Valerie A. Powers Smith, Attorney-at-Law

Valerie Powers Smith CW3 Speaker Partner at SBEMP with over twenty-one years of experience, practicing in the area of Trusts, Estates & Probate and Special Ne...eds & Elder Law; and Chairs those Departments within SBEMP. Valerie has written extensively, co-authored several publications, and lectured throughout California, Pennsylvania, New Jersey, and D.C. Valerie has served on a variety of Boards and currently sits on the Board of Directors for Leadership Coachella Valley and the Desert Estate Planning Council. @vapsesq About Valerie’s Session: The 3rd Key to Financial Wellness: Negotiation This topic is important to Valerie because she sees it as critical to everyday functioning whether it be personal or professional. She believes we negotiate with ourselves from the moment we wake up to the moment our heads hit the pillow at night, that we negotiate with ourselves as to our lifestyle (what we eat, how we workout, who we socialize with, to what events or obligations we will commit ourselves,) and that we negotiate with our spouses/partners, and even with our kids (furry or human). And, for some of us, our jobs (like hers) are all about the art of negotiation to get the best result for our clients. Learn more about Valerie at https://sbemp.com/ ~~~~~~~~~~~~~~~~ A warm BIG thank you to our SPONSORS: Blanke Schein Wealth Management @blankescheinwm The Berger Foundation #bergerfoundation VANMAR Lending Vanmar Lending Billy Thoman COMPASS Realty @myhomeinthedesert SBEMP Attorneys sbemp.com You&Yours Distillery, Co. Mark Roberts Catering Desert Health News @deserthealthnews Alpha Media #alphamediapalmsprings Vent Dance CoachellaValley.com Desert Charities CW3 Summits are Presented by The FEW, a 501c-3 Non-Profit Organization @TheFinanciallyEmpoweredWoman #cw3confidencesummit #getempowered #womenempowerment #financialeducation #selfcare #womenandwealth #womenandmoney #wealthandwellness #confidence

We are proud to announce that SBEMP has been voted the Desert’s Best Law Firm in the Desert’s Sun’s 2020 official community choice awards. Thank you to our clie...nts and peers who nominated us for this honor; and, to the SBEMP Team that works to provide quality service to our clients every day. See more

Meet Valerie Powers Smith CW3 Speaker Partner at SBEMP with over twenty-one years of experience, practicing in the area of Trusts, Estates & Probate and Speci...al Needs & Elder Law; and Chairs those Departments within SBEMP. Valerie has written extensively, co-authored several publications, and lectured throughout California, Pennsylvania, New Jersey, and D.C. Valerie has served on a variety of Boards and currently sits on the Board of Directors for Leadership Coachella Valley and the Desert Estate Planning Council. @vapsesq About Valerie’s Session: The 3rd Key to Financial Wellness: Negotiation This topic is important to Valerie because she sees it as critical to everyday functioning whether it be personal or professional. She believes we negotiate with ourselves from the moment we wake up to the moment our heads hit the pillow at night, that we negotiate with ourselves as to our lifestyle (what we eat, how we workout, who we socialize with, to what events or obligations we will commit ourselves,) and that we negotiate with our spouses/partners, and even with our kids (furry or human). And, for some of us, our jobs (like hers) are all about the art of negotiation to get the best result for our clients. REGISTER for CW3 2021: https://cw3confidencesummit.com/confidence-summit-2021/ Learn more about Valerie at https://sbemp.com/ #CW3ConfidenceSummit #womenempowerment #girlpower #womenwealthwellness #financialeducation #selfcare #womenandwealth #womeninbusiness #confidence #knowledgeispower

We are excited to announce that SBEMP Partner Valerie Powers Smith will once again be speaking at the CW3 Confidence Summit. CW3 is designed to inspire its audi...ence and encourage participants both personally and professionally. The summit will be held virtually on January 21, 2021. To learn more about the event or purchase tickets, please visit cw3confidencesummit.com See more

RIP RBG "Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law."

Partner Profile: Valerie Powers Smith Valerie is a partner at Slovak Baron Empey Murphy and Pinkney, Coachella Valley’s largest full-service civil law firm. Fo...r over twenty years, Valerie has been representing clients in special needs and elder law and she is highly respected in her field. When she’s not busy working, Valerie enjoys riding and playing polo: "I’ve always loved the teamwork and camaraderie of sport. Polo requires teamwork and building a relationship with horses so it combines two of my loves in one activity - athletics and animals!" Look for Valerie on the field at the Eldorado Polo Club this upcoming season. @vapsesq See more

https://youtu.be/bAVcGi8JIwU

SBEMP has reviewed the newly signed H.R. 748 (CARES Act) and is prepared to answer questions that businesses may have regarding eligibility for assistance under... this program, what the money can be used for, terms of loan forgiveness, etc. Please contact Marc Empey or John Pinkney at our Palm Springs office with any questions on how the CARES Act can help your business. (Palm Springs Office - 760.322.2275) See more

SBEMP is offering remote access to address the communities' estate planning concerns. If you or a client of yours is concerned about getting his or her estate plan in place or making adjustments to an existing estate plan, SBEMP is here to help. https://conta.cc/2Wpx5dJ

Was such an honor to be a speaker at this conference.

CW3 ....and we begin !!

The Society of Financially Empowered Women Foundation (The FEW,) has launched registration for the 2020 CONFIDENCE: WOMEN + WEALTH + WELLNESS SUMMIT, to be held... JANUARY 16, 2020, from 8:30 am to 4:30 pm, at THE RIVIERA PALM SPRINGS. We are looking forward to hearing from all the speakers at this event, including SBEMP Partner Valerie Powers Smith.

SBEMP Partner Valerie Powers Smith and her polo pony, Annabella, featured in the 2020 Eldorado Polo Magazine

Happy Holidays!

Which local people in business do you feel make the biggest impact on our economy? Or use their platforms to as leaders or entrepreneurs to positively impact o...ur environment? Thank you to our valley's largest law firm Slovak, Baron, Empey, Murphy & Pinkney - SBEMP Attorneys at Law for giving these people the recognition they deserve, and for allowing me to be a part of the celebration! See more

So. Much. Energy! The Partners for Life - Supporters of The Desert AIDS Project team just broke into 5th place overall, having raised almost $10,000! These last... few days are critical so thank you to everyone who's out there making one or two or three final asks! #DesertAIDSWalk2019 Until there's a cure...we Walk! See more

To read more about SBEMP Partner, Valerie Powers Smith, who’s featured with her rescue dog, Winston, in Palm Springs Life Magazine, Palm Springs California's Vision edition this month, visit https://www.palmspringslife.com/ or newsstands around town.

SBEMP Partner, Valerie Powers Smith (along with her beloved rescue dog, Winston), is featured in this month’s Palm Springs Life Magazine’s Vision edition. To learn more about Valerie, be sure to check out her video interview on YouTube. https://youtu.be/3yxJro1WwcE

Congratulations to Lena Wade, Vee Buu Sotelo, and Renell Burch on becoming partners! We were proud to celebrate their accomplished careers and hard work, last n...ight in downtown Palm Springs at Lulu California Bistro. We are grateful to everyone who makes SBEMP an innovative and reliable team, and excited for the future of the firm as it continues to grow. See more

We're almost at 5,000!!! Lend your voice and support these amazing people. It only takes a moment to protect their future!

As Honorary Chair (and one of the models for the show ), I invite you all to support this upcoming event benefiting The Joslyn Center. This event is 80% sold out! The Joslyn Center is a 501(c)3 non-profit organization serving adults aged 50+ years living in Palm Desert, Rancho Mirage, Indian Wells, and the surrounding communities. Founded in 1981, The Joslyn Center is a vibrant, action-packed combination of The Joslyn Wellness Center, a variety of exercise and fitness prog...rams, social services, recreational activities, health education and entertainment, that improves the quality of life for its members. The Joslyn Center is the home of the Arthur Newman Theatre showcasing newly released movies and award winning stage productions weekly. The Joslyn Center has 250-400 visitors each day and more than 2,000 members.

LEGISLATIVE UPDATE FROM THE SPECIAL NEEDS DEPARTMENT: ABLE AGE ADJUSTMENT ACT A new piece of legislation aims to expand eligibility requirements for ABLE accoun...ts. Current law only allows individuals with disabilities that onset prior to the age of 26 to open an ABLE account. The ABLE Age Adjustment Act is a bi-partisan bill that would amend the Internal Revenue Code to increase the age threshold for eligibility for ABLE Programs from 26 to 46, allowing more individuals with disabilities to open the account that helps them save money.

New case alert: Estate of Stockird (from the CLA - Trusts and Estates Section): Cite as A152538 Filed December 19, 2018, First District, Div. One... Headnote: Wills - Distribution of Failed Residuary Gift Summary: A lapsed gift to a residuary beneficiary passes to the other residuary beneficiaries instead of intestacy, regardless of whether the beneficiary whose gift lapsed was kindred. Cheryl executed a holographic will leaving her entire estate to her life partner, John, and her aunt related by marriage, Patricia. Patricia predeceased Cheryl and the will contained no provision directing the disposition of Patricia’s share in that event. After Cheryl died, her will was admitted to probate and John petitioned the court for a determination he was entitled to Cheryl’s entire estate under Probate Code section 21111(b) because he was the sole surviving residuary beneficiary. https://pu176.infusionsoft.com///35254418/845d27b81cad8121

So cool to have been featured along with my polo divas in this Season’s Polo El Dorado magazine! #eldoradopolo

https://www.disabilityscoop.com//report-waiting-lis/25862/

From the Special Needs & Elder Law Department: Now, parents of children with special needs can save for the educational needs of their child with special needs, without causing the unintended ineligibility problem that 529s present.

NEW CASE ALERT From the Trusts, Estates & Probate Department Meleski v. Estate of Hotlen Cite as C080023... Filed November 29, 2018, Third District By Daniel C. Kim Weintraub Tobin Chediak Coleman Grodin Law Corporation www.weintraub.com Headnote: CCP 998 Offers Insurer as Party Under Probate Code 550 - Liability of Insurers for Costs Summary: A decedent’s insurer can be liable for costs beyond policy limits where the insurer obtains an outcome at trial that is less favorable than the Plaintiff’s C.C.P. 998 offer. Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. At the time of the accident, Hotlen had a $100,000 policy limit through Allstate Insurance. Hotlen then died and, as authorized by the Probate Code, Meleski filed a probate action against Holten’s estate for the policy limits of $100,000, serving her complaint on Allstate. Allstate rejected Meleski’s C.C.P. 998 offer to compromise of $99,999. At trial, Meleski recovered $180,613.86, and sought costs, including expert fees, of $66,017.08 under C.C.P. 998. The Court denied Meleski’s requests for costs, holding that Plaintiff’s recovery was limited to the $100,000 policy limit. Plaintiff appealed. The appellate court reversed. Allstate, although technically not a named party, was nevertheless a party for purposes of C.C.P. 998. The notion that the estate is the defendant is a legal fiction. In the context of this claim against the decedent’s insurer, Allstate alone controlled the litigation, was exposed to any liability, and rejected Plaintiff’s C.C.P. 998 offer. Allstate had made its own C.C.P. 998 offer, and the legislature did not intend for asymmetrical application of the statute. Lastly, the appellate court held that the insurer is liable for such costs even in excess of the policy limits.

Want to learn more about the ABLE Act? This newly-written article covers all you need to know about the act that has helped people with disabilities save millions of dollars.

New case alert from California Lawyers Association: Orange Catholic Foundation v. Arvizu Cite as G055189 Filed October 17, 2018, Fourth District, Div. Three... Josephine created a trust in 1997. When Josephine died in 2007, her niece, Rosie, succeeded her as trustee. Rosie was neither legally nor financially sophisticated, but had been close with Josephine and knew her wishes. Under the trust Josephine left a life estate in a residence to her long-time family friend, Paul, and the residue to Orange Catholic Foundation. The trust required Paul to pay ordinary maintenance expenses on the residence. Paul was elderly, had dementia, and was unable to afford the expenses. Instead of evicting Paul, Josephine used trust funds to pay the expenses because she thought it was the right thing to do and what Josephine would have wanted. After Paul died in 2012, it took Rosie two years to sell the residence. Orange Catholic Foundation petitioned the court for Rosie’s removal and surcharge based on these breaches of trust. The trial court denied the petition and excused Rosie’s conduct because it found she acted reasonably and in good faith. Orange Catholic Foundation appealed. The appellate court affirmed. If the court finds a trustee has acted reasonably and in good faith the court has discretion to excuse the trustee from liability if it would be equitable to do so. Substantial evidence supported the trial court’s finding that Rosie acted reasonably and in good faith because she felt her use of trust funds to pay the expenses was consistent with her aunt’s wishes and also helped avoid foreclosure. Her two-year delay in selling the residence was neither unreasonable nor in bad faith, given the health issues she was facing at the time. This was not a case of self-dealing and none of Rosie’s actions benefited her personally. Notably, the two-year delay in selling resulted in $136,000 in appreciation in the value of the house. The trust sustained no damage, and Orange Catholic Foundation received a net benefit from Rosie’s conduct. Therefore, the trial court did not abuse its discretion in excusing Rosie from liability. http://www.courts.ca.gov/opinions/documents/G055189.PDF

Case report from NJSBA: TRUSTS AND ESTATES 38-2-7440 Richburg v. Estate of Richburg, N.J. Super. App. Div. (per curiam) (10 pp.) Plaintiff executor appealed the dismissal of deceased mother's quiet title action on forum non conveniens grounds. Before her death, mother filed a quiet title action to set aside deeds transferring title of Jersey City property to her son, alleging forgery, fraud and undue influence. After mother's death, daughter filed an amended complaint as pla...intiff and as co-executor of mother's estate. The Chancery court dismissed the action after learning of a probate action in New York regarding the mother's will. Plaintiff executor argued the Chancery court erred because the order divested her of any viable forum in which to pursue her action. She asserted the matter involved a deed to a New Jersey property, was distinct from any dispute about deceased mother's will and the action was barred in New York by the statute of limitations but timely in New Jersey. The court noted that the defendant did not file a motion to dismiss but that Chancery court raised the issue sua sponte and improperly placed the burden on plaintiff executor to retain jurisdiction in New Jersey. The court also noted that New Jersey was the only state that could adjudicate title to the property, the issue involved ownership of the property before mother died and there was no evidence that deceased mother's will would be contested. See more

4th ANNUAL SBEMP AWARDS #SBEMP . Congratulations to the winners.

New Case Alert from CA Lawyers Association: Conservatorship of the Person of M.B. Cite as A152586 Filed August 20, 2018; Modified and Certified for Partial Publication on September 12, 2018 California Court of Appeal, First District... M.B., a minor, appealed an order appointing the Public Guardian as the conservator of her person pursuant to the Lanterman-Petris-Short (LPS) Act. Minor contended that the court should have applied the definition in Welfare Institutions Code section 5585.25, which defines grave disability of a minor as a minor who, as a result of a mental disorder, is unable to use the elements of life that are essential to health, safety, and development, including food, clothing, and shelter, even though provided to the minor by others, instead of the definition contained in section 5008, subdivision (h)(1)(A). https://pu176.infusionsoft.com///30753792/9397403e5185819a

New case alert from CA Lawyers Association: Cortese v. Sherwood Cite as A152351 Filed July 31, 2018 (modified and published August 21, 2018), First District, Div. Five... When Francesca died in 1997, her husband, Robert, became sole successor trustee of her trust. Robert was the lifetime beneficiary and Francesca’s two daughters from a prior marriage were the remainder beneficiaries. Christina, one of the remainder beneficiaries, filed a petition alleging Robert breached his fiduciary duties as trustee of Francesca’s trust. She also alleged Robert’s attorney, John, was liable under a cause of action framed as third-party liability for breach of trust. Although the petition did not expressly plead conspiracy, John demurred based on a conspiracy statute requiring a plaintiff to obtain a pre-filing order where a cause of action alleges an attorney conspired with the attorney’s client. In overruling the demurrer, the trial court found Christina did not facially bring a conspiracy claim. John appealed. https://pu176.infusionsoft.com///29179495/3e5dfe5039d37fa2

New case alert from CA Lawyers Association: Conservatorship of Presha Cite as E066177 Filed August 22, 2018, Fourth District, Div. Two... Christie, a professional fiduciary, served as conservator of Lorraine’s person and estate until Lorraine died in 2015. After Lorraine’s death, Christie filed a combined petition seeking (1) approval of her final accounting and (2) conservator’s fees. At the hearing, the probate court expressed concern over Christie’s billing practices, including what appeared to be duplicate time entries charged to several different client files. The probate court, on its own motion, reviewed and took judicial notice of court records in 15 of Christie’s cases in two counties to further evaluate whether her pending fee request was reasonable. The court found that the billing-related portion of Christie’s accounting contained substantial errors that rendered her fees excessive, and therefore reduced Christie’s fees by more than $5,000. Christie appealed. https://pu176.infusionsoft.com///29742544/bd41341df5cbcda2

New case alert from CA Lawyers Association: Barefoot v. Jennings Cite as F076395 Filed August 14, 2018; Certified for Publication September 10, 2018; California Court of Appeal, Fifth District... Settlor’s daughter Joan challenged the validity of eight amendments to and restatements of the Trust executed by the settlor in a three year period, which ultimately resulted in Joan’s disinheritance and removal as successor trustee of the Trust. Joan’s sister Shana benefited as a result of the challenged amendments with a larger share of the Trust and appointment as successor trustee. Joan filed her contest under Probate Code section 17200, alleging that the settlor was not competent at the time she executed the amendments, and that the settlor executed the amendments as a result of Shana’s undue influence and fraud. Joan alleged standing because she was a beneficiary and trustee of a prior version of the Trust, which would be reinstated if Joan were successful in her suit. Shana moved to dismiss on the grounds that Joan lacked standing under section 17200 because she was neither a beneficiary nor a trustee of the Trust under the latest iteration of the Trust. The trial court found in Shana’s favor and dismissed Joan’s petition without prejudice. https://pu176.infusionsoft.com///30092602/4c836982ca739f5b

New Case Alert from California Lawyers Association: Scott v. McDonald Cite as E062672 Filed August 22, 2018, Fourth District, Div. Two... A’Yana was the beneficiary of a special needs trust established by court order in 2004 and funded with proceeds from the settlement of a medical malpractice lawsuit. Melodie, a professional fiduciary, was appointed trustee in 2004 and signed the trust instrument. Although the trust required biennial court accountings Melodie filed her first accounting in 2012, asserting she was unaware the trust was court-supervised. Melodie also sought to terminate the trust due to uneconomically low principal, after having distributed the last $15,574.85 to A’Yana’s mother to help her purchase a house. She also asked the probate court to approve $34,229.55 in trustee’s fees which she had already paid herself over the course of the seven-year trust administration. A’Yana’s court-appointed attorney objected to the accounting on several grounds and, after a 3-day evidentiary hearing, the probate court denied Melodie any trustee’s fees and surcharged her $93,036.75. On appeal Melodie argued that the trial court had applied the wrong legal standard. https://pu176.infusionsoft.com///29771562/40dbd34d4b1cc980

Case Alert from California Lawyers Association: Estate of O'Connor, D0711284 (8/29/18, Fourth District, Div. One): Arthur and Hildis created a trust and named their children as remainder beneficiaries. Under the trust their son John held a power of appointment over his interest in the trust that, if not exercised, would pass to the other trust beneficiaries. In order to validly exercise the power of appointment it had to be exercised in a will specifically referring to and ...exercising this general testamentary power of appointment. John died in 2014, leaving a will under which he exercised his power of appointment in favor of his brother, Kevin, and named Kevin as executor. Two other trust beneficiaries, Brian and Astrid, contended John’s exercise of the power of appointment was invalid under Probate Code section 632 because it failed to satisfy the trust’s specific-reference requirement. Kevin petitioned the court to probate John’s will and sought to establish the validity of the power of appointment. The probate court granted the petition and found the reference in John’s will to the power of appointment was sufficiently specific to satisfy the trust’s terms and Section 632. Brian and Astrid appealed. https://pu176.infusionsoft.com///29811926/b8ffdb3c243383ea

New Case Alert from California Lawyers Association: Powell v. Tagami Cite as D072566 Filed August 6, 2018 (Published August 15, 2018), Fourth District, Div. One... After a family dispute over a former trustee’s management of trust assets, the grantors removed the former trustee and appointed Claudia, a private professional fiduciary, as successor trustee. Claudia filed and obtained court approval of her first two trust accountings without objection. In 2016, after the second grantor died, Charles, one of the trust beneficiaries, demanded the third trust accounting as well as all supporting documents, including bank statements, attorney billing statements, and engagement letters. Claudia petitioned the probate court for approval of the third accounting, and Charles objected on several grounds. He asserted Claudia had failed to submit a fee declaration required by local rule, that the fees were unreasonable, and that she had committed misconduct both before and after the time period covered by the third accounting. The probate court approved the trustee’s accounting, found that Charles’s objections were made without reasonable cause and in bad faith warranting an award of attorney’s fees under Probate Code section 17211(a), and, in a separate order, fixed the amount of fees recoverable from Charles’s share of the trust or personally if his share was insufficient. Charles appealed both orders. https://pu176.infusionsoft.com///28727144/dd89aee1925b8323

New case alert from California Lawyers Association: Blech v. Blech, B268326 (8/6/18, Second District, Division Three) Arthur died in 2011, leaving most of his assets in trust for his four children in unequal subtrusts. The trust provided that Arthur’s son, Raymond, was to receive 35% of the trust and that Raymond’s subtrust would include Arthur’s ranch, which was worth $7.2 million at Arthur’s death. The trust also provided that the income tax of any subtrust was to be paid ...by that subtrust’s beneficiary. In 2014, the ranch sold for $14 million. The trustee allocated proportionately among the beneficiaries the appreciation between the $7.2 million date-of-death value and the $14 million sale price. The trustee also allocated solely to Raymond’s subtrust the $2.3 million in income tax from the sale. When the trustee filed an accounting reflecting these allocations, Raymond objected and contended he should have received the entire net proceeds from the sale, including the appreciation. The probate court approved the trustee’s accounting over Raymond’s objection, and Raymond timely appealed. To read more: https://pu176.infusionsoft.com///28485178/650968c3f08f84b6

New Case Alert from California Lawyers Association: Estate of Post Decedent Jerome Norman Post purchased a life insurance policy during his lifetime and named his then-spouse, Angela Post, as the primary beneficiary, and his sons from a prior marriage, Kenneth Post and Eric Post, as the contingent beneficiaries. Decedent was divorced at the time of his death, but he had not changed the beneficiary designation on his life insurance policy to remove his former spouse as the pri...mary beneficiary. He had executed a codicil to his will shortly before his death expressing his strong desire that his former spouse receive nothing from him after his death, including by beneficiary designation. Decedent’s sons sought an Order designating them as the rightful beneficiaries of the decedent’s life insurance policy under Probate Code Sections 5040 and 9611. The trial court found in favor of the sons, and issued an order naming them as the proper beneficiaries of the life insurance proceeds. The Court of Appeal reversed. The court, sitting in probate, has no jurisdiction over life insurance policies where the decedent’s estate has no interest in the proceeds. A beneficiary under an insurance policy takes under an insurance contract, and not pursuant to the laws of succession. Thus, because the trial court had no jurisdiction over the subject matter of the order (i.e., the life insurance proceeds), the trial court’s order was void. http://www.courts.ca.gov/opinions/documents/A151975.PDF

Leadership Coachella Valley Friends... From the looks of this "Meme" it looks like LCV Class of 2015 was indeed the BEST CLASS EVER! I'm mean, this picture is ...on the internet so it has to be true; CHANGE MY MIND.... LOL. Well, as you know we are closing in on the application deadline for our next class. If you or anyone you know are considering going through LCV, please fill out your application. If you have any questions please feel free to reach out to Abigail Sturgeon; she'll answer all your questions lol. J/K you can reach out to me or anyone who's been through LCV. Ok... now click on this link and APPLY: http://www.leadershipcv.org/ See more

New Case Alert from California Lawyers Association (6/20/18): Morgan v. Superior Court Cite as G055377 Filed May 29, 2018, Fourth District, Div. Three... Beverly amended and restated her trust in 2013, naming herself as initial trustee and her son Thomas as her successor. In 2014, Beverly died and Thomas succeeded her as trustee. Beverly’s daughter, Nancy, filed petitions seeking, among other things, to invalidate the trust and to remove Thomas as trustee. After Thomas filed an inadequate accounting, the probate court suspended him and ordered him to turn over all trust records to the interim co-trustees. Although the court order was broad enough to include attorney-client communications between Thomas and his counsel, Thomas refused to produce those communications because a provision in the trust permitted the trustee to withhold privileged communications from a successor trustee. Thomas petitioned for a writ of mandate to reverse the trial court’s order. Read more: https://pu176.infusionsoft.com///26437825/152121bde0031898

Case Alert from California Lawyers Association (6/11/18): Estate of Casserley Cite as D072298 Filed April 27, 2018, Fourth District, Div. One... Decedent Norman Casserley and Paul Blazevich were neighbors. In 1997, Decedent was convicted of a crime and ordered to pay Blazevich restitution. Ten years later, Blazevich recorded the order and then obtained an amended order which increased the restitution award. In 2008, Blazevich executed and recorded an assignment of the original (but not the amended) order to his wife Emerita Cruz Joya. The amended order was not recorded until after Casserley’s death in 2015. Casserley died intestate, and the estate’s only asset was a modest house, which the administrator sold. The estate was insufficient to pay all claims. Joya filed a creditor’s claim based on the initial order, which was allowed and paid, and an amended claim based on the amended order, which the administrator denied. Joya objected to the administrator’s final accounting, arguing that the post-death recordation of the amended order created a lien on all probate assets. She also argued that, under the Constitution’s restitution provision, her claim to payment of restitution was entitled to priority over other creditors’ claims filed by the state and county. The trial court rejected both arguments. Read more: https://pu176.infusionsoft.com///26091117/d60b749bcac172c2

From NAELA: Medicaid Eligibility Notice Mailed to Applicant and Not Authorized Representative Was Effective to Initiate 20-Day Fair Hearing Request Period (N.J. Sup. Ct.) V.S., suffering from Alzheimer's Disease and other related disorders, was transferred from an acute care hospital to Llanfair House. Deborah Condorelli of Llanfair House was designated by the facility to apply for Medicaid benefits on V.S.'s behalf. Condorelli and the county Board of Social Services traded c...orrespondence throughout the pendency of the application. The county ultimately imposed a 1,555 day penalty period due to uncompensated transfers. No request for a fair hearing was made within the requisite twenty day period. Seven months later, V.S.'s son requested a fair hearing challenging the penalty period calculation. The request was denied as untimely. V.S. appealed, arguing that the notice was addressed to V.S. rather than Condorelli and therefore notice of the penalty period was not properly effectuated. The New Jersey Superior Court affirmed. It found V.S.'s argument unavailing because Condorelli had ongoing communications with the Board over several months throughout the application process with all correspondence directed to V.S. at the same address as the disputed notice. V.S. v. Dept. of Human Services, 2018 WL 2188637 (N.J. Sup. Ct. May 14, 2018)(unpublished)

Women Who Lead Luncheon at The Ritz-Carlton, Rancho Mirage, May 14, 2018 (SBEMP, Presenting Sponsor) https://www.palmspringslife.com/women-who-lead-awards/

http://www.latimes.com//la-me-ln-end-of-life-option-act-20

Looking forward to next season for Desert Estate Planning Council when I will become a new Board member!

https://www.disabilityscoop.com//justice-sued-disab/24949/

https://www.disabilityscoop.com//sesame-street-expa/24942/

https://www.disabilityscoop.com//wage-hikes-service/24957/

https://www.disabilityscoop.com//lawmakers-band-def/24937/

From the Special Needs & Elder Law Department: https://www.disabilityscoop.com//medical-schools-fo/24838/

Let's kickoff #NationalDisabilityAwarenessMonth with our snazzy new video from Mercury Film & Television. This video debuted at our 1st ever Annual Recognition ...Awards Luncheon. Thank you again to everyone who joined us for the celebration! #createopportunities #enhancelives #abilities #mobileshredding #recycling #assembly #packaging #WORK

New case from the NJ State Bar Association: 38-2-5762 In the Matter of the Estate of Mallas, N.J. Super. App. Div. (per curiam) (13 pp.) Frank and Angelina Picciolo, husband and wife, appealed from the order of judgment requiring Angelina to disgorge funds she received from an annuity transfer Frank had completed while acting as attorney-in-fact for decedent William Mallas, the Picciolos' neighbor. ... Prior to his death, decedent executed a power of attorney in favor of Frank, a new will naming Angelina as beneficiary, and a codicil appointing Frank as his estate's executor. Although the trial court upheld the power of attorney, will, and codicil, it ruled that Frank had failed to prove no undue influence was exerted upon decedent to facilitate the purchase of the annuity designating Angelina as sole beneficiary. On appeal, the court affirmed the trial court's order requiring Angelina to disgorge the funds and further requiring the annuity's beneficiary to be changed to decedent's estate. The court noted that the burden of proof concerning undue influence shifted to the beneficiary of a transaction where that beneficiary stood in a confidential relationship to the testator and where there were "suspicious circumstances". The court affirmed the trial court's determination that there was a confidential relationship between Frank and decedent, who relied upon Frank for his affairs. Thus, because the burden of proof shifted to the Picciolos, the court further affirmed the trial court's conclusion that they had failed to carry that burden of proving the absence of undue influence. The court noted that the Picciolos' own expert opined that decedent was incapable of understanding the annuity transaction, did not have the benefit of independent counsel, and did not directly interact with the annuity sales agent. The court also noted that Frank's assertions in opposition were belied by the fact that decedent could have left more to the Picciolos through his will. Finally, the court noted that there was no credible evidence rebutting the presumption of undue influence.

News from NAELA: Court Properly Exercised Discretion in Refusing to Refer Claims Against Nursing Home to Arbitration (Cal. App.) Southern California Specialty Care, Inc. appealed a trial court order denying its petition to compel arbitration of negligence, elder abuse, and wrongful death claims arising from decedent Antonio Avila's stay at a facility owned by Southern California Specialty. Avila died within five days of admission to the facility after his feeding tube became ...dislodged, causing aspiration. The arbitration agreement at issue was entered into by Avila's son as attorney-in-fact pursuant to a California statutory power of attorney form. The trial court concluded that the wrongful death claim was not subject to arbitration and exercised its discretion to refuse to enforce the arbitration provision for the negligence and elder abuse claims to reduce the risk of inconsistent judgments. The California Court of Appeal for the Fourth Appellate District affirmed. The court held 1) the trial court's exercise of discretion to refuse to refer for arbitration certain claims was allowed under state law because the Federal Arbitration Act's procedural rules prohibiting such discretion were not incorporated into the terms of the agreement; 2) the son, by signing the arbitration agreement in his capacity as agent, did not waive his individual right to a jury trial on the wrongful death claim; and 3) where parties are litigants in both survivorship and wrongful death actions the court may properly exercise its discretion to deny referral to arbitration of claims where there is a strong possibility of inconsistent rulings. Avila v. Southern California Specialty Care Inc., 2018 WL 1044668 (Cal. App. Fourth Dist. Feb. 26, 2018)

Don't say I didn't give you enough notice! ;) Golfing for a great cause, Thursday, April 5th at the beautiful Fantasy Springs Resort Casino Eagle Falls course. Contact www.desertarc.org to sign up your foursome, or sponsor this terrific event.

https://www.law.com//are-disabled-persons-collateral-dama/

New case alert from CA: Estate of Kirk Kerkorian Kerkorian executed a will in July 2013 and married Una Davis about a year later. Two days prior to the wedding, he gave Anthony Mandekic $10 million dollars with instructions to give the money to Davis outside of Kerkorian’s estate or any testamentary transfer, and Mandekic complied. The day before the wedding, Davis signed a waiver, relinquishing any right to Kerkorian’s estate, including the right of an omitted spouse. Kerk...orian died a year later, and his will did not name Davis as a beneficiary. Davis filed a petition seeking a distribution as an omitted spouse. As executor, Mandekic petitioned for court approval to oppose Davis’s petition pursuant to Probate Code section 11704. The court granted Mandekic’s petition finding, inter alia , that Mandekic was familiar with the estate and Kerkorian’s intentions; that he had no financial interest having already received his distribution and he was not otherwise improperly motivated; and that his participation would be helpful in determining the rightful beneficiaries in accordance with Kerkorian’s intent. The appellate court affirmed. On appeal, Davis argued that the lower court had misapplied section 11704 in granting Mandekic’s petition for approval to oppose Davis’s petition. Specifically, Davis argued that the lower court had failed to make an express finding that Mandekic’s participation was necessary to assist the court. However, the appellate court held that such an express finding of necessity was unnecessary because a good cause finding under section 11704 naturally incorporated a contemplated level of necessary assistance by the petitioning party. The appellate court further found that the Legislature intended the term necessary to mean useful or appropriate and that the lower court had not abused its discretion in finding good cause. http://www.courts.ca.gov/opinions/documents/B283132.PDF

Extremely honored & proud

Looking for a rewarding job with good benefits? Want to have a direct impact on enhancing someone's life? We are hiring! Check out our available positions! Incl...uding Payroll Coordinator, Bus Driver, Landscape Instructor and more! Positions available in different locations. Apply online using the link below or visit our Palm Desert office today. See more

This is wonderful!