Re: california probate bond question

On 09/30/11 1:49 PM, Kevin Haddock wrote:
On Sep 29, 5:15 pm, McGyver<McGyve...@xxxxxxxxxxx> wrote:
On 09/29/11 3:29 PM, Kevin Haddock 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?

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.

McGyver

Thanks for that excellent answer. I liked it a lot.

Here's a couple follow ups if you don't mind:

Seems I've read that you have to really thoroughly present your claim
to the surety, Like they may need to verify certain things,
statements of witnesses, etc...

Of course you must satisfy the surety that your claim is valid. Of course they will require that you verify your allegations. They will make you jump through hoops to some extent because if you fail to on a significant hoop, they won't have to pay. That's understandable and legitimate.

Some of these frauds my PR relative
did were cut and dried, and some are only because of the otherwise
unexplainable behaviors of potential witnesses (like calling the cops
on me when I did nothing but leave a calling card asking if they knew
my relatives having never even met the proposed witness, then later
finding out they lied about a material issue over our subsequent
telephone interview), having a perfectly seaworthy boat I moved into
the area so I could have a base of operations and to monitor the
progress of my PR relative, sink w/o apparent explanation on Christmas
day, etc... If I send this simple letter as you have proposed will
the surety get back a hold of me to get the evidence to fully develop
the case, or should I include everything I have as an exhibit to this
(thereby not simple) letter?

Don't agonize over the difficulty of proof. Make your claim, get through the hoops as best you can, have an attorney file a lawsuit if you can't collect in a reasonable amount of time after reasonable effort.

The claim letter should briefly describe all damages suffered. Very briefly. You don't have to prove anything in the claim letter. It is just a demand. They will tell you what further information or documents they need.

Also it seems I read that the surety should make the award for
whatever they think is fair and any amount over the amount of the bond
becomes an automatic judgement against my PR relative's estate (and
potentially his successors and any estates commingled with his). Is
that your understanding also?

Your claim letter should demand the full face value of the bond. You won't be able to calculate the exact amount that each bit of fraud or Dereliction has cost you. That's good. That is what justifies your demand for the full face value of the bond. Since you can't find out the face value of the bond, Do a little research to find out how much is normally required in your jurisdiction. You will need an attorney in any case to go after the estate of the personal representative, so the best procedure is to hire that attorney now and let that person choose chose a amount of the claim. The cost of that assistance will not be much.

The surety has the right to offer a settlement of less than the full amount. If that offer is too low, you negotiate or provide more evidence or sue them.

If the surety does not settle the claim in good faith, is that grounds
for a bad faith lawsuit against them wherein I might be able to get a
substantial law firm to assist on a contingency (as perhaps the
potential of a considerable punitive damages award)?

Yes.

I was reading the other day, in Witkins I think, that the enforcement
procedure is to go make a bunch of recordings in the counties where
principal's (and their successors) property is located and these
become automatic lis pendens and then to commence suit. However,
couldn't this just be done and then the claim to the surety be
presented (if, as I allege above, any overage is an automatic
judgment)?

Nope. The lis pendens procedure means that litigation is pending concerning entitlement to the property. Until the litigation is filed a lis pendens filing would be improper. The lis pendens procedure is valuable against every defendant except the bonding company. The point of a bond is to provide a fund of money that you can claim without the risk that the fund will become unavailable during litigation.

If yes to the previous question, then perhaps petitioning the local
court for attachment of principals/successors personal property
pending outcome of the claim might be available also?

See an attorney immediately about all of this. If there are assets that could disappear when the defendants find out about your lawsuit, your attorney will file all proper lis pendens documents. Don't try to do it yourself.

Just asking for opinion for potential strategies, not gospel. These
successors have been very abusive, and in my opinion even criminal,
and I don't want to leave any more of their resources dangling out in
the wind for them to collaterally attack me with than necessary if I
can help it.

Reducing the availablilty of funds that the defendant can use to defend themselves against you is not a proper objective. If a particular asset can be properly attached because it is the subject of the litigation or because you have evidence that the defendant will be insolvent after judgment, attachment might be proper to prevent defendants from improperly making the asset unavailable. Your attorney will make sure you don't blunder into wrongdoing of you own.

Thanks in advance.

This answer must not be relied on as legal advice fo the reasons posted here: http://mcgyverdisclaimer.blogspot.com . And I am not your attorney.

McGyver
.

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