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The Estate of B, Contra Costa County, Probate Department.

In law school we all read about Totten Trusts. You can avoid probate using such a trust. It is simply a pay on death (POD) instrument be it a bank account, T-Bill, or whatever.

In 2005 Virginia B (G for grandma) left a substantial gift to her grandson P in the form of two PODs (pay on death instruments), one a bank account and the other a T-Bill.

In 2007, because G was having mental difficulties, she was conserved by this court. The first conservator transferred the PODs into the general conservatorship account. The first conservator was replaced by conservator #2 in 2008. G died in 2009. The PODs were then transferred into G’s estate by the appointed administrator and the attorney. In fact, conservator #2 became the administrator. The conservatorship and the estate of G had the same attorney throughout.

Because of a complicated estate (real estate matter) the estate still remains open at this time. The beneficiaries of the estate were P’s mother and P’s uncle.

P remembered something about his PODs back when G arranged for them as he was close to G and her favorite grandson. He did certain favors for her and helped her out. After G died, P appealed to the conservator and then the administrator and estate attorney for the gifts he remembered his grandmother provided for him. He was put off. In the spring of 2012 he was told to “file a creditor’s claim”. P did that but it was not successful and so he retained the Pedder firm. There were ample funds in the estate to cover P’s gifts.

By going through old records of G, the records of the conservatorship, and the records of the estate, we were able to trace the two PODs into the existing estate. Then on behalf of P, the attorneys filed a “Petition to Identify Heir and for Order to Transfer Said assets to Petitioner”. Along with the Petition was filed an extensive Affidavit by P along with Supporting Points and Authorities.

It was also determined that G’s incompetency did not affect the validity of the TODs because she did them before she was conserved. The California Supreme Court has held that under California Ademption Law, regarding a conservatee who is not competent, their conservator cannot cause an ademption of a specific gift when the incapacitated individual dies without regaining competency [Estate of Mason (1965) 62 Cal. 2d 213, 215]. Since G created the TODs prior to being conserved, she was presumed competent, no ademption. It was also determined that if the property can be traced the devise will not be extinguished. [In re Creeds, Estate (1967) 255 Cal. 8 app. 2d 80, 83] It has long been recognized that even where the particular subject of the specific devise no longer exists as an asset in the testator’s estate, the specific devise is not wholly extinguished if it is merely changed in form.

P’s claim was filed September 27, 2012 and the first meeting before the court was November 1, 2012 and at that time the court took the matter under submission based on the petition, the affidavit of P, and points and authorities and pulled the trigger. Judgment was in favor of Petitioner. He finally got his money. Sometimes the concepts you learn in law school really do exist.