Posts Tagged ‘grandparents’

Intestate Succession Rules Can Be Tricky to Apply

APRIL 4, 2016 VOLUME 23 NUMBER 13

March was “Write-a-Will” month (sometimes referred to as “Why a Will” month). Though we’ve never understood the difference, August will be “Make a Will” month again this and every year.  In the United Kingdom, every March and October are “Free Wills” months. Or is it April?Or is that only in Canada?

With all the emphasis on the importance of getting estate planning done, you’d think people would actually get around to writing a will. It turns out that any month is a good one for illustrations about why making a will is important.

Consider Kent Konrad (not his real name), who died in Michigan in February, 2012 — just weeks before his 60th birthday. He never wrote a will. His estate became embroiled in a fight about who was entitled to receive his property.

Kent never married, never had children. Both of his parents had died before him. The Michigan rules for “intestate succession” (the default distribution for people who have not made a will) directed that his estate should be distributed half to the descendants of his maternal grandparents, and half to the descendants of his paternal grandparents.

That seems fairly straightforward, but there was a wrinkle. Kent’s father was a posthumous child. In other words, Kent’s grandfather (Karl) died before Kent’s father was born. In fact, Karl died as a result of a fight over the affections of Kent’s grandmother; the couple had quarreled, and Karl had threatened anyone who might try to date his girlfriend. When another man attempted to kiss her, Karl knocked him down with a single blow — the suitor got up and stabbed Karl to death. Karl died in 1931; Kent’s father was born three months later.

Kent’s grandmother never had any other children, so under Michigan law his paternal relatives’ share would go to Karl’s other descendants — a son Ernest. Except for the wrinkle.

Kent’s maternal relatives argued that Ernest should not receive any share of Kent’s estate. Why not? Because Karl never acknowledged Kent’s father, and never agreed to support him. Under Michigan law (Arizona has a similar statute), that permitted an argument that Karl could not inherit from his son or his son’s children — and that arguably would cut Ernest out from receiving any share of Kent’s estate.

Nonsense, ruled the Michigan probate judge. Not only was Ernest the closest relative in Kent’s paternal lineage, he should receive half of Kent’s estate. The other half would be divided among Kent’s cousins on his mother’s side of the family.

The Michigan Court of Appeals agreed. The fact that Karl died before ever even meeting his son did not amount to a refusal to acknowledge or support him, according to the appellate court. Although one of the three appellate judges deciding the case disagreed, the court upheld the probate judge’s ruling by a 2-1 vote. Estate of Koehler, March 24, 2016.

It is important to keep in mind that the legal dispute over Kent’s estate could easily have been addressed. All Kent needed to do was to sign a will. The precise relationship of his uncle and cousins would then have been unimportant. He could have left his estate in shares, or all to his uncle, or all to his favorite cousin, or all to his girlfriend, or to charity. He could have left some or all of his estate in trust to take care of his two dogs — or any variation or combination of those choices.

If Kent had signed a will, could his uncle, or his cousin, have challenged the will? Well, yes — but will challenges are very rare, and even more rarely successful. It would not be enough to show that there was confusion over his family relationships — anyone contesting the will that Kent should have signed would have to show that he was incompetent, or mistaken, or unduly influenced.

Why do people not get around to signing wills? Reasons vary, of course — some people don’t think it’s important, some just can’t get focused on their own mortality, some mean to make that appointment but just don’t get around to it.

Don’t wait for a pre-set month to get your will written. Don’t wait for inspiration, or discounts, or free clinics. If you don’t have a will, this would be a really good month to get the task done.

Court Orders Weekly Visitation for Grandmother of Child

NOVEMBER 30, 2015 VOLUME 22 NUMBER 44

When Mary Lansing (not her real name) gave birth to a daughter in August, 2013, her boyfriend (and the father of her daughter) was already in prison. Four months later, she filed a paternity action naming her boyfriend, and sought a court order granting her sole legal decision making authority and child support.

Her boyfriend’s mother Louise filed a motion to intervene in the paternity action. She asked for a court order giving her regular visitation with her granddaughter. Because Mary had expressed concerns about Louise, and the baby’s father had expressed concerns about Mary, the court appointed what is called a “Court Appointed Advisor” to investigate and report.

A Court Appointed Advisor (let’s call them “CAA”) is a professional, usually trained in mental health or appropriate social services. The court actually has the option of appointing an attorney to represent the child’s wishes (though that wouldn’t have made sense in this case, since the child is still just a little older than two), or an attorney to represent the child’s best interests, or a CAA.

The logic of the CAA appointment makes sense. This professional can visit the home where the child lives, the home where visitation or shared custody might be carried out, and interview all the players. The CAA then becomes a witness — an expert witness, in fact, and (in a sense) the court’s own expert witness. This might help the judge get to the bottom of the dispute more readily.

In this case, the CAA prepared a written report and testified at a temporary visitation hearing. After that hearing, the judge ordered that Louise would have one three-and-a-half hour visitation session (unsupervised) with her granddaughter every Sunday.

Mary appealed the order, arguing that the judge had failed to give sufficient consideration to her basic right to control who would have access to her daughter. She also objected to the judge’s reliance on the CAA report, and to the failure to order Louise to pay her attorney’s fees.

The appellate court upheld the trial judge’s rulings on each issue. It was appropriate to rely on the CAA’s recommendations, said the Court of Appeals; there was no evidence that the judge failed to make his own decision about the child’s best interests. Merely because many of the CAA’s recommendations were adopted, it does not follow that the judge improperly “delegated” his decision-making role.

A large part of the trial judge’s ruling relied on the obvious animosity between Mary and her ex-boyfriend’s earlier girlfriend, the mother of his first child. The fact that Louise indicated a desire to let her two granddaughters (and half-sisters) get to know one another should not prevent her involvement in the child’s life.

One other point made by the trial judge (and approved by the Court of Appeals): the amount of intrusion on Mary’s parenting was very limited. A single weekly session for just a few hours should not be seen as much imposition. Mary’s objections, though not irrelevant, should not preclude Louise’s ability to maintain at least some slight contact with her granddaughter.

On the subject of attorney’s fees, the trial judge had noted that Mary’s behavior in the court proceedings was “abusive and unnecessary.” Based on that, and on the fact that Louise was successful in securing a visitation order, the trial judge had refused to order Louise to pay any portion of Mary’s attorney fees.

On the other hand, the trial judge had declined to order Mary to pay any of Louise’s fees — not because she should not have to pay, but because she had no assets from which to pay. The Court of Appeals explicitly approved the trial judge’s handling of the attorney fee issue. Lambertus v. Day-Strange, November 19, 2015.

There are few (perhaps surprisingly few) Arizona appellate cases about grandparents’ visitation rights. Most of the cases that are decided at the appellate level are “memorandum” decisions — meaning that they are not supposed to be cited as precedent in later cases, though they do represent the appellate judges’ thinking on the issue. Mary and Louise’s dispute was resolved in just such a memorandum decision.

Imagine that you are having a dispute with the mother (or father) of your grandchild, and that you want to seek a court mandate that you have visitation rights. Assuming that your dispute is in Arizona, what does this case tell you about your chance of success, or alternative approaches you ought to consider? (If your dispute is not in Arizona, do not take this case or anything we write here as indication of a single thing about your dispute — talk to a lawyer in your state.)

Probably not a lot. Each grandparent visitation case will be dependent on its own facts, and the collection of evidence (and its presentation in court) can make facts difficult to pin down with clarity. The process can be cumbersome and expensive, and bad interpersonal relationships are unlikely to improve in the course of litigation.

Probably the best take-away from Mary and Louise’s legal dispute is that you should start by reading the Arizona statute on grandparent visitation (look particularly at subsection C for visitation). It is important to understand that the statute does not tell you that if you meet the basic standards you will be entitled to a visitation order. Instead, the statute is a threshold issue: if your case does not meet one of the four criteria for a visitation proceeding, there is no recourse under the statute at all.

Lessons From a Day in Probate Court

JULY 7, 2014 VOLUME 21 NUMBER 24

One day last week I found myself sitting in probate court, watching other cases get resolved while waiting for the Judge to get to my own cases. The matters I was listening to seemed to me to be instructive, and give me a chance to share some observations from the perspective of a veteran probate court participant.

In the almost forty years I’ve been practicing in probate court, some things have changed quite a bit. Others have not. One that has changed dramatically is the now-common practice of probate court litigants doing things themselves, without hiring a lawyer. That was almost unheard of in the 1970s, but is now commonplace. More than half of the cases I watched did not have a lawyer involved.

On top of that trend, Arizona has engaged in a decade-long experiment in certifying non-lawyers to prepare legal documents. The Arizona Certified Legal Document Preparer Program has been run by the Supreme Court since 2003, and there are more than 500 Certified Legal Document Preparers across the state. They have undergone a background check and passed a test — and they can prepare pleadings for probate, divorce and other actions, as well as wills (and even trusts). The key is that they are not supposed to practice law — they can help you fill out forms, but not be your lawyer. Other states (notably Washington) are following or considering a similar path.

Everyone knows that lawyers are expensive, that we complicate matters unnecessarily, that we are slow and unresponsive. Legal document preparers should alleviate those problems, right? That’s not exactly what I saw in my day in probate court. In two cases I think document preparers failed to serve their clients well. In a third, with no lawyer or document preparer involved, a little help would have made the litigants’ lives easier, I’m pretty sure.

Exhibit One: a simple probate (I’ve learned that “simple” is a dangerous word in this context, but let’s keep using it). It involved a decedent who left five children, a will and a house — and not much else. One son and a son-in-law were named as personal representatives in his will, and his son-in-law (as he explained to the court while I listened) took responsibility for getting the probate proceedings going. He contacted a document preparer to get him started.

The document preparer required a $1,200 fee up front, and promised to have the paperwork ready shortly. After months of trying to get back in touch with the document preparer, though, the son-in-law finally figured out that he was out of business — he had been charged with a felony (apparently unrelated to his business) and wasn’t going to be doing any more quasi-legal work for others. The new problem: the original will was somewhere in the document preparer’s files, and he was in prison.

Son-in-law explained that he had gone to a new document preparer, who had prepared a petition for probate of a copy of the now-missing will. That had cost another $650 up front, and required that the son and son-in-law attend a probate court hearing to explain why the original will was missing. The result: about $2,000 in initial costs (it wasn’t clear if more fees will be incurred), a wait of more than six months to get a simple probate started, and a confusing and frightening hour before a friendly but stern probate judge.

What would have happened if the son-in-law had visited a lawyer instead? It’s hard to say with certainty, but a best guess from the information revealed in court: the total cost would probably have been about $2,500-3,000 plus filing fees, the son and son-in-law would have had authority to sell the house in no more than five days, the lawyer probably would have waited to be paid from proceeds from sale of the house (so no one would have to write up-front checks), and the whole thing would almost certainly have been over in about four months. And that doesn’t consider the possibility that there might have been a summary proceeding available under Arizona law which would have saved a few dollars and several months of time. Oh, and no one would ever have had to appear in court, nervously or otherwise. Oh, and the son and son-in-law would have had the correct forms filled out, and wouldn’t have had to visit the County Bar Association office to get one more form the document preparer missed, consuming another hour of their day and causing more confusion and consternation.

You might think the problem was really just bad luck, that this hapless fellow chose his document preparer badly. After all, few document preparers end up in prison, and there’s nothing that keeps a given lawyer from going bad, either. True enough, though (a) most lawyers practice in groups, so if one lawyer in a firm drops out of sight there’s likely to be someone else to take responsibility, and (b) the document preparers do seem to have a high rate of discipline, with about 50 having their licenses suspended or revoked in the decade since creation of the listing. That looks like about a 10% rate of attrition, which seems higher than for lawyers.

Exhibit Two: In another case involving a document preparer but no lawyer, two women were involved in the life of a 14-year-old girl. The girl’s mother had gone to prison some years ago, and a family friend had adopted the 14-year-old and her four brothers and sisters. Now the 14-year-old had decided she wanted to live with her maternal grandmother, and so had just moved in. Grandmother had consulted a document preparer, and filed an emergency guardianship petition without giving notice to the adoptive mother. Last week’s hearing was the permanent guardianship proceeding, seeking to turn that emergency guardianship into a full guardianship.

The document preparer helpfully came to court with the grandmother, though of course he could not speak for her or even be acknowledged in the probate proceeding. He helped her get her documents together and prompted her about what to tell the Judge. The adoptive mother was also there, telling the Judge that she had no objection to the change in guardianship — she just wanted to make sure that everyone realized that she would no longer be responsible for the girl’s medical bills. The problem with that position: she is still responsible for her daughter’s medical bills — and there was no one available to explain that nuance to her (and the Judge, in his eagerness to get through a complicated and mildly contentious proceeding, didn’t help by reassuring her she was completely off the hook).

Would a lawyer have been more expensive? Almost certainly. Would the 14-year-old have been better served by having someone able to actually give legal advice in this complicated family situation? I’m pretty sure. Would the proceeding have been less stressful, less contentious and more suitable for the 14-year-old (who sat through the court proceeding, watching the tension and drama)? Darn straight.

Exhibit Three: a grandmother was seeking guardianship over her infant grandson. Her daughter lived with her, but had no job and no insurance; grandmother was just trying to get the baby on her own insurance plan. She did the paperwork herself, with no lawyer or document preparer. When she gave notice to the baby’s father, he showed up at the hearing and started talking about his pending petition to get custody, his desire to develop a relationship with the baby, and his lingering uncertainty about paternity. Grandmother got temporary guardianship, but the whole proceeding took a stressful hour and involved plenty of assertions and suspicion.

If grandmother had gotten the advice of a competent lawyer, she might have learned that it’s actually not that hard to get medical insurance for an infant, that she could have worked something out in writing with the putative father (and accelerated the process of figuring out whether he really is the father), and that her guardianship would be of little value (at least in Arizona) if the father’s status is confirmed. Maybe she would not have thought the lawyer’s advice was worth the money.

It was an interesting day. I came away with heart-felt sympathy for litigants who are frightened and confused by a, well, frightening and confusing system. I also appreciate the work of judges who have to explain legal principles to unrepresented litigants (without practicing law, of course) and try to help them navigate the system — all under the watchful eyes of other litigants and (sometimes) their lawyers, waiting for their own cases to be called. Finally, I remain convinced that lawyers have an important place in the legal system, and that even when we are under-appreciated we help people far more than they may be willing to concede.

Custody of Grandchild Requires Court Consideration of Best Interests

AUGUST 19, 2013 VOLUME 20 NUMBER 31

National Grandparents Day is September 8th this year. That should serve as a reminder for us to consider changing demographics: grandparents (and great-grandparents) are living longer, and increasingly fractured families are changing our expectations and default assumptions about caring for children.

More grandchildren are being raised by their grandparents every year. In fact, researchers (and U.S. Census Bureau statistics) indicate that about 7% of children are now living in households headed by a grandparent; that is more than double the 3% figure of 1970. That trend appears to have been accelerated by patterns of drug use by parents and by recent economic troubles.

It should be no surprise that problems and conflict between parents and grandparents should also be on the rise, and that the legal system would be involved. A recent Arizona Court of Appeals case illustrates some of the legal principles, and demonstrates how seniors can be involved in caretaking for their grandchildren.

David Brandon (not his real name) is the father of young Ricky; David’s wife (and Ricky’s mother) died shortly after Ricky was born. When Ricky was not quite two years old, his maternal grandmother and aunt (Kathy and Alicia) filed a petition with the Court seeking custody of Ricky.

Kathy and Alicia alleged that Ricky had lived with them since he was two months old, and that David had infrequent contact with him. Grandmother and aunt sought a ruling from the judge that they were “in loco parentis,” (literally “in place of a parent“) with little Ricky. The significance of such a ruling: if the court found that Kathy and Alicia were in loco parentis, under Arizona law they could be given partial or even exclusive custody of the child.

The court conducted hearings over several days. The testimony was contradictory; several witnesses testified for Kathy and Alicia that they were the primary caretakers for Ricky, and several other witnesses swore that David was raising his son without their help. The judge could not decide who was telling the truth, and decided to leave a temporary custody order in place, giving aunt Alicia primary custody for the time being.

David appealed (technically, he filed a “special action,” since there had not been a final order in the custody dispute — but we digress). The Court of Appeals looked at the record and court rulings, and found that the trial judge had failed to complete his responsibility. He had not received testimony on, nor made any findings about, what would be in Ricky’s best interest. The Court returned the matter to the trial judge with instructions to make findings about what would be best for Ricky. Barkley v. Blomo, August 6, 2013.

Strategically this outcome probably favors David, Ricky’s father. That assertion is not based on any knowledge about him or his caretaking abilities; there is a presumption in Arizona law that a child’s best interests are usually served by being raised by parents. That means that Kathy and Alicia will have the burden of proving that continued custody (or shared custody, or visitation) would be in Ricky’s best interests.

We have written from time to time about grandparent custody and visitation proceedings. The legal trend has run counter to the demographic trend: even as the frequency of grandparent custody has increased in recent years, the legal standards have tightened, making it more difficult to secure court approval for those arrangements.

“Grandma, it’s me and I need your help.” Don’t Be Fooled By This Scam

APRIL 2, 2012 VOLUME 19 NUMBER 13
We have been hearing lately about a scam that targets seniors. You get a telephone call from a number you don’t recognize. When you answer, the person on the other line says: “Grandma, it’s me, and I need your help.” You learn that your grandchild has been detained by the police in another country – Mexico, or maybe somewhere in the Caribbean. Something about an auto accident, perhaps, and unfamiliar laws in the foreign country. Your grandchild needs you to wire him or her money to pay for bail.

Significantly, the grandchild pleads with you not to notify his or her parents, because they’ll be angry. If you note that the grandchild’s voice sounds different, he or she will say that the police broke his or her nose during the course of the arrest. If you ask for a phone number, so you can call back, you’re told that this is an outgoing number at the police station and it’s not possible to call back. There’s no way to contact your grandchild again. You are instructed to go quickly to the bank, withdraw an amount that is usually slightly less than $5,000.00 (any more will attract the government’s attention) and arrange for a wire transfer.

If you have grandchildren you probably love them dearly. We suspect that if you got a call from a grandkid in trouble, you’d spring into action. Any questions you might have about the truthfulness of what you’re being told would be superseded by the stress and anxiety of learning that your grandchild was in serious trouble and needed your help urgently.

We know of several instances lately of our clients (or the parents or other family members of our clients) being targeted by this kind of scam. In one case, the grandmother was at Walmart attempting to wire funds when the store clerk alerted her that this was likely a scam and that she should call the grandchild, or his parent, before wiring any money. In another instance, the scam was discovered earlier in the process because the grandmother was known to her family by a nickname, and not as “Grandma.”  She was immediately suspicious.  But, worryingly, in that case, the person on the other end of the line identified herself using the actual name of a real granddaughter.

Of course it is despicable of scammers to play on a grandparent’s love for their grandchildren. Worse yet, they frighten and alarm their elderly victims. Please, if someone tries to spur you to action by playing on your fears, stop, take a deep breath, and apply a little skepticism before you proceed any further.

Other than health skepticism, what can you do to protect yourself? If this happens to you, ask your caller to recall a pet’s name, or a family vacation spot, or something that only your actual grandchild would know. Be cautious, however — the sophistication of scammers has increased as private details become widely available on the internet. In one case, for example, police reported that the caller knew that the victim they were calling had an identical twin, and even that the victim was two minutes younger than her sister.

What if this happens to a family member? If money has been wired, immediately contact the transfer company. If it has already been picked up it is too late, but even if the money is gone at least the authorities will have one more piece of data to stop future scams and maybe even locate your scammer. Contact the FBI or its Internet Crime Complaint Center to file a report. Unofficial agencies like the Better Business Bureau also track scam information and may be able to make other suggestions.

Worried that something like this might happen to a vulnerable senior in your family? Start by locking down their internet vulnerability — scammers often use e-mail malware to collect information about potential victims. Make sure your family member’s internet use is protected. Caution them about social media — trusting seniors might be inclined to share too much sensitive and personal information online.

Make sure your family member knows to contact you before succumbing to a scammer’s pleas for confidentiality. Maybe you even want to adopt a family code word to signal that any caller is truly a family member. Please don’t inject unnecessary fear into your family member’s life, but make sure they have sufficient skepticism and the comfort to contact you or another family member no matter what a scammer might tell them.

Want to familiarize yourself with the kinds of scams working across the internet and through your neighborhood? Check out the Better Business Bureau’s “Scam Aggregator.” It might amaze, alarm and inform you all at the same time.

©2017 Fleming & Curti, PLC
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