KGCI: Real Estate on Air - Nicholas van Brunt

Episode Date: November 7, 2024

Well, if you're looking to have some fun with a probate attorney, the last words before you hit though, let's go live button with our guest today was let's have some fun. I'm all for that. If you know me, when people ask me, how long is the interview? I say, well, as long as I'm enjoying it, I'll do what I assume. If I'm not enjoying it, you're not. And listeners aren't. We're excited to have here today who you might normally think of a litigation attorney in the area of probate and trust to be a little dry, a little, I don't know, by the book. But no, not at all.

Big, small, lots of fun. I really enjoy talking to him in the past. I'm really excited to have him as a guest say Nicholas Van Bratt, who is an attorney with, let me get the name right. I always feel like Groucho Marx making fun of law firms. Shepard Mullen, LLP, one of the largest firms, I think, in Los Angeles. Nicholas, thanks so much for joining us today. Sure, happy to be here. Good to see you again, Bill.

And so first off, you are, I think, Shepard Moll is one of the largest, one of the five or ten largest law firms in general in Los Angeles, let alone, probate. How long have you been with Shepard Mullen, and what was it that got you into law in the first place? Yeah, so I don't know the stats. I know we're, we definitely have one of the largest LA offices in, you know, in the city. I joined Shepherd Mullen in 2015 and I came over with Adam Streisand, who's my partner slash mentor. We were both at Loeb and Loeb. Oh, look at me.

Yeah. That's before I went on with watchers. You're looking guy in that photo, huh? What's that? You're looking guy in that photo. Yeah, yeah, exactly. It's like 30 years ago. So, yeah, so we were at Loeb and Loeb from 2006 to 2015, and then we came over to shuffle.

Loeb and Love also one of the largest firms, one of the largest offices in Los Angeles. And so really, most of the probate trainees we've had on the show to date have been either sole practitioners or much smaller firms. And I think your specialty within the field of probate, trust, trust administration, and litigation is the litigation side. And it probably takes a certain half. So let's talk about how did you end up in the litigation piece of trust in the states? So actually, when I started practicing, I worked more as a general civil litigator. I was at a third large law firm. That's where I started my career called Whiten case.

I was there for a couple of years. I worked on the Enron litigation among other sort of big ticket cases. They were super interesting, but just at the end of the day, I wanted to get into court sooner. I mean, if I'm being really frank, and I didn't know that that was going to happen for me anytime. soon where I was. And so that was one of the reasons anyway that I answered a recruiter reviewing documents. And so that's, and the recruiter was like, hey, you know, Loeb and Loeb has this trust and estate litigation practice. I'm like, oh, dead people. That sounds horrible. I don't mean to be able to that. But, you know, I went in the interview anyway and I met with Adam and

another partner that David Nelson, who's still a friend, and was intrigued. And then I know with more people and figured, oh, this is a good way to finish paying off my loans and I'll get into court sooner. And I ended up loving it, you know, so probate litigation while you're dealing with the probate code and you're dealing with a specific set of cases that, that, you know, are the controlling authority in those matters. It's still civil litigation, right? It's still depositions.

It's still going to trial. It's still discovery. It's still, you know, arguing over motions in courts. A lot of that stuff. but the stories are so much more personal to people, you know, than your average commercial litigation matter, for example. One of the things I think that real estate agents don't understand when they refer a case to an attorney is the importance of specialization. Now, my father was an attorney, but in the old days when you're more of a generalist and that's all you really needed, kind of like doctors. Now everything's more specialized.

And to date, as I've interviewed probate attorneys, I've noticed there's two skills they have to master. There's the technical probate side or the estate playing side and the soft skills of communication. In your case, you have to add in the third, which would be the civil litigation piece, right? You can't be great at probate and not really do well at the civil litigation. You're going to get wiped out. You can't just do civil litigation, not into the probate code, or you're going to get wiped out as well. So how do you balance those two, and then third with some sort of personal skills with your clients and the emotions that go along with that? Yeah, I mean, that's a really interesting question.

So, first of all, in terms of just how you, you know, bring the civil litigator, you know, hat to also having those soft skills, I mean, any civil litigator has to do that to some extent, to be honest with you, because even if it's commercial litigation, it's still really important to your client, and you still need to know how to communicate and be an advisor to your client. then be an advocate in the courtroom. And sometimes what you're saying to your client under attorney-client privilege is going to be different than what you're saying in the courtroom when you're making an argument on their behalf, right? You're not going to put the worst facts that you're aware of that may not have been disclosed yet or, you know, you're going to put the best light,

truthfully, of course, but like you're going to put the best life on things in court. So you have to, no matter what, you have to separate that. I think when it comes to probate, you know, specifically And, you know, I imagine this is the case in family law, you know, divorce proceedings to some extent as well. You just have to understand that the, you know, the people you're representing and also the people on the other side, oftentimes are going through one of the roughest emotional periods of their lives, right? They've either lost a loved one or the loved one is still alive, but has lost their capacity, you know, or, you know, similar situations like that. I mean, they're just, they're not, they're not their best selves. And so you have to be, you have to try to be empathic. You have to be honest. You have to, you know, you got to be truthful with them about what, you know, what the best and worst case scenarios are for them and all of that. But you just have to like, that's golden rule, I guess, you know, treat others how you would want to be treated in that situation. So you just have to have that in mind. And, you know, we all succeed and fail to that to that to like some degree that it is something I try to keep in mind. And imagine that's why you're, with a larger firm and that you probably have team members that you can assign different tasks.

So one probably is in charge to client. One's probably more involved with the other attorney or the judge or, you know, paperwork or something like that. There's ways you can divide up but necessary to focus on the best skills and the best process. Yeah. Yeah. No, I think, I mean, it gets case by case. Obviously, if you have a larger case, there's one, you know, sort of or two attorneys that's

maybe going to mean the client facing attorney. But it really depends. And it's actually really important, at least I think in our practice, to have attorneys who are versatile in that respect. So I personally want an associate who's working with me on a case to be able to be client-facing, to be able to feel comfortable, you know, talking with the client to be a human being with them,

as well as having the nuts and bolts experience and training them in that respect. So it's, yeah, I don't know that we have like, you know, It's not like a football team where it's like, you know, your guard is doing one thing and your running backs doing something else. And it's a quarterback. I mean, usually I'm the quarterback in my cases, right? But you want people who are able to step into that role, you know, because also we get busy, right? So sometimes I'm in trial and I need to know that the people I'm working with can step in.

And the clients are going to trust them. And they earn that, you know, through experience and time. One of the question I have, and I don't know you can answer it precisely, but just I mentioned your flavor, this is, you know, as a real estate agent, I get involved with a family or a family member, and they begin the filing process, they begin what looks like in administration, and all of a sudden somebody makes a phone call, somebody sends an email, next thing you know, there's objection filed, and the next thing you know, it's like full-scale warfare with an attorney, and it goes from, you know, a disaffected error to litigation,

sometimes pretty quickly, and that can just change the whole process. And I think the client often doesn't understand that the attorney you pick to do the administration up front may not be the right attorney to get you through. Do you have any kind of insight on where that tripwire spot is or what clues to look for or what somebody should be thinking about when they see those kind of clues that there's a storm brewing in it? We may not have the right ship to get through it. I mean, as soon as someone raises an issue with the transaction, right, and objects,

or as soon as that happens, you should ask the lawyer that's representing you, hey, if this gets to litigation, are you in a position to handle that? A lot of times, a good probate administration attorney will, when they get that email, will say, hey, I'm not a litigator. You know, here's a litigator I work with a lot. You know, something like that. So, but if they don't do that, then you should ask the question sooner rather than later. Because you just want to know, maybe there are some really good lawyers that can do both.

out there they exist you know there are and I've interviewed some and it's interesting how some will say no I'll never litigate or no I only litigate there's that group right there's another group that I've worked with that are good at both and then there's another group that are only good or maybe average administration and will hang on to the litigation and I'm trying to say the client this person is not going to get you there this is not the right attorney for this fight and I'm always looking for ways to help them understand what what they might be You don't know. You don't know how the objector, you know, how to the mat they're willing to go. But, you know, as an observer, oftentimes I say, this attorney is not asking the right

questions. He's not, he's not preparing for war, not to say you go to war and drop bombs, but you need to start preparing for war, I think, at some point, right? Oh, for sure. Yeah. But I mean, I think that's, in terms of like the inflection point, I found that it's not the term you exactly used, but that, you know, when you should start to ask that question, it's as soon as there is some sense of somebody's going to come in and object to this in probate court. You know, as soon as that's a possibility, you want to make sure you have your ducks in the route, for sure.

So in your case, again, you're a larger firm. What's kind of the typical size of a state that you're involved in litigation? Because there's obviously, even on modest estate's tremendous costs to litigation. I tell customers as a rule of thumb, you know, somebody's had to pay $100. $200,000, if it's going to go to hearings with discovery and objections, you need to be prepared to not write of money, you know, and then have to give up at some point halfway through that. And that's even what I would call fairly modest estates. What kind of, what's a typical, and I don't mean to give way any, you know,

secrets, but what's a typical range of an estate that you deal with that you're doing with litigation at a firm of hearings? So I've dealt with, and there are various business reasons why, okay, that maybe I'm won't get into, but there have been cases that have been the states that are five million or sometimes less, you know, if it makes sense for other reasons, all the way to states that, you know, or the nine figures are a billion, you know, I mean, it's, it's a wide range. Obviously, we're not, we're not the 99 cents store, you know, so, I mean, it doesn't make sense. And there's so many really good sole practitioners out there or less expensive attorneys

where I will, if it really doesn't cost effective, then I'll be happy to refer to. But, you know, yeah, we do a wide range. You know, so that, but I would say that there's no particular sweet spot, you know. It just, it depends on a case-by-case basis whether we're going to be cost-effective for it. Okay, so let's talk a bit about, oh, I got a question here. Ann B, thanks for the question. You had a state planning attorney say he's not insured for litigation. Yeah. I wouldn't use that attorney for litigation, then. Well, again, I think the point is there are some attorneys who know they can't do it. And I respect that. Whatever your reason is, know your limitations and get somebody you can. And we've had some great attorneys on here who do

litigate, you being one of them now and some of the others in the past. And I only anything wrong with that if you know that. What you don't want is the one who thinks he's, she can't, or she can, and they're going to litigate, and I watch it all the time, and they're just getting wiped out left and right, and drags out for years. And this flip side is also true, right? So I don't personally do much trust administration. I mean, I will get involved in what's called, I would say, like, adverse trust administration where it's not quite litigation, but you're trying to resolve, you know, a problem that's

got an adversarial interest. And I'll certainly get involved in that because I do, like, problem solving more than anything else, but if, you know, if it's a full-on trust administration matter, then, you know, yeah, I mean, I'm not going to handle that myself. Now, we have a lot of attorneys who do do that at our firm, and so that's more fortunate, so I can pass it off. And even small firms often are structured that way, right, where there'll be somebody who handles trust administration, somebody who handles more in the litigation matters.

You know you see a lot of that as well. Yeah, and the ones that don't, independent, they'll typically have a favorite attorney that does their litigation. they work together well. And I think that a handoff is better. And so in a case like yours with a firm, I imagine you're regularly either gaining referrals from your administration department for litigation

or you're in litigation and they have a family member that needs administration that you're sending back and that the handoff is part of the value proposition that the same firm's handling our items, they have the file, there's some confidentiality advantages, so that's part of the things that make sense there.

So again, and now again, again, I want to get to, I don't want to compare to Amazon, or to Zillow, but can you give me a range of what it costs to get into litigation? I think that some attorneys, you know, they went all cash. Other ones will do it on contingency, but they need a certain amount of estate at issue. Is there, how do you advise somebody comes to you with a problem of a $5 million, let's say a state, how do you advise them on what's going to cost them and both upfront and over time?

This is going to be a very unsatisfying answer, but it's very case-by-case, right? So you could have a lot of different issues with a $5 million estate. It could be a contest over whether grandma had capacity or not to sign her estate plan. And you were a 50% beneficiary under one instrument and then you're cut out of the next one. So that's worth $2.5 million to you. I mean, there may be other issues too, but let's just make it really simple. That may be worth $2.5 million to you. Well, how much is it going to cost?

Well, let's see. You're going to have to get a medical expert. you're going to have to take depositions of maybe caregivers, doctors, maybe the accountant. So maybe you're going to have to take 10 depositions in the case. You have to do written discovery. We're going to have to depose the opposing expert. And you have to say, okay, this is how many hours this is all going to take. This is how much we think this is going to cost.

If you take it to trial, this is how much we think it will cost if you settle before trial. You know, you try to lay that out if you can. It's really hard to predict litigation, but it's going to be six figures, almost certainly, right? And then you have to, it's a value proposition. Some firms obviously do do contingency in this space. Do you have to be a little careful about that? There are some people that will, well, I'll give one example without attribution. Somebody was already a beneficiary, let's say, of a, say, $50 million trust.

And somebody said, hey, you should have control of that trust. I'm going to come in and help you get control and I'm just going to take, you know, 25% contingency. Yeah, there's no reason that that person needs to take $12,000,000, right? So, I mean, I mean, just, so you have to be careful with that. But there are people who will do contingency, and it's absolutely appropriate in some cases to do that. A lot of firms won't. We typically don't.

I'm not saying we've never done it, but it's pretty rare. But, you know, usually it's by the, hour and then so it's like okay here's our billable rate here's the amount of hours we think it'll take you know that that's kind of our right and so yeah the most common area friction on that discussion is people don't appreciate how expensive litigation how expensive law is and it's not just the lawyers getting paid it's even if you take that out they have no idea the expense for you to get services done whether it be paralegal services or transcripts or discovery or filing motion and things like that, it's just incredible.

And I know that for those listening, you know, it sounds, oh, gee, he's not actually a question. He's saying case by case. You're talking about an experienced litigator who's going to give you an assessment of the time involved in it. I think that's the part that we as professionals have to understand and prepare our customers for. It is very difficult to assess.

And I'm sure, Nick, sometimes you make mistakes. You underestimate or overestimate a case and look back on it. And the challenge is being accurate in that, right? I'm actually perfect. Of course, of course everybody does. But, you know, and there's too much uncertainty to really to completely project. I will say that actually one of the issues that comes up,

it's not just the cost. Obviously, the cost is, you know, can be eye-popping. Eye-popping. Eye-popping. Yeah, like remember who framed Roger Rabbit, like in his eyes? Wow! But also there's the, how do I put this? It's litigation takes a long time, right?

Like you don't, the courts are really backed up. And it can sometimes, I have a case where a motion was filed and was set for December. Okay. Like, it was filed last month or whatever. And that's not bad. That's not really bad. I mean, that's. It's not, it's not bad.

I've seen worse. I've seen worse. But then the trial doesn't get set. You know, your trial gets set two or three years after you initially. started the filing before you actually get the trial, right? And that's not uncommon. Now, there are some cases where you have priority, like a conservatorship theoretically, should be sooner. There are cases where you're entitled to preference because somebody's older or whatever. But even then, it takes a long time and it's frustrating. And then hearings get continued because somebody's, you know,

get sick or somebody's on vacation or the judge is dark this week or whatever, you know. And it's really frustrating because here you are spending all this money. just trying to get justice or to, you know, defend yourself against claims or whatever. And it gets kicked out three months for something completely outside of your control. And it's really frustrating to clients. And I empathize with that a lot. It's also frustrating for us. You know, if you want to move things along, believe it or not, like, my goal when I get a case is to try to get it done as economically and efficiently as possible as possible.

But you only have so much control over that. The common denominator I find of litigators, successful litigators, is there tough? because you deal with constant frustration, constant delay, constant challenges. And so, okay, a couple quick questions you have in the chat box to thank you. Matthew Price is a regular and her call. He had litigation attorney claimed to be an estate attorney and did no simple property ownership law. Now, Matthew's out of state. I think he's a North Carolina member, but those principles are the same, which is if you're going to do a state planning,

whether you're litigating it or doing steps, they need to cross over to other fields. right like real estate law family law imagine i notice in your bio that you kind of have some crossovers as a result of your litigation experience correct right yeah of course um yeah my head would heard it in that one too i mean you need to have i mean i don't know what the basic property ownership issue was but um yeah i mean you would expect that an estate attorney would have some some basic understanding of real estate law yeah you know now you might not expect them to be sophisticated real estate transactional person or to really be the person who's going to review a lease and understand all the conventions of that, but they should have a working knowledge for sure.

Well, and I would think that would be the advantage of working at a large firm like yours in that you may not have that expertise, but you can either walk down the hallway physically or virtually and get a partner or a colleague that's on the same team and shortcuts that whole process to get some help, I would think, or bring them in if you need to bring them in. That's, yeah, that's definitely an advantage that we have, obviously. And then, but, you know, also for a sole practitioner, I mean, they should know somebody. It's really important to know what you don't know and to be able to, you know, and to be okay and let your ego say, hey, I don't know the answer to that, but this, I know this person who does.

Right. Because that's more valuable than pretending to know something that you don't know. So in the sense, though your head hurt, if, you know, at least if he said, hey, I don't know simple property ownership law, that, well, that might be disappointing, better than if he tries to or she tries to, to, you know, represent that they don't, that they know something they don't. And to your point, the good litigators, I know they're at smaller firms, they're really networkers. That's probably why, because they need to bring in people in those specialties as well. So, and then that Taylor Group, Ebby, Holiday, realtors.

Thanks. First time watching. Curious how I got stars a realtor. Does this Clans go through probate? You know, that's a great question offline. We're not going to, at the hourly rate of paying Nicholas for this call today. This is a really good question for Bill Gross, if you want to ask. Yeah, Bill Goh.

Yeah, I'm perfectly glad. Down below is my contact info, you know, call text or email me. I'd be glad to be sharing with you. And the last week's episode was free resources to build your probate business. I mean, that's a good place to start as well. So a couple questions more on litigation. What is the most commonly litigated issue or item or challenge that you are involved with? If you're to look back macro and say, this seems to be the largest or a couple largest issues.

We're the ones that the main issue that seems to be going on. So the main issues is a couple. One is I've already referenced, which is the validity of an estate planning instrument, whether a will or a trust or something like that. Whether the person who wrote it had the capacity to do it, whether they were unduly influenced in it, whether they're defrauded into doing it, that would be one bucket. The other sort of major bucket is fiduciary litigation,

where somebody is a trustee or an executor, has accused them of entering into transactions they shouldn't know over stealing money or what have you and so that that's that's sort of the second main bucket and then the third one that's really happened more and more and it hasn't really decreased to be honest with you since britain spears is conservatorship litigation you know some litigation over who's going to take care of so-and-so their lack of ability to manage their affairs i'd say those are three main five so just a recap capacity of of the instrument, the fiduciary is doing things properly or to the standards of the person. And the third, you're saying, is conservatorships?

I would say so, yeah. I mean, I'd say in terms of what's occupying my time, those are the three. So let's go back a little bit because we as realtors are kind of the same space a little bit as far as the ability to sign a contract. And I've had the experience of going to a house where I talked to somebody. And maybe in the morning, they called me up and they sounded bright and alert and ready to go. And then you're there in the afternoon. and they're just a little slow.

Things seem odd. Things are piled up around the house. It was all too easy to get the contract sign. So if you were to give, I mean, I know this isn't your legal advice, but you do see the litigation surrounding this. What are some best practices for somebody who's talking to an elderly person to avoid or the warning signs maybe you see people ignore or run through? Yeah, I mean, that's a really good question.

You know, so it's not that you have a duty to be a doctor. Like you don't have a duty to say, hmm, does this person have the legal capacity to enter into something? But, and just because somebody does sign a document that maybe they shouldn't have, and it ends up in litigation doesn't necessarily mean you did anything wrong because maybe you didn't know, right? But people, if you have a sly sense, right, and you're like, hmm, this, this feels weird, slow down. You know, maybe say, hey, do you have an attorney? Hey, you know, I want to have somebody else, you know, look at this or maybe we can schedule this for another time if somebody seems, you know, if they're elderly.

Because what you don't want to do is, I mean, at least in California, and I know that this isn't just a California stream. But East California, I mean, the laws around financial elder abuse are pretty strong. And so, you know, if you incur any sort of benefit by taking advantage of an elder, not only can you be liable for that, but you can be liable for the attorney's fees, you know, if you lose. And it's, and you can be liable for punitive damages potentially. So the risks are big. So if you're having misgivings, no transaction is worth it. No transaction is worth it. Even if you're going to win that case, no transaction is worth being sued, worth being deposed,

even if you're not the party and you're just kind of involved. It's just not worth it. So, I mean, that's kind of my thought is just or at least talk to an attorney, just hit the pause button. One of the challenges of that is, and I'm sure you see the same thing, that, you know, I get called out to talk to somebody who maybe is elderly, maybe with one of the siblings, maybe the good sibling or the bad sibling. And then the other one calls you and tells you, no, that was the bad sibling. I'm the good sibling.

And, you know, I feel like on one hand, you know, my business is active enough where I want to just say, just run away from it. On the other hand, sometimes I would say, well, I want to help protect this person from the bad sibling. I don't want to make my life's work about it. I don't want my entire financial net worth on the line financially over it. But I do want to be an advocate for somebody who might. be the victim of elder abuse. So, you know, again, what would you, you know, I'm sure every case is

specific, you know, specific. In a general sense, is that something where, is it ever worth getting advice and, you know, back yourself up, or is it just better to run and not be involved at all, do you think? Depends on the situation, obviously. But, yeah, I mean, I would, I would contact an attorney, you know, in that situation. Because, yeah, you don't, I mean, I mean, I, Look, I'm a lawyer. Therefore, I'm risk-averse by nature. Most lawyers are. I'm less risk-averse than some, but I'm still pretty risk-averse. And, you know, I can tell you that my regrets over the cases that I didn't take and that I see ended up making a lot of money are not as big as my regrets over the very few, but the cases that I've taken that I wish I hadn't taken, right? Yeah. And so to me, it's that's just, that's my risk tolerance and sort of my, you know,

sort of way that that helps me, you know, sleep at night. But, but, but yeah, I mean, look, again, if you trust your common sense. If something feels weird, talk to somebody, talk to, talk to, talk to a lawyer, say, hey, this looks, you know, and it depends on the situation and the state you're in, but there may be, you know, there may be something you can do. Maybe, you know, if you're really worried that someone's being subjected to elder abuse, maybe it's called Adult Protective Services. You know, I mean, there's things you can do in those situations, but I would get

advice. You know, you don't want to just go running hogwop, talk to a lawyer that you trust in that situation. And it's difficult. I was in what, I was in such a case where clearly the father was affected by the bad child. It was obvious to me that the deal he got into was bad,

benefiting the bad child, the good child was overwhelmed because she went to an attorney, the attorney was overwhelmed, the wrong attorney. They'd spent time in money in litigation, and she was just ready to her hands. I think sometimes as a real estate agent, some of those cases you have to walk away from, and there's not much we can do other than I think educate people and my goal is to get every customer can into an estate plan and into an appropriate plan to at least minimize those risks. Before we go to that topic, though, I'm going to finish up on the litigation. You mentioned

the second area was fiduciaries, and as realtors, we get this a lot, right? Dad passed. My brother is the successor trustee and he's not sharing information with me or, you know, he wants to sell and I don't want to sell or he doesn't want to sell and he doesn't want to sell. So what are the common issues you see in the fiduciary that are preventable that somebody can plan ahead for when they do their plans so they don't find wind themselves up in that situation? That's, I mean, so, you know, one of the, so are you talking from the fiduciary's perspective or from the perspective of the real juror? I don't know fully understand that.

Sure. Well, I think that the customer calls me and says, you know, it's too late. My brother's the bad guy and he's the successor to trustee, and he's not sharing any information with you. So I guess it will be more specific. What are the responsibilities of sharing information when you're an administrator with the people who had naturally seen to be errors? That's California law and it's different in every state.

But what are the responsibilities? I'm sure as a litigator, if they're not doing those things, you're using those things to invalidate them, remove them, suspend them and such. So what are the requirements of a fiduciary in order to do the job by keeping all the other errors or expected errors informed of the process? Yeah, great, great question. So in California, which is what I can speak to, there's a duty to keep beneficiaries reasonably informed, right? What does that mean? Well, it means if there's a reasonable request for information, you're supposed to provide it. And if you don't provide it, it's not provided within 60 days, then you can get a court and you get them to provide it. Usually, there's also a requirement that accounting be provided, at least on an annual basis for the trust.

Now, sometimes the trust document, which is kind of like the constitution of a trust, right? It's a living, breathing document, but it'll say, I waive, you know, I waive any account. Well, that doesn't mean you're not supposed to give any information. That's against California public policy. There's still some information that needs to be provided. If that information is not being provided, again, talk to a lawyer, you know, because you're, as a beneficiary, you're entitled, certainly in California, and it's different in some other states, the extent to which is true, but I don't think there's any state unless it's a very

specific type of trust where you're not entitled to any information about what's going on. So and as on the flip side, if you're, if you're a trustee, so if you're like a trustee or an executor who's retaining bill to sell property, you're always better off in the eyes of the court and just, you know, generally, if somebody asks you for information who's entitled to it, you should provide them that information. You know, you don't want to provide like attorney client communications and stuff like that, you know, unless there's a reason for it. But, like, you should provide the information that's being requested

if it's reasonably related to their interest in the trust. So, do you plan to sell the house? Yeah, right. Are you evicting the tenant who might be in there or those kinds of things? Now, there could be, look, there's always exceptions, right? So there's, let's say the beneficiary happens to be the tenant in the house, who you're planning on evictory and who is causing damage to the other beneficiaries because they're not paying rent.

Common case. Maybe you don't need to, you still have duties to that beneficiary, by the way, and maybe before you file eviction proceedings, you know, negotiation or something like that. But, but, you know, or if you know that a beneficiary is stolen from the trust, you know, yes. I mean, again, that's something where you want a lawyer involved, but you don't. So there's some common sense involved in that, but generally speaking, just for somebody who's, just entitled to receive their portion of moms, you know, estate. Just tell them what's going on, keep them reasonably informed.

And by the way, and I saw somebody, somebody that there's an article that's coming out in the trust and estate quarterly, which I know you're all subscribers too for California. But it's an article that I know it's coming out. What somebody does is they really, literally, this is a good tip of the trade, they create a binder that just like keeps a law of what they've done, what they've informed the trustee, you know, the beneficiaries of, etc. and the more sort of competent and organized you are and transparent you are, the better.

The most common case I get is a sibling, mom and dad passed. There's two, three, four siblings. And the one sibling in the parental home is the successor trustee. He doesn't want to sell the property because he's living there for free. If he sells that gets split three or four ways, but he's living there for free, getting all the benefit. To me, it almost seems like you're stealing from the estate by not. managing it in a proper and timely manner and that I always recommend them to go to an attorney

to kind of force the issue that they'll need to do something. Is that a reasonable standard? Yeah, it is. And now keep in mind, the trust may say, hey, my trustee gets to live in the house. Right. That's what I want. Ultimately, it's not a matter what the beneficiaries want at that case, right? I mean, in reason. It's what the person who established the trust said. But they would, they would have to disclose the trust that, document that. So it's not like they can just say that. They have to provide to the beneficiary.

This is the, you're entitled to accord the property subject to my living here for a life estate or something like that. So any beneficiary in California, at least, and I think this is the case in various forms in other states, is entitled to a copy of the terms of the trust. First of all, they're supposed to get a notice within 60 days of somebody dying that a trust has become a radical. meaning it can't be changed and that they have 120 days to contest it and they're entitled to get a copy of the terms of the trust and any beneficiary is supposed to get that notice an error any error even if they're not a beneficiary so the difference between an error and a beneficiary is that a beneficiary is somebody

who actually concretely get something under a trust or a will and air is somebody who would be the descendant if there was no will if It's very, you know, through a test to see. So that's important thing, remember. Now, that in and of itself failure to notify in 60 days, in itself isn't grounds for removal, but it would be one step to say, hey, you're not, you started off their bad foot,

and then you didn't do this, and then you didn't do that, and you're building a case to perhaps remove them as the administrator in favor of some neutral person or other family member to do the job. Totally, and it depends on the facts, right? If it's just like, if it's a family member who's like unsophisticated and just didn't know they're supposed to send out the notice, that's like one thing, right? And if they say, oh, I'm so sorry, here's a copy of the trust. Probably not going to be a big deal.

If, in fact, they're, you know, sophisticated and they just don't do it or they're asked to do and they refuse to do it. Believe me, I've seen plenty of cases where, like, there's just a refusal to provide any information. Right. The front end, like even a copy of the trust. Yeah, I mean, you're really starting a bad foot there. Yeah. Okay, back to questions. I think you might know this one from Scotty G. Funk.

Hi, Nick, from your experience, once a trustee or PR is suspended and interim neutral is appointed, how often does that suspended PR reinstated, or does that neutral usually remain in place? And now I'm wondering which Scott this is, because I have a case against a Scott right now with that exact fact pattern, so I'm going to avoid that question. Okay. And then answered by Matthew Price, again, who's in another state of North Carolina, and he's saying once somebody's been suspended, they're no longer come back. And I will say, not legal opinion, but my experience watching court cases, I used to go to court every day pre-COVID,

that the judge, if they remove the person from being the trustee or administrator, if they go to that process, there's enough there. They're not going to like the person. They're just not likely to approve them to come back. I don't, there's a difference between that and a temporary or special administrator right sometimes they can't agree and the and while the fighting the judge will allow a special administrator for like let's say selling one piece of property or selling a business but my experience on a human level once the judge remove somebody they're not likely to put them back unless they're forced to i just don't see that happening well yeah i mean if they're actually fully removed although i'll tell you back to scotty gfunx question um as i can say um absolutely it can be the case where

someone suspended but not removed. There's a resolution with the family and they're reinstated. Yeah, yeah, yeah, yeah. Yeah, I guess suspended versus they're removed. I mean, actually, in case they've been removed because the fact pattern was they were, they were misbehaving. That's a different level. For the judge to do that, that's a big deal.

Judge is not going to be happy and likely to prove something. I get the sense, again, not legally, but just watching the judge's decisions and and discussions that they feel almost personally responsible for the administration of each of these cases. I think, I don't think clients and families understand that they take it very, they're all very seriously. When they're approving somebody, it's almost like they're appointing somebody on their behalf to sign checks and the person that's due the job right, they're upset. I mean, they, I honestly take a personal.

That's not professional, but it's almost as if they take a personal. Sure. Okay. And then that tripped off a whole ongoing description. discretion. I miss race play dirty. Yes, some do. And, um, okay, so Matthew asked another question, which again, I think that's a North Carolina specific term. Tenants by entity to tenants in common. I don't think we have tenants by entity, do we? Tenets by the entirety. If we do, I haven't seen it in college. I do remember it from law school because I went to law school back in, uh, in D.C.

So, um, yeah, you know, um, I don't want to make your head heard, Matthew, President. I don't know the answer that off the top of my head. Matthew, great question to put in Probate Weekly's Facebook group because we do have a attorney around the country. And I would start off North Carolina legal question if you want the answer on that one and also on the probate mastery group as well. Those are two good spots to put those kinds of questions. Okay. So let's talk a bit about conservations because it seems to me, number one, it's in the news, having gone to Stanley Moss court in the past about every three or four months,

there was the regular Britney Spears hearing with the attendant, paparazzi demonstrations, parade. I mean, you call all that. On one hand, you know, it's sad, the whole story and what's going on. I don't think people really understand. It should be difficult for the state to take away somebody's rights. That's not to say that she should be left to kill herself or damage herself or her kids. I'm not saying that, but I'm just saying the bar should be high in order to remove somebody's

somebody's rights. But we're seeing this more and more. I think as Americans live longer physically, but we see more and more mental declines. And I've had that my family. So, and part of the problem is even recently, I don't think this was your case. Famously, Jay Leno went to court where his wife, I think, is in a conservatorship, right? And you would think he would have access to the finest legal help in the world, I mean, being wealthy and successful. And even he ends up going to court, in essence, to point a court conservatorship. So somebody, somewhere along the line did plan for something, right? And I'm going to call him out.

These are complicated issues. But what are steps that we should be taking to avoid those difficult steps later? Because there's never a pleasant conservorship matter, right? No, there really isn't. Some more than others, but or some less unpleasant than others, that are we to put it. And by the way, so conservatorship in California, in a lot of states, I think in North Carolina,

for example, I'm not sure. I think it's called a guardianship. And here, a guardianship is for minors. So when I'm talking about a conservatorship, this is about for an adult, you know, a protective proceeding. One of the things you can do, I mean, this is relatively basic. Set up a power of attorney that's springing ahead of time. This is not foolproof, okay? But what I mean by springing is it only comes into play if two doctors sign off and say that someone doesn't have capacity anymore.

Then you have a trusted individual, you know, as long as the power of attorney is properly done with somebody's capacity, that can just take over things to help out without having to run the court, right? So that, and you have a lot more control over your own destiny in that respect. And you can do the same thing with health care powers in what's called an advanced health care directive in California or medical power of attorney. So that's one way. It's just to sort of set it out ahead of time. You know, separately, California now has, and I think this is modeled in what Texas also has something called supportive decision making. This is an emerging area in the law where somebody gets put in place to help somebody make decisions, but without taking away their right. So it's like, hey, this person really needs help. And it sort of sets a list of standards. and rules associated with that. That's a whole emerging area of the law. That's another thing you can do short of that. It's like, hey, this person really needs help.

If somebody really is a drug problem, right? So, you know, and you want to avoid having them, you know, committed, you know, or put into conservatorship. We have what are called the care courts now in California. And they're somewhat controversial, but basically somebody can come in and help someone that's an extremist, right, for a limited period of time with judicial oversight in a way that, yeah, you're still in court, but it's not the same sorts of rights that are being taken away from someone in a conservatorship. And then even in a conservatorship, not all conservatorships are the

same. The court is really duty-bound, and this was part of the problem, I think, in Brandy, is that not all, there are certain powers that a conservate can still have, right? And just because they may not be able to figure out how to balance a checkbook doesn't mean that they can't dress themselves or decide, you know, where to live or stuff like that. You know, so there's different powers that that can be given or taken away if there's no other choice and you have to go to court. I always think a conservatorship is something of last resort. Yeah, you know, they're necessary sometimes, but it's last resort.

having sat in court, you know, with clients and conservative cases, it's just heartbreaking. The process and the accounting and then the, all the attorney's fees. I mean, I just don't know any of the word than just a heartbreaking process that people go through. And I think you're right about syncope ahead of time, powers attorney, and various other medical directives. I had a case where a client, they lived his husband and wife for 30 years because the wife had divorced and had a settlement, so she didn't want to remarry to avoid spousal support. Comes to be, she's in the hospital and her kind of quasi-husband,

there's an insurance issue. Well, because he wasn't the husband, he didn't have access to bank records to verify insurance payments, so they're not honoring their coverage. They're not giving me the medical care. Here she's in the hospital suffering, whereas if she had had the power of attorney for him, he'd be able to get those records. And I think one of the things I've seen in my lifetime is all these financial steps are getting harder and harder for those of us alive and well, all the more so for somebody's incapacitated. And so I think this bodes well for your business in the future of litigation.

But those of us who aren't need to prepare now because it's not going to get easy. The banks are not going to get more customer service oriented. The insurance companies aren't going to get friendly or they're not going to get more generous. The hospitals are not going to be more lenient in their policies, all the opposite. And so all the more reasons to. So your basic business is not doing estate plans. You have a trade your firm that do. I'm saying you want a daily basis.

That's not what you do. But you must at a cocktail party or at a family picnic or something have some cousin, nephew who's laughing and saying, oh, what to waste time, all that paperwork. And I'm sure there are a couple of ones just take them by the neck and scream at them. Or maybe it's a child, a daughter, or a son. What do you say to people who take the advanced? planning too lightly. And if you care about them, what do you say to them to help encourage them to take the

proper steps ahead of times? If you don't want someone like me making a lot of money off of your estate, take care of stuff ahead of time. But I like you. Maybe I'm all nicer than that. But I mean, that's one of the message. I come from a family where there's a couple other lawyers. So that doesn't happen.

I do get a lot of questions, you know, of course. you know, about planning stuff. But yeah, I mean, yeah, I mean, it's, yeah, if people don't do it because they don't want to confront their mortality, and I totally understand that, or they don't want to pay a lawyer. I had a client, a longtime client, who his email is his name at pay the $2.com. And his point is, if you want some of the $1,000, he's a client. done right pay the two dollars you know so that you you don't pay 200,000 later or your state doesn't pay it later you know so yeah I mean that's the main point I mean and also if you don't

do the planning then you don't get to control what happens with your stuff when you die the state's going to decide the state's going to decide that your three kids get everything equally or that your spouse gets all the community property and then there's going to be you know a probate proceeding and somebody's going to, it's just you're delaying a problem. And yes, your beneficiaries will benefit the worldly possessions, but they will also inherit the headaches that could have been avoided with good planning. I tell people, if you have a plan following your own, prepared ahead of time, the state of California has it for you.

It kind of looks like the DMV is just not as customer service oriented as a DMV. It's not as pleasant as getting your driver's license to renew. in person. That's a great way to put my values that one. Ann B asks, I believe Wilson is supposed to be filed with the court. And again, let's assume a California case. Are family members able to request a copy from the court because the PR has not informed them of any inheritance or not?

So this would be on a probate matter separate from a trust. Well, so if it's a probate matter in California, at least, they have to give notice to all the, you know, at least all the errors of law. So you have to get notice of the probate and you're in type of get a copy, you know, the will through that proceeding. You know, now there could be a situation where a will is just to pour over will into a trust, for example. and then there will be a probate process, and all the will is going to say is everything goes to, you know, so-and-so's trust.

And then we go back to what I was talking about earlier where there is a duty of the trustee to send out that notice within 60 days saying, hey, you're entitled to a copy of the trust. So long and the short of it, you should get, you should be informed one way or the other. wills are supposed to be followed with the court whether or not they are you can just get them from the court

probably depends on the jurisdiction and I'm sure for in California not I will say just for example yesterday somebody called me from San Mateo which is famously late in their procedures way worse in L.A. County but the attorney had filed the will

it is online and I was able to download a copy and send it to team members so feel free if I can help Anne reach out if there's a particular case. I'd be glad to help you with that. So two questions, true or false. Now, I'm not going to hold you this. It's on the internet, but we can blur this part out if you need be.

90% of the time, a bad estate plan is better than no estate plan at all. 90% of the time. False. Okay. Because a bad estate plan can lead to a lot more litigation than no estate plan sometimes. Okay. So therefore, should somebody be very, the reason why I say that, just, just, I know that's not the answer you're looking for, but that's the one of the public. No, no, no, no, I'm glad to get it because I'd be a little more cautious now and reflect on that.

The reason why there's a business side and the legal side. The legal side is, okay, obviously, you know the answer. I don't. The business side is I always feel like, well, at least they start with a plan and it's bad, then go take that to a proper attorney and get one redone it. But now at least you've made some progress and you're moving, versus having nothing, you're going to go to probate court. It's going to be litigated. And there's no way out. But from a business standpoint, but I hear what you're saying, which is. Yeah, different questions.

I think it's so there's a difference between a basic or, you know, yeah, basic estate plan and a bad estate plan. When I hear bad estate plan, I hear an estate plan that caused a lot of tax problems or an estate plan that doesn't really effectuate what the person wanted or that that, that contains ambiguities in it that people are going to fight over. I mean, that is going to lead to more headaches than the DMV sort of, you know, boilerplate rules. If you have a basic estate plan that may not be, you know, have all the bells and whistles, but says, you know, I mean, if you go on legal Zoom, frankly, okay, you just say,

here are my, you know, heirs, here's what I want them to have, blah, blah, law, you know, there's a whole form you go through. That is better than nothing, 90% of the time at least. And to take that to a proper trade, get when done, and if it takes you a year or two, that's fine, but you have something, I'm sure you see this. I see all the time clients who pass where they have an estate plan and process. Very detailed, you know, excellent, well-fited. It's not executed or funded.

Sign that placeholder will, for sure. I mean, have that placeholder document so that even if you're, if you're doing something and you want to go back and forth and whatever, but you have something in place. That is true. 90% of the time that at least is better. And then the second question is, I think this is the biggest misconception,

which is if you have a trust, you avoid litigation. Well, by definition, that's not true because I agree with a job. Well, part of a job. You do also probate litigation and other things. But so I don't know what the source of that litigation. And that is. In fact, I almost say the opposite that any time you have large assets, you're really a bullseye for litigation of some sort. You just, the question is, how do you

protect yourself or your family or your estate, right? Right. Yeah, I'll never forget. One of the first cases I had when I started doing this type of work had a trust that was created. It was called, I think I said it set on it. It was a probate avoidance trust. And I don't know how many millions of dollars in legal fees ended up being spent over that probate avoidance trust, but they also don't avoid probate, by the way, but that's a horror story. But yeah, I mean, no, a trust is not going to help you avoid litigation. What a trust will do is help you avoid probate if it's done right and there's no fighting over it. Sure, a trust.

A trust is definitely, at least in California, I think a lot of those states is a more efficient vehicle for disposing of your assets than a will is. that's true. And then the last statement I make regular as professional, I appreciate your feedback on, is anybody owns a house in California. Now I'm assuming, let's say,

$500,000, you know, anybody owns a house, or has children, really has a responsibility to have a, at least a basic estate plan done that probably includes a trust. Yeah, I think that's pretty good.

I mean, there are, there are devices that you now have in California. There's the revocable transfer on death deed, right? So, you know, there are ways where you, I guess, don't have to have one, but the answer is why not? Why not just have that will just in case, you know, because who knows if that deed is going to be effective a lot, you know? So, yes, the answer is if you own real property,

you got to do some sort of planning to avoid it. And that's where you get a lot of predatory stuff, by the way. Where you have a house, we have one house, okay, like in a state, you know, basically grandma had the house that's not worth a million dollars because California is expensive, okay? But, you know, it hasn't been reassessed in 70 years. And it's, you know, it's being split between six grandkids. and there's, you know, there's no liquidity, right, to pay for anything. So you need to sell it, but it's going to take a while through probate.

So then who comes in? The litigation finance, the probate finance people who charge a really high interest rate and make a bunch of money. And, you know, that this happens a fair amount. Actually, there's some stuff happening in the legislature now that may change that. We'll see what happens. But, you know, so that one example of why it's critical to have some planning in place. So in your case, just to add some kind of that.

So what happens is there's six errors. Somebody has to hire an attorney. Somebody has to file legal fees. If there's a pushback from where the errors, someone's got to contest those filed objections, answers objections. And so there's some money required. And if the only asset is the house, where you get the money from? The answer is there are companies that advance the inheritance.

but it's very expensive. And so I use that as a tool in some cases. And other ones, I do see it being used as a predatory tool as well. It's like any other tool. Not all over predatory. I don't mean to suggest that. But there may be some people on here who I did not mean to offend you. There are some that are predatory.

And it is an important tool for sure. But the point is you can avoid all of that or at least limit it right, decent planning. Right. 100%. Well, good. One other question came up. week was, I've never seen this before, a client went to an attorney, a private attorney, not a county. Now, maybe they were working at a pro bono seminar or something. They did a will and they named

as, and they had two or three children. They named as the executive of the will, the county public administrator. And it was interesting because the wording of the will was the county public administrator should use all powers to streamland the process and avoid the court process. But by definition of the county public minister is doing the case, it almost has to go through court confirmation or in L.A. through the auction process. Have you seen that? Is that a common practice? I've never seen that before. No, I actually haven't seen what you're describing right now. No. But yeah, that's interesting. Yeah, the auction process, I don't know if any of your viewers have enjoyed going down to probate court and dealing with overbitters and the, you know, arcane sort of process. It's always fun when I have like a new associate to bring them down to court for a hearing. I mean, well, it was fun before the pandemic now. Everything's about.

It was a lot more fun then. Yeah. A lot of people. And people, and I remember the first time I thought, like, what the heck is going on? This is crazy. So yeah, no, it's an interesting process. I know that Scott G. Funk has evolved in that a lot. That's remandum.

In fact, that was my specialty for a while was representing. investors buying those properties and kind of learning and now I list them as well. So definitely that's anybody who's interested in that. That's a whole area we could talk about sometimes. So look, Nick, I've kept a little bit over our time here at your outdoor rate. I don't get built for a whole other hours. So I'm going to. Yeah.

I got a text that I got to pick up my son in half an hour. Okay, good. And you're in Los Angeles. So that means just getting out the front door to the half hour right there. I can make it. I can make it if I leave in the next few. But, so look,

I really appreciate your time. Thank you so much for education, sharing with us for someone to get a hold of Nicholas Van Brunt, Shepard Mullen. I'll have the contact information down below. And a big firm, but he has been just a real beacon of information education. Thank you so much of your time. I really appreciate it. Bill, I really enjoy these conversations. Thanks for having me. Thanks so much.

Thanks for good question, everybody.