy and my customer might blame me for what I had nothing to do with, right? It just it you have a listing and the attorney doesn't get the paperwork done right for 4 months to get authority. We end up with a squatter in the house. I didn't have anything to do with that. and so that's why I think it's really important to raise the standards and in an age with AI and just in general, more competitive business, I think we all have to up our game and be more effective and seek to create more value for our customers. If we just do what we used to do, we're going to get replaced. You can copy what I did 2 years ago. You can't really copy what I did last month. I've added some pieces to my to my game and I think as attorneys, estate planning is great. but if you're not looking at maybe these extra steps of protection, you're really looking for some trouble, I think.

22:49 All you have to do is go to any one of the AI agents and type in I want to create an estate plan and I want to [laughter] gift to my caregiver. What do I need to know? And boom, it's going to pop up in California telling you need to go through an independent review and then you can talk to your estate planner or I want to exclude my son from my estate plan because he's a dirty rotten scoundrel and I don't want him using my money. That's not required with a with a independent that that the code does not mandate an independent review. So that's not a code required circumstance. But I can tell you like anybody else as a litigating lawyer

23:27 Right. I have a client that comes to me and says, "Hey, I'm a son. My mom didn't leave me any money and I want to challenge the trust." And I find out there was an independent review by a lawyer at the time who inquired of mom about why she was making that provision and she satisfied that lawyer with her explanation about why she's making that decision.

23:46 Right. I had I had a client who had that and I said, "Why are you leaving your son out of your estate plan?" She said, "Well, he went to the Middle East. He became a member of a jihadist group and I didn't want my money to go to a jihadist group. So I've decided not to leave him any money. Okay, that's a perfect reason. I mean, I don't have to agree with her choices.

24:07 Right. In that case I would have, but it's it's it's a rational reasonable reason why she didn't want money to go to her son that was going to go to a program or person or circumstance that she didn't want her money going to, which is her right. It's her money and in California she has control of where her estate and where her money's going. She can get everything buried if she wants.

24:34 And I've interviewed on this podcast, I have another one of [The Estate Planning Podcast], probably 100 to 200 attorneys on estate planning and I've had I've had scores say to me, "Don't disinherit that son. Give him something cuz it's harder for them to litigate that." I'm thinking after talking to you, well, no. I Number one, they don't want to give any money to that person. You don't want to You don't want to give money to jihadists. So instead of his getting an equal share of $500,000, you give him $10,000. Well, who wants to give $10,000 with a bullet or guns to the bad guys?

25:05 Way that works is if you give them enough money so that he's not motivated to file a lawsuit and spend money in a lawsuit. Right.

25:13 But he'll find an attorney anyway if he's really angry about it. The reality of it is that's really old thinking. I don't think it's accurate at all. If the son thinks that he's in that he's due money, he's going to sue, especially if the estate's big enough and the amount of money's there, and he will find a lawyer who's willing to do it. That lawyer's going to get paid. So, the lawyer's going to say, "Sure, you have a claim. I'll represent you. You know, let's see where it goes." But the reality is almost every case in the civil courts, including trust and probate, they are resolved by a mediation or an underlying settlement. Very few of those cases ever go all the way to trial, and the cost of proceeding in the trust and probate court is enormous. Lawyers in our field get paid a lot of money. Most of them are done per hour or they're taking a sig- very significant contingent fee. So, there's lots of motivation to file lawsuits. You just go down and see how many lawsuits are filed every petitions, we call them, every single day in the probate court. Not I don't think that's real. Leaving him $10,000 cuz you think that's going to satisfy him when your estate's worth a million, not going to make a difference.

26:23 I think it's blood in the water. I think you're really giving them an incentive to say, "I'm I'm going to give this $10,000 and yeah, no." I know also a good part of your business is mediation. You act as a mediator, right? I mean, you have as attorney, you represent your clients in cases going to mediation, but you also have cases where cases are brought to you to mediate. And I know one thing you said to me last time was that and I wrote this down that a bad settlement is often better than a good trial result.

26:50 Oh, almost always. Because you because the major cost in litigation is the trial. You're talking about many days or weeks, 7 8 10 hours a day, expert fees, all the other fees that that come along in litigation.

27:08 Discovery fees, transcripts, filing fees, notice fees. Notice when it's when it's continued for you know, the hearing's continued for 2 months and you have to re-notice everybody. The attorney shows up, he get paid you got paid for that.

27:20 Not to mention just the trauma. The emotional and physical trauma of being in trial. You're talking about being in a courtroom or private courtroom 6 8 hours a day plus preparation at night and preparation in the morning. It and emotionally being in trial is incredibly difficult for people.

27:43 And it's regular it's regularly not regularly contiguous. Meaning if you say in a day trial, at least what I've seen with clients is it's 2 days this week and then 2 days next week and then the judge is busy so the last 2 days are in June and so this trauma goes on over a period of months. Now the judge maybe can partition it and look at the facts, but to an inexperienced you know defendant or a petitioner, it's brutal emotionally to drag it out over that that period of time. That's after years of discovery and years of other hearings.

28:12 Physical trial is both physically and emotionally draining for everybody, even including lawyers. And by the way, most people don't understand this. I'm sure you do. So let's say you go through trial and let's say you get a judgment. You get a $200,000 judgment. That's really nice. It's a piece of paper. Now what do you do with that piece of paper? Because [snorts] you now have to collect the judgment and there's a whole other set of laws out there that's out of my area

28:39 [snorts] of work called collection. It's the methods and the way in which you are able to co-quote collect on that judgment

28:49 Right. and those judgment debtors, the people that owe you money, they know how to hide their money, avoid it, and it you oh it can take years if ever to collect on the judgment. So, it settlement is always a better alternative. You're you're especially if it's done early on, you're you're you're going to get an agreement, it's going to get done, it's going to get paid for, it's going to be over, so your time's not invested, your legal fees are I mean there's all of these reasons. And not the least of which is the emotional trauma of being in litigation. And I don't want to downplay that. People don't understand. Very few people enjoy being in litigation, including lawyers. But it's a it's a very draining experience.

29:35 You know, I in probate, oftentimes customers are misled to think that the probate process is likely to last about a year. And I actually had to I've actually downloaded every case since I've been doing this for 6 years. And I can say the median case, not the average, the average is even worse, but the median is 2 years from beginning to the OSC for final distribution in LA County Court over the last a 6-year period. I would love to see data on what is it from filing a civil lawsuit or a claim to receiving the check from the party who owes you money because you're right, it's years for the trial, and then it's years to collect. And I'm involved in numerous cases where we're selling real estate to do that. So, that being said, you know, there's expectations, right? The person suing thinks you're going to get paid next week, and the person who is being sued oftentimes ex- expects to never have to pay. And here you're the mediator, your job is to some degree see if there's you know, an opportunity for meeting of the minds. So, kind of give me an overview of some cases I guess just is they're determined to fight, you're going to let them fight. But when you bring them together, what happens that changes from unreal expectations to all of a sudden they're being realistic.

30:47 Well, so the mediation process is is very interesting and particularly in the world of trusts and estates. But the idea is you get to know the parties. My process, I'm sure other mediators have a different process. My process is you spend some time obviously before the mediation starts with briefs from the lawyers and documents educating yourself on who the people are, what the disputes [snorts] are, what the documents are, maybe what legal principles are appropriate for this particular case. The first thing you need to do is to meet both sides separately or multiple sides, whatever the case may be. Get to know them, introduce yourself, get to know them, what their motivations are, what their issues are. And then working with the lawyers to put together a plan that ultimately can be sold to the clients and educating them because they many times don't know anything about what we just spoke about. How long the process is going to take. The judge is not going to hand you a check at the end of the day. [laughter] When you the judge doesn't just reach over the bench and say, "Mr. Smith, here's your check for a million dollars." It doesn't happen. And clients don't know that because too many lawyers never explain any of this to their clients.

32:08 He's been given the order. You're not going to get the order maybe for days, weeks, months, who knows how long. They get the judge's decision in paper form less than the check.

32:16 Yeah, but so it's a process. Educate yourself, understand what the legal principles are, understand the factual issues before you start a mediation, introduce [snorts] yourself to the clients, give them a background experience, try to gain some trust with them. And you're meeting with them separately. You know, I don't meet with multiple parties. I meet with each party separately. So, if it's in a Zoom, we each have a separate room. If it's physically, we have separate rooms. Never the twain shall meet usually during these conferences. And you're finding out what [snorts] people's motivations are, what their concerns are, what information they may not have, what information you can share to educate them on what why there's a dispute with the other side is contending, why they're taking a particular position or not. You've got to get approval from the parties to disclose facts and circumstances to some degree. And then beginning the process of making recommendations. Now, one of the problems I will tell you is a number of the mediators, and I so some of my fellow mediators are now going to get really angry with me here, are retired judges. And that's great. They have a lot of experience. They've seen a lot. They've known a lot. The problem is you have to transition from being a judge to a mediator. A judge listens to information and makes decisions.

33:39 Mediators don't make decisions. They're facilitating the parties to come together and reach an agreement that in my cases, in my mediations, requires them to sign a written mediation settlement agreement. So, everybody knows exactly what the terms are and how it's going to be affected, whatever the settlement terms are. Judges tend to be judgy. I don't like what you're saying. Or no, you're wrong. Or that's not the law. Or let me tell you what the law is. And they have to step back from that. Using their experience is great. And there are a number of really good judge mediators who use their years of experience in dealing with clients and make it a wonderful transition in the mediation. Lawyers, some are good, some are bad, like realtors, some are good, some are bad. I thankfully I've got, you know, 85, 90% getting mediations resolved during a mediation.

34:37 Wow. it people, once you explain to them what the process is going to be if they don't settle, Right. they begin to understand the wisdom of taking $25 instead of demanding $45. You know, you take 30, maybe, or 35, or you know, 28.50, or whatever the number is. it and it takes time. You've got to develop a relationship, in my view, with the parties. You've got to have good lawyers who are being cooperative, who are being honest with you in giving you information and sharing information about the case so that you can then intelligently speak to the clients and understand their side and what their issues are. Lots of times there's an education component where you say to somebody, "No, you're not going to get into courtroom next week, and no, you're not going to get a paycheck, you know, from the judge [snorts] next week, cuz the lawyer hasn't explained that to them." or maybe they have a wrong impression. Sometimes lawyers haven't explained the law to their clients correctly

35:40 Mhm. for whatever reasons. Sometimes cuz they don't know, sometimes cuz they don't want to tell the client, you know, there are all kinds of reasons. and so it's I think there's a you need to develop a relationship and be honest and candid with the client. and also, hopefully, get the lawyers to back you into saying, "This is a good a good result, a good way to end this dispute." And we talk about the emotional I do. I talk about the emotional components of being in litigation. You want this out of your life. You don't want to be in it. You don't want to be in this answering discovery and telephone calls and paying your legal bills and whatever it is that you're doing, you want to get off doing whatever else you want to do in life, taking a trip to wherever. But you don't you know, being in the courtroom is not a fun place to be for anybody except a few of us.

36:37 Well, look, this is a great snack on the topic of mediation. And Nathan, I'd love to have you back where we go into more detail like we did on the first part on independent reviews. I they kind of relate in the sense that I feel that these are alternative approaches to just blood bludgeoning each other in court. And I feel like as a professional we want we always want to try to find what's the best solution for our customers. And sometimes it's a shorter version, we get paid less in the short run, but by helping customers in the long run we get off better. And you know, encouraging people to mediate to solve his problems is one solution. And the independent reviews is another area that I just don't think is very well discussed. And I know in all my research I feel like I know a lot about estate planning for a non-attorney. It just doesn't come up enough and I really appreciate you taking time again today going to detail with us. So if somebody has a estate plan either than an attorney and want to get the independent review done or they're a client who thinks maybe they need to have reviewed or circumstances they want to talk to about, the best way to get a hold of you I imagine is your website which is thehoffmanlawfirm.com, thehoffmanlawfirm.com. And then we also have his contact information down below. Nathan, thank you so much

37:42 Website that's specifically related to independent reviews. It's coir.attorney. If you want to look at that one, that is dedicated simply to independent reviews. So they can look at that one. yeah, just send me an email and I'll be happy to discuss it with whoever needs to learn more about the process.

38:03 Fantastic. Well, Nathan, again, thank you so much for your time. I think thank you for like educating the industry on this these two important topics, but in particular the independent review. Look forward to continuing the conversation with you going forward.

38:13 Bill, thank you for having me on your on your program today. And for the rest of you, this is Probate Weekly where we get together weekly and talk to attorneys in the probate field. Obviously in this case litigation, estate planning to avoid probate. yet we end up in to avoid probate in court and we can end up with that the independent review is one way to stay out of trouble on estate plans and mediation. So hopefully we learned a lot today with really one of the best practitioners in the business here in California and Nathan Hoffman. If I can help anyway please reach out give me a comment reply put something in the discussions on whatever social media watching this on or you can reach out to me at Bill Gross Probate on social media as always make today your best day ever. Thanks so much.