Re: california probate bond question
- From: nospam@xxxxxxx
- Date: Fri, 30 Sep 2011 11:32:28 -0400
On 29 Sep 2011, Kevin Haddock <kevinbanjo@xxxxxxxxx> wrote:
Upon a family member's death, who was personal rep for a
deceased parent's estate, much fraud in the administration was
discovered. The final decree was entered many years ago but he
still held assets of the estate and had never been discharged.
Now I'd like to claim on his bond but apparently it was never
filed with the court according to law and the bond upon qualifying
order.
The only semi-tangible evidence of the actual existence of the
bond is one photocopy of a premium payment receipt with a
policy number, but the surety's research department cannot
find the bond based on that and all the other information I can
give them, and indeed, they say it does NOT look like one of
theirs (however this particular product/branch has been sold
several times).
How do I claim on a bond that cannot be found?
There was also a memo apparently from the estate attorney
requesting the bond be cancelled shortly after the final decree
was entered, but the bond upon qualifying order appears to state
that the obligation of good faith performance and maintenance of
the bond would not expire until all his duties had been performed
according to law.
Is this attorney on the hook? Can one claim against his malpractice
insurance or any kind of bond with him? Or is my only recourse to
sue him and then perhaps his insurance company will settle?
The "McGyver" response to you (quoted below) is as usual a model of
clarity and practicality, as far as it goes.* It is well worth
reading and thinking about even if (provided of course that you not
overlook the entirety of his disclaimer) there was not likely to be
what, however, your posting indicates almost certainly could be any
number of reasons to dispute the pre-suit claim and perhaps especially
defend against the litigation or litigations of the sort you
apparently contemplate that differ from and which might become more
important than only those about which you so far ask yet which
"McGyver" does not address.
If, therefore, you have in mind anything more than only a nominal
claim in light both of the value of the assets at issue and because it
would be realistic to anticipate seriously defended litigation that
warrants a preparatory effort by a plaintiff amounting to more than
some variation on a basically shoot-from-the-hip approach, the partly
confusing while also conclusory nature your query strongly suggests
the desirability of you very promptly consulting face-to-face with a
knowledgeable and practical attorney or, necessarily at the very
least, you being far more factually specific than you so far are in
your posting.
While the "McGyver" response to you in effect assumes that you would
be able factually to elaborate and otherwise support this conclusion
as needed, your use of the word "fraud" without more than a vague
generic contextual reference (i.e., that you indicate only that the
deceased fiduciary was in your opinion somehow guilty of this wrong in
connection with his administration of an estate) and otherwise
entirely without factual specificity makes that word as you so far use
it in your posting no more than a conclusory legalism.
And even if you would be able effectively to describe and prove facts
constituting fraud or which are tantamount to fraud, there is no way
to tell only from your posting what probably would be the best way to
"frame" a legal theory of recovery (both) in a pre-suit claim letter,
if further analysis indicates that such a letter actually is
advisable, or in a complaint in a lawsuit; although the time-related
elements you do perhaps too casually mention suggest the advisability
of giving much more thought to this question, too.*
--------------------------------------------
* Your reference to there being inter-familial tension/disputes
may also raise while in your posting you do not answer the
question whether what you mean by "fraud" may have to do
more with the acting out by the deceased relative or by you
of some sort of familial "bad blood" which, even if somehow
"fraud" related, may have entailed misconduct by him not "in"
the furtherance of estate administration as such.
None of this is to say you are not or will not be able factually to
describe facts on the basis of which it would be correct to argue in
support of the conclusion you assert. To the contrary, it is possible
that you may be able to do this in a manner which, if the other
considerations I summarize below do not become as problematic as may
occur, also would be realistically provable. It is just that you do
not actually do this in your posting and that the "McGyver" response
to you needs to be considered in that light and also in light of the
additional facts, as he has emphasized, that his approach to law
related news group queries like yours is arguendo to posit that a
poster's factual (even if conclusory) assertions are accurate and
provable while (at least in his posted responses unlike how he would
approach and act in an actual attorney -with- client relationship) he
also avoids suggesting questions let alone speculating about answers
thereto that a poster does not explicitly include in a posted query
and relatedly avoids trying to analyze whether, if real life push
comes to shove, the poster's questions and his responses to them (even
those responses are otherwise very cogent and informative as they
almost always are) probably will be the most important ones for the
particular (real life) occasion.
But however you would express a "fraud" related claim in a pre-suit
letter or in a pleading in a lawsuit, your reference to the
substantial lapse of time yet no mention of issues related to that
reference in the "McGyver" response almost certainly will make it
especially important for you to answer the "How?"s and, probably
especially, the specific "When?"s of what you say so passively "was
discovered" in light of you also saying that there was "final decree"
for the administration of your parent's estate "many years ago" so
that the "final" modifier of "decree" and your "many" modifier of
"years" especially constitutes in effect a "red flag of warning" in
these contexts.*
--------------------------------------------
* Given what you say is a "many years" lapse of time, it
may also be significant, and troubleseom, that you do
not quote or even describe any of the particulars of the
"final decree" and that, while it may be that you imply
that you presumably as the now disgruntled beneficiary
were given timely notice of it, you do not say that you
objected to any of its provisions or made any claim as
against the then alive fidicuary to the effect that he
was not abding by that court decreed intepretation of
and directives for the implementation of the underlying
will.
In any (to be attempted) case, even if it otherwise would make sense
substantively to frame a claim in "fraud" (or in fraud related) terms
against the estate of the deceased fiduciary or/and against the
bonding company, your reference to the lapse of "many years" as
apparently applicable to all of the successor to the surety bonding
firm, to the now deceased fiduciary, and to the attorney for that
fiduciary when he acted on behalf of the estate (glaringly!) raises
potential statute of limitations issues.
These issues may even become important if (as, however, you also do
not make clear is the fact) you mean by "assets of the [deceased
parent's] estate" which the recently deceased executor "held" that you
or another beneficiary of that estate learned (exactly, how? exactly,
when?) of some sort of widget now in the possession of whoever is
administering the deceased fiduciary's estate (e.g., an heirloom of
perhaps understandable emotional but maybe not of substantial dollar
value? a Stradivarius violin or Picasso painting, or the like? the
proverbial tin box full of jewelry and cash?), which might be subject
to some sort of not yet time-barred conversion or replevin claim.
But Calif. statute of limitations principles applicable to claims for
conversion can also be complex and therefore uncertain perhaps
especially in/for alleged fraudulent concealment cases. However and
as noted, you do not post any facts that show that there actually was
fraudulent concealment by the deceased fiduciary or, even if there was
such misconduct, about when is the earlier of when you as the
presumably aggrieved party first learned of that misconduct or, in
light of all the relevant facts, when you ought have discovered the
existence of a conversion cause of action.*
--------------------------------------------
* One also cannot tell in this connection only from your
posting whether an argument to the effect that, because
a fiduciary has an affirmative duty fully to disclose facts
which materially affect the rights of the parties, acts by
a fiduciary that amount to conversion of estate property
virtually by definition amount to fraudulent concealment
so that the conversion related statutes of limitations do
not begin to run against an action for breach of fiduciary
requirements until the fiduciary repudiates a claim by
a harmed beneficiary and that that period has not yet
expired; since, among other things, you do not actually
say whether the now deceased fiduciary had ceased acting
in that role and, if so, how long ago.
It also may be that you could have, as you have not yet done, posted
facts on the basis of which, but for statute of limitations
considerations, there would be good reason to conclude that the
attorney for the deceased fiduciary was professionally negligent in
the administration of the deceased parent's estate.
But even if it might be argued that even if Calif. law re. the
limitations periods applicable to attorney malpractice cases was not
sometimes actually bizarre (though it is in some contexts), the
formulation and proof of not time-barred claims based on alleged
attorney malpractice (that might have included a failure to act) "many
years" earlier can also be complicated at best. Yet your posting
indicates that you are not aware of much less that you have carefully
thought about these considerations.
And while one might agree at least as an initial tactical matter with
the tough-minded approach suggested by "McGyver" viz-a-viz the bonding
company (as, presumptively, I do in part), the question remains: What
will you do, and how, if the bonding company contends that as a
would-be (and especially if as an actual) plaintiff, you have the
burden of proving all the elements of your claim sued upon? But your
posting does not indicate that, if you proceed on a D.I.Y. basis, you
will be equipped to use pretrial discovery procedures to your
advantage or otherwise to develop attempted "end run" ways to address
burden of proof requirements (e.g., trying to convince a court to make
adverse inferences from the failure if it comes to that of the bonding
company not being able to produce a key document its predecessor in
interest had prepared).
Perhaps even more important in this connection in pre-litigation
terms, your posting does not make sufficiently clear how thorough your
investigation has been. You do not even say, f'r'instance, that you
have carefully examined the full contents of the court files
containing the papers served and filed re. the administration of
deceased parent's estate rather than perhaps just having looked at a
docket or having relied on a maybe cursory look by a court clerk.
Nor do you say whether you have looked in other more or less
contemporaneous court files for the text of a surety bond from the
same bonding company so as to provide you with a probable estimate
about what the bond in your parent's estate (if there was one)
probably said about, e.g., duration and claim-making requirements;
although this sort of information can be very helpful in formulating a
claim and in drafting a complaint. E.g., it may be that the scope of
the particular bond to which you refer may not trigger surety
liability unless/until the underlying claim as against the bonded
actor (i.e., the now deceased allegedly "many year" ago wrongfully
acting fiduciary) is itself establishable and established, which may
not be possible if (even if he had acted "fraud[ulently]") a claim
against him is time-barred when the claim against the bonding company
is first made. etc., Etc., etc.
In these latter respects, too, however, this is not to say that there
are not refutations of these sorts of defensive claims if they are
raised. It is just that neither your query in the form you post it nor
the (otherwise completely well-intended and, as I say, otherwise well
stated) "McGyver" response adequately considers these issues.
========================================================
* On 29 Sep 2011, McGyver <McGyver40@xxxxxxxxxxx> wrote:
First, sue the estate of the personal representative. Try to persuade
all heirs to join you.
Second, filing a claim on the bond is easy: Simply file the claim.
Don't worry about finding the actual bond or proving that the bond was
issued. Just use a letter and make your claim. If some particular
form is needed, the company will tell you. If so, fill out that form
and file it. The fact that it contains blanks won't stop you.
Use Certified Mail, Return Receipt Requested for your claim letter.
Keep a copy of the letter and write the Certified Mail Item Number on
it, on both your copy and the one you mail. Keep the return receipt
and the post office receipt showing that you mailed it.
Keep the letter short and businesslike. Send a copy of the payment
receipt. Keep the original. The fact that you know which surety
company was involved is half the battle. Your possession of the
premium payment receipt is the other half. If they can't find the
bond file, tell they to pay you anyway. When they refuse, sue them.
When they tell the judge that they can't find the bond file, you say,
"Irrelevant. It's their file, not mine. I don't care if they find
the bond file. My premium payment receipt with a policy number is my
evidence that there is a bond and they have no contrary evidence, so I
win."
Yes, sue the attorney too. If the bond was actually cancelled and if
you don't win your lawsuit against the bonding company, the attorney's
insurance company will pay off. Sue the attorney regardless of
whether you collect on the bond, unless the bond is big enough to
fully compensate you and all other heirs.
Fourth, have your probate attorney file a motion with the probate
court to re-open the relative's probate case. That might not be
possible, but try. If it works, that will get you appointed as the
personal representative and that gives you rights concerning the
assets. If the case cannot be reopened, at least you will have proof
that it cannot be done.
This answer must not be relied on as legal advice for the reasons
posted here: http://mcgyverdisclaimer.blogspot.com . And I am not
your attorney.
.
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