May 6, 2024 • 42 mins
Uncover the intricacies of family estate planning with the expertise of the Honorable Judge Glen Reiser, who joins us to navigate the complex waters of trusts, probate estates, and guardianships. Judge Reiser, with his two decades of bench experience, dissects the role of successor trustees, the challenges they encounter, and the nuanced matters of mental capacity that are crucial in the drafting of sound estate plans. Our conversation takes a critical look at the common yet potentially problematic practice of appointing children as trustees and offers a cautionary tale through a riveting case from the San Domingo Valley.
Estate disputes can be as intricate as a fine tapestry, and sometimes they require a mediator's touch to unravel the knots. We explore how mediation has evolved within California's trust law, particularly after a landmark case that mandated court-ordered mediation in trust disputes. Judge Reiser provides a behind-the-scenes view of mediation's role in alleviating court dockets and the personal effects it has on family dynamics. We also delve into the balance lawyers must find between advocating for early dispute resolution and preparing for trial, bringing strategy, and emotion to legal proceedings.
In the realm of estates and trusts, professional fiduciaries stand as the unsung guardians, ensuring fairness and maintaining peace within families. Judge Reiser sheds light on the demanding work of these individuals, who navigate the treacherous waters of family dynamics, financial responsibilities, and the ever-looming threat of litigation. Through personal anecdotes, we underscore the importance of clear communication and equitable distribution in safeguarding family unity across generations. Judge Reiser's insights underscore why professional fiduciaries are pivotal in trust administration, especially in a landscape marked by legislative shifts and the complex intricacies of trust law.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:27):
Welcome in my name is Ron Greenwald and this is the
Ron Greenwald Podcast, and thepurpose of this podcast is to
bring you great stories andgreat insights to help you
hopefully have a family thatstays together and maybe, after
you're thinking about what'sgoing to happen to my children
and grandchildren andgreat-grandchildren after I pass
(00:49):
, will they have Thanksgivingtogether, will they have
Christmas together, will theycelebrate Passover together?
And I am thrilled this probablycould be one of the most
important podcasts you everlisten to, because you are going
to be listening to theHonorable Judge, glenn Reeser,
(01:10):
and he has spent 20 years on thebench in the County of Ventura
as a probate estates, trust andguardianship judge, and if you
think it's a privilege to benamed as the successor trustee
to your family's estate, you maywant to listen very carefully
(01:30):
to what he's about to say.
Judge, it's an honor, a truehonor, to have you on with us
today.
Thank you for joining us andwelcome.
Tell us a little bit about youbefore we get into the questions
.
Speaker 2 (01:43):
Good morning, ron.
It is a pleasure to be here.
Thank you for the invitation.
So I'm a retired judge.
Actually I was a litigationlawyer.
I did a lot of trial andappellate work for more than 20
years, but that was in adifferent century with a
different cadence of life.
It would be.
(02:05):
I'm not sure I would ever wantto be a lawyer today.
It's very chaotic.
And then I was a judge for morethan 20 years, as you stated, in
Ventura County, most of whichwas trust probates and
conservatorships exclusively.
I did retire five and a halfyears ago.
I worked with Jams, which is anADR provider.
(02:26):
It's a very large internationalcompany, but I do exclusively
now trust probate andconservatorship mediation and
some would call reference work.
It's continued to do trials forvarious trial courts in
California and, through the endof 2022, at least, I was the
trainer for all of the judges inCalifornia certainly a trainer
(02:51):
across the board in thedisciplines of trust probates
and conservatorships, so I knowmost of the judges in California
who do this.
It's a very judge-centricprofession and so you never know
what's going to happen in thetrial court, but there's some
rules that you can typicallyrely on.
Speaker 1 (03:14):
So again, the listening audience is certainly
a mix of professionals who knowyou very well and obviously the
layperson who is going to seetheir estate planning attorney
and want to get those documentsin place.
If you could say to the estateplanner the one who writes the
(03:35):
documents, given your 20 yearson the bench, what is the
overriding, overarching themethat causes them now to come
into arbitration and mediation?
That you're seeing in your lastfour years with JAMS.
Speaker 2 (03:51):
Well, if it's been five and a half years, five and
a half, sorry.
I wouldn't have a job if itwasn't for estate planners.
So thank you all to estateplanners for you know, giving me
this encore occupation, if youwill senior who comes into your
(04:32):
office has what you might callfull contractual capacity and so
appreciate that.
You know, if you are not ageriatric, psychiatrist or
psychologist which I think noattorney in California is you
may want to opt for atestamentary capacity, which is
a will rather than a trust,because the trust requires
contractual capacity and a willrequires only testamentary
capacity, and the chasm betweenthose two concepts is so massive
(04:57):
that if you want to err on theside of caution, you would go to
testamentary capacity.
Speaker 1 (05:03):
And what do you say to them about naming children as
successor trustees?
Speaker 2 (05:14):
So, as a professional mediator who does trust cases
virtually every day, I don'tthink I've ever met a trustee in
litigation who says gosh, I'mglad I was appointed trustee.
They all hate it.
It's a thankless task, it's acurse to most because there's no
glory in it, and, at least inmy world invariably you wind up
(05:37):
getting sued.
So yes, I understand there arefamilies that get along and
everything works perfectly, butI never see those.
I only see the other ones.
Speaker 1 (05:47):
Ron.
So, like today, you have a caseafter this, and can you I mean
obviously without giving thenames away can you give us a
little bit of background of whatyou're going to be facing today
?
Speaker 2 (05:58):
Well, the case isn't secretive, because I went to
trial, the estate planner wrotean estate plan and the husband
and wife and the wife passedfirst, and then the husband,
reading the estate plan,followed the letter of it and
reappointed the assets in waysthat the wife's children were
(06:23):
unhappy with.
And so the wife's children wentto court and asked the judge.
They said mom never would haveagreed to this.
So can you please reform thistrust?
And guess what the trial judgedid?
Do that?
Uh, but years have passed sincethe, since the trustee had
acted, and so the beneficiary,who's the husband's son, now
(06:49):
supposedly has to return themoney that he received.
And the trustee is I think theword is heaped with trouble,
because hundreds of thousands ofdollars were spent litigating
unsuccessfully.
So the trustee fees, theattorney fees, they're all in
play both ways, and so my jobtoday, obviously, is to solve
(07:12):
that puzzle and to send themhome smiling, or equally
unsmiling as the case may be, isit mostly equally unsmiling?
Speaker 1 (07:20):
Is that pretty much the way it goes after a day with
you, judge?
Speaker 2 (07:26):
Yes, At the end of the day everyone's equally
unsmiling.
But the next day, you know thecelebrations begin, you know the
confetti is thrown becausepeople can then look forward to
the rest of their lives, asopposed to waking up in the
middle of the night every nightworrying about how they answered
four minarogatory 17.2.
Speaker 1 (07:47):
What is that 17?
Oh, I'm sorry.
Speaker 2 (07:51):
There are certain ways to litigate cases and it's
very work and litigant intensive.
So there's discovery devicesthat lawyers, to satisfy the
standard of care, have toutilize, which requires
basically no stone unturned interms of recreating, in this
(08:16):
case, accountings and expensesand everything else.
Speaker 1 (08:20):
So I'm always interested.
You've spent over 10 years onthe court, on the court, on the
bench, as a probate of statesand trust and guardianship.
Yes, do you think you've heardit all, or is there one case
that you go?
This was the topper of thetopper.
Speaker 2 (08:39):
Ron, you think you've heard it all, and there's
certain patterns that repeatthemselves, but there's always
something new and novel everyday.
Every case is different, everyfamily is different, every trust
is a snowflake.
There's no two trusts that arealike, and so that's.
The family dynamic is thedriving force in most of these
(09:03):
cases and the relationshipsdrive these cases.
Speaker 1 (09:07):
So every case is different and, factually, most
things I've seen, yes, so do youthink you have an honorary
degree in psychology and the law, or just having listened to?
Speaker 2 (09:27):
these stories.
Well, it's interesting becausethe um, the work of mediation,
of being a mediator, is adifferent skill set than being a
judge, because a mediatordoesn't pontificate, a mediator
listens and creates rapport andthen creates resolution and that
is, you know, at the top of thelist, is psychotherapist
(09:50):
probably, then Rabbi, priest,minister, and then there's a few
other jobs and then judges sortof.
You know, I don't know valuelevel, part of the lower echelon
of skills you know at anevaluative level, part of the
lower echelon of skills.
Speaker 1 (10:08):
So, in terms of, is it the money or is it the
sibling rivalry that startedback when they were four years
old and the sister got thrownoff the tricycle and now I'm
gonna come and get you, or is itthem?
Speaker 2 (10:25):
is it the money?
The money is the catalyst, butit's not the money.
Is the relationships right?
Is the lifetime of expectation,of hope?
You know dealing with siblings,of dealing with step parents.
(10:51):
You know control power, all ofthose things are at play.
And so it's interesting.
You ask that because when Ifirst took this assignment, I
had to go to the classes that Itaught for many years after that
and I had a commissioner fromContra Costa County and the the
Don.
And Don said Glenn, you're onlygonna see three kinds of
(11:11):
litigation cases.
You guys see the trustee, youcan't be trusted, right.
You're going to see the, thewicked step mom, step step-dad
cases, the blended family cases,and then you're going to see
the state called them the pinkbicycle, blue bicycle cases,
where you know people, you knowchildren compete with one
(11:34):
another in one form or fashionand 50, 60 years later it plays
out on a stage of litigation andmediation out on the stage of
litigation and mediation.
Speaker 1 (11:44):
So again, I, as you know, what I've done for the
last 15 years is heard a lot ofthese in the.
I mean I do real estate, so Iget to hear a lot of these
stories because I am notcharging by the hour when I'm
out in the property and I justgo home and I'm going.
Really, I mean, as a judge, howdo you just not go?
Speaker 2 (12:02):
people get a clue because everyone
constitutionally has a right topetition for the redress of
grievances, and appreciate thatat most estate plans, at their
inception, are prettyegalitarian, where you know mom
and dad, they've got two kids,three, three kids, seven kids,
(12:24):
ten kids, and everyone sharesequally.
But then you know, invariablyone of the spouses passes first
and then life goes on for thesurvivor, and how that life goes
on often means a change, atweak sometimes, sometimes a
larger change in their estateplan and in a survivor's trust,
(12:48):
if they have a sub-trust.
And so when that ultimate, Imean, for example, right in many
families there's a lot ofchildren that they.
You know America's not like itwas 100 years ago.
People disperse, the childrengo on, they marry, they have
(13:10):
kids, grandkids, they're livingtheir lives.
Quite often one child stays hometo take care of the surviving
parent, either nearby or in thefamily home themselves, and
everybody else is out enjoyingtheir lives, and that person has
a very difficult job of takingcare of an elder right, it's not
easy and quite often they'redoing, you know, what would
(13:31):
otherwise be nursing care,caregiving services, writing
checks, you know, taking mom ordad to the physician's office
offices speaking of my mom,right and and there's a lot of
work there and the estate plan,you know, as that person gets
older, can change a little bit.
You know, dad, you know, don'tyou think I should get a little
(13:53):
more for doing this?
Or just you know, maybeunilateral from the parent
themselves?
And so when the other siblingssee this At their parents end of
life, they go well, dad or momlike me best, or certainly equal
, not less than him, and it'sodd right somebody has the
(14:15):
gloves come out undulyinfluenced the parent, or there
was a lack of capacity, or both.
Speaker 1 (14:21):
So you're very well known in the in the legal
community for Breslin and youpenned an article, you
co-authored an article inJanuary.
A little bit about that,without going deep, deep into
the weeds for the listeningaudience, and again, remember
I'm telling the lead of thispodcast is you really think you
(14:42):
want to be named a successortrustee?
And so tell us a little bitabout that ruling and where it's
going.
Speaker 2 (14:54):
So with that again getting into the weeds.
In California, historically,mediation is voluntary.
Alternate dispute resolution isvoluntary, and the theory was
that the courts are supposed tobe free, even though technically
(15:14):
they're not.
There's fees that are paidconstantly, but courts are
supposed to be free.
So if there's mediation it hasto be something outside of the
court system and voluntary.
In the civil world that wasalways the case.
There was this unusual case thatarose out of the San Domingo
Valley in Santa Barbara Countywhere the litigants, even though
(15:38):
they were in court for trial,were outside the judge's
presence and they reached asettlement where, you know, a
lot of the family membersweren't there and the court
approved the settlement eventhough it adversely affected the
non-present family members tothe tune of three-quarters of a
(16:00):
million dollars in attorney fees.
And they objected and the Courtof Appeals said too bad, you
know you could have litigatedthe case.
You didn't, these other peopledid, and so if this settlement
adversely affects you, that's,that's your problem.
You didn't participate in thecase, and and so my brain got
working and I thought well, whatdifference does it make if
(16:22):
you're actually in thecourthouse with no judge there
or if you're in a court orderedmediation and so, recognizing
that it had to be in what wecall the tri-counties the 805,
because that was the appellatecourt that made that decision we
waited for the we me and somecooperative attorneys waited for
(16:45):
a case in which we could try toextend that doctrine to a
mediation, and I wasn'tintending to get a published
decision out of it.
But what did happen when Isettled the Breslin case was
that Breslin case had 24beneficiaries.
Only five showed up at mymediation, 19 did not, and in
(17:08):
that case it wasn't familymembers, it was Catholic
charities who threw each otherunder the bus, and so the five
who showed up got paid and the19 who didn't didn't, and Court
of Appeal said yeah, well, youknow you should have gone to the
mediation too bad, and so italso.
(17:30):
The case also said that in trust, uniquely, a court can order a
case to mediation, and so thatcase was published a few years
ago.
It's still the law.
Every trial judge in Californiautilizes it to move cases off
their docket, because there area plethora of trust and probate
(17:51):
litigation cases around thestate, more than you could
imagine, and so they're clearingtheir calendars by ordering
cases to mediation.
And if people don't show up,even if they're not litigating,
even if they don't have lawyers,bad things can happen.
That's not saying they will,because they may have allies
within the litigants who don'tthrow them under the bus.
(18:13):
But you know, if there's a fewhundred thousand dollars of
difference, that needs, theyneed to resolve the case.
Well, guess who takes that hit?
Speaker 1 (18:22):
right the person who's not in the room.
And so the article in Januaryin terms of a seamless fabric
need tailoring.
What again?
As a layperson, what was themeaning of that?
Speaker 2 (18:36):
In terms of the tailoring of a settlement.
It's controversial.
Speaker 1 (18:43):
In.
Speaker 2 (18:43):
California.
I do work all around the state.
In Northern California andSouthern California lawyers
litigate these cases differently.
Right In Northern Californiathere's a tendency to push a
case up to trial, if they can,before the case goes to
mediation, because then thelawyers know everything there is
(19:05):
to know about the case and theycan properly, you know, advise
the client.
That's the theory.
Right in Southern California,more often than not we litigate,
we mediate rather early to save, you know, six to seven figures
in attorney fees and to try tosort of do discovery on the fly,
(19:25):
if you will, to get cases, youknow, resolved sooner rather
than later.
Idea that a court can order acase to mediation and in essence
take the this stratagem out oflawyering.
(19:48):
In that regard causes rankles alot of attorneys and so there's
still some a lot of pushbacktoward that in the attorney
sector.
Though, as you can imagine,because it takes cases off of a
judge's desk, there's not asmuch controversy in the in the
jurisprudence in the judicialsector.
For so many reasons, butprobably more than anything else
(20:11):
, all of these cases are there'sno juries in these cases.
Generally these are all judgecases because of the way trust
law evolved over the lastthousand years and so to
actually write an opinion aftertrial.
It takes a judge dozens ofhours, often weekends, nights,
(20:32):
just to write an opinion in asingle case, and so to take that
off of a judge's desk is agodsend to my colleagues, but to
the lawyers.
Forcing a case into mediationwhen they don't think they're
ready is often not helpful tothem.
Speaker 1 (20:54):
So I am curious how many cases come across your desk
on a weekly basis.
Speaker 2 (21:04):
Curious, how many cases come across your desk on a
weekly basis and then is therea criteria that you use to say
yes or no.
Obviously so you know ADR isexpensive to some degree, but
when it's the trust, you know,know most houses in California,
even if they're old houses,depending on where I'm located
it could be a million dollars ormore.
(21:24):
And so when people pass that,these estates, you know in
addition to the real property,you know they're generally seven
figure cases, sometimes eightfigures, sometimes nine figures,
sometimes 10 figure cases,sometimes eight figures,
sometimes nine figures,sometimes ten figure cases.
(21:46):
There's no criteria per se, butI do three to four mediations a
week.
I spend a whole day with thefamily, and sometimes into the
evening and sometimes late intothe evening to get it resolved,
but they're pretty pleased thenext day.
Speaker 1 (21:57):
Are you issuing the?
I mean, I was like, are youissuing the results of that day
or is it?
You sit on this and I mean howdo you?
How does your day go?
Speaker 2 (22:09):
It's a great question .
No one's ever asked me thatbefore.
So the morning is about meetingpeople and cause.
Every room is different, everyperson's different, everyone's
needs, interests, challenges aredifferent, and so I spend most
of the morning figuring peopleout and getting to know who they
are, where they're from andwhat their life is about, so
(22:31):
that I can craft a result thatmakes a material difference in
their life.
I mean that's important, right,that makes a material difference
in their life.
I mean that's important, right,and I mean, even if it's a
trustee being named, they justdon't want the angst and anxiety
of, you know, having somebodychase them for you know,
(22:54):
millions of dollars for doingwhat they thought was the right
thing to do.
Between you know beneficiariesthemselves, it's certainly
better to have their parents'inheritance be distributed to
them rather than to mycolleagues in the legal industry
, for whom there are a lot ofexperts.
They know what they're doing.
They're fantastic lawyers.
They're the best lawyers thereare in terms of, you know,
(23:16):
retaining a professional, butthey are specialists in the
trust and probate world andthey're very good and they're
very expensive, just like I amright.
So that's how it weighs out.
Speaker 1 (23:30):
Speaking of great legal minds here in San Diego.
Judge, when I had the privilegeof knowing you were going to
come on the podcast, I talked toa couple of my friendly
attorneys and they wanted me toask you about a couple things
and again, without going intothe weeds for the layperson
listening audience.
One was probate section 17206,and is that a government
(23:55):
overreach?
And what is your response tothat Judge?
Is that a government overreach?
Speaker 2 (24:02):
And what is your response to that?
Speaker 1 (24:04):
Judge what is 17,.
Probate section 17206?
.
Speaker 2 (24:09):
So appreciate that the trust courts were created in
the 1100s by the king ofEngland right To allow for
equitable results, because thelaw courts when people followed
rules it didn't always work.
Equity to the litigants.
And so the King, when theCrusaders were coming back after
(24:31):
you know, being in the MiddleEast and doing whatever deeds
they were doing there, theycouldn't get their lands back
and so they petitioned the king.
He created a chance to record,which is an equity court, and
the Lord High Chancellor inEngland still presides over
those.
That is the trust court inAmerica, that's the trust court
(24:52):
in every common law country thatderives its jurisprudence from
the English system.
And so these are very.
These cases are all about goodconscience.
So all the years I taught thejudges they would ask me
questions and the response was,in the final analysis, when you
(25:13):
go to bed at night and your headis in the pillow, do you feel
you did the right thing?
And if their answer to that isyes, which it almost always is
not always, but almost always isthen it's fine.
The problem is that quite oftenthe legal doctrines you know
aren't synchronous necessarilywith that result, and so there
(25:37):
are three cases in Californiawhere you know, things didn't
fit neatly into the statutes.
Two of those cases were mine,one was Breslin, the third one.
The first one was actually acase out of Los Angeles called
Schwartz v LeBeau when I waslitigating, which is in a
different century.
(25:58):
Right, it was very difficult toremove a trustee because the
statute had some very specificcriteria and it was hard to
qualify for the criteria even ifthere was, you know, conflict,
serious conflict with thetrustee, as long as the trustee
could say I can still properlyadminister the trust.
(26:20):
That the hostility was wasnever sufficient to remove a
trustee.
So a case came out, schwartzversus LeBeau, where the trial
judge in Los Angeles said youknow what?
I just want a new trustee, I'mnot comfortable with these
allegations.
And it was appealed and theCourt of Appeal in that case
(26:41):
said well, probate code 17206,all probate code 17206 is is a
plenary section that says in forus, the trial courts can use
whatever procedure they need toaccomplish their purposes.
This is very generic sort ofyou know, un-cathered allowance
(27:01):
to, in my mind, to createprocedure that causes, that
allows the court to function asa court of equity.
So this court, this courtversus LeBeau, says yeah, we've
read the statute.
But you know what you know.
If the judge wants a newtrustee, fine, because that's
within the court's power.
Well, you know, it's a case Itaught for years because
(27:26):
obviously it's a judicialempowerment case.
That was, you know, in maybe2008.
And then in 2011, I had thiscase called Christie v Kimball,
where Danita Christie bless herheart, I hope she still living
uh was handling, not as atrustee, but some of mom's stuff
.
And I said, mrs Christie,you'll need to account for that
(27:49):
in statutory fashion.
And she said you can't make mebecause there's no statute that
says I can do that because I'mnot the trustee.
And I said well, take it upwith the Court of Appeal.
And the Court of Appeal thensays they said two things.
First of all, in the firstsentence of the published case,
(28:09):
it says that in trusts andestates, there's nothing more
elegant than an accountant,which I thought was kind of a
lovely, more elegant, elegantyes, interesting, kind of an
interesting entree.
Well, because it gives you apicture a very detailed, you
know, this is like an MRI of anestate right.
(28:29):
And so they relied on 17-206and said, hey, if the judge
wants to get an accounting, it'swithin the judge's power.
And then, most recently inBreslin, the court just goes,
yeah, 17-206, if the trial courtin a trust case wants to order
a case to mediation, that's17-206.
So is it a usurpation of thelegislature?
(28:55):
I don't think so, necessarilyright.
It's just that when you managea court of equity, you just have
to have a little bit offlexibility to do things that
make the court operate smoothly.
Unlike, unlike, a civil caseright, it's in a lawsuit
typically, when I would teachjudges the crossover from
probate to civil and vice versa,because not all of my judges
(29:18):
had ever had a civil backgroundright, so it was helpful to give
them some civil courses.
I portrayed a trust and probatecourt as a PT boat which could
zip around, and civil court asan aircraft carrier that would
take 25 miles to turn around.
(29:38):
And so that's the idea is trustand probate courts, because
especially in probate, whereyou're supposed to open and
close the probate estate withina year, a year and a half if
there's a 706 estate tax return,that they need to do things in
(30:00):
an abbreviated fashion.
Speaker 1 (30:03):
So you spoke about accounting quite a bit and again
for the layperson who thinksthey want this job, let's talk a
little bit about how many ofthe cases that you come across
in jams or on the bench had todo with lack thereof accounting.
Speaker 2 (30:24):
So many, I mean every case.
I would say accounting in someform or fashion is part of every
case, right?
Because accounting is thetrustee doing her or his job.
Because accounting is thetrustee doing her or his job.
And when people want to seewhat's going on, if there's been
(30:46):
a formal accounting, typicallythere's objections to it for
whatever reason, and that in andof itself is a prospective
trial, even if it's a capacity,undue influence case challenging
a testamentary instrument, atrust or a trust amendment.
Most often people want to knowwhat's going on in order to
(31:09):
close out the case.
Right, you know what's been.
How much is there?
What's the money been spent on?
Should we discharge the trusteeor not been spent on?
Should we discharge the trusteeor not?
Speaker 1 (31:24):
So you know part of my job, I think every day is to
exculpate a trustee at somelevel.
And just again, I'd like you toexpress your thoughts on the
word co-trustee.
Speaker 2 (31:35):
Well, if there's only one trustee, ron, there's never
going to be a tie in voting,and so.
But the problem with one is,you know, a lot of times there's
multiple children, a lot oftimes there's differences of
opinion, the one who isappointed, if there's one.
(31:56):
You know there are people wholove control and they love being
able to, you know, exercisethat control in ways to, you
know, to sort of lord that overtheir siblings in many cases, or
their step siblings or theirstep children, no-transcript.
(32:46):
And then many cases I have twoco-trustees who despise each
other and they want each otherthe other one removed.
Speaker 1 (32:54):
I'm also interested in your time on the bench and
your time with JAMS.
You really have seen thematurity in the state of
California of what we callprofessional fiduciaries
administrators.
What are your thoughts on thatprofession moving forward over
the next 10, 20 years?
Speaker 2 (33:14):
So the most thankless job, I think, is the
professional fiduciary.
It's an extraordinarilydifficult job.
They have to interface directlywith family members and
caregivers and financialinstitutions and often lawyers.
And you know, can be charitieswhoever has a beneficial
(33:37):
interest can be charitieswhoever has a beneficial
interest.
A lot of their job involvesconservatorships, which the
legislature is making more andmore difficult by the day, and
at the same time their licensesare.
Always people get unhappy with afiduciary and they threaten to
(33:59):
sue them and then the licenses,you know, become jeopardized.
It's, it's, a very difficultprofession.
It's not getting any easier.
I respect all the professionalfiduciaries in california.
They're fabulous.
Uh, you know, in in the olddays, you know, quarter of a
century ago or more, uh, you hadto have really thick skin to be
(34:20):
a fiduciary probably still do,because you have to be tough and
there's just so much going on.
If you have a vibrant practice,like many of my professional
fiduciaries do, the demands areceaseless and if you don't call
(34:42):
somebody, be back right awaybecause of, you know mom's
canker sore then you know you'regonna possibly wind up in court
because of it.
And so who wants to?
You know who wants that job.
Speaker 1 (34:56):
That is a thankless job, so.
I do have to.
I'm going to digress a littlebit.
I know you got yourundergraduate at University of
California, santa Barbara, andyour law degree at UCLA, yeah,
and I just always ask, andpeople that went to UCSB, what
was Halloween?
Was Halloween like?
Was Halloween when you werethere?
(35:17):
Like it became back like 20, 30years ago?
That's a totally crazy question.
Speaker 2 (35:30):
There was nothing special about it.
Everybody was doing.
You know, it was a very socialenvironment when I was there.
It was a very socialenvironment when I was there.
My theory was if you went toclass you would get a B, and if
you read the book you would getan A.
Otherwise just enjoy your life.
Speaker 1 (35:48):
Well, I'm going to go off on a very personal story.
I won't share it here, but whenyou do come to San Diego next
time you're in San Diego, I havea great UCSB story.
I have a son who is now 38years old, so he was in college.
He wasn't at UCSB, but he wentto UCSB to visit friends.
(36:09):
So 20 years ago, when he wentto college on in the Halloween
period of time.
So I'm not even going to.
People can call me and ask methe details.
Speaker 2 (36:26):
Every you know it's now very difficult to get into
UCSB and it's a very prestigiousuniversity and I understand
students studied very, very hardthere.
It's just that 50 years agothat was not the rule.
Speaker 1 (36:37):
Judge, we want to wrap up.
I know you have a busy scheduleAgain being a judge.
I want to allow you that finalgavel and give pearls of wisdom
both to the legal profession, ifyou can kind of blend the legal
profession and the layperson.
So I don't think there's evergoing to be a shortage of work
for the litigating attorneys andfor you.
(36:58):
But if we can help somebodyagain write that plan so they
don't end up in litigation, I'mgoing to leave the last word to
you so is that loris, testators,right people who sign trusts or
(37:18):
wills, get it.
Speaker 2 (37:20):
You want to keep everything in the family, but
think about using a professionalfiduciary as the trustee,
because when you pass,shockingly, because you're not
going to believe what I'm aboutto tell you, the glue that holds
the family together will havefallen apart.
(37:42):
And while there may bealliances among your children,
it's not always kumbaya acrossthe board, and generally it's
not, and the ones I see it'snever the case.
And so, that being said, thinkand I get it there's an expense,
not a huge expense, but there'san expense associated with
(38:03):
professional fiduciary that yourchild may waive as a trustee.
But if you want your childrensuing each other after you're
gone, then you know, either, insome cases by appointing one
child as the Lord, but in many,many, many cases, if you don't
(38:28):
give ifs, equally you're askingfor trouble, and especially if
everything is not cleared withthe kids beforehand, because
people get surprises after theirparent dies and kids are not
going to blame you.
I mean, I'll blame you inmediation, but your kids are not
(38:48):
going to blame you, and sothey're going to blame the other
children.
And so you just have toappreciate that, even though.
Family happenings at the housenow are great and everybody
comes and the grandkids come andit's all wonderful, the heart
(39:09):
of that dynamic.
And you've worked hard yourwhole life and you've saved up.
I know it's for a rainy day,but ultimately for the
children's inheritance.
And if you want that to go tolawyers, be my guest.
(39:32):
You know, I used to be a lawyer, you know, and so many
specialists are really good atwhat they do.
But if you want your state topass peacefully, you know,
resist the temptation,especially if you're widowed, to
(39:54):
start to favor one over theother because you're carving.
I mean I can.
I'll have that case in four orfive years or 10 years or 20
years.
I won't be here in 10 years or20 years, but someone who will
be in my shoes will be doingthat.
So I think those are my partingwords, ron.
Speaker 1 (40:08):
Judge.
Thank you, judge Glenn Reaser.
Thank you for joining us today.
Good luck today with your is itarbitration, mediation, and we
didn't get into that.
Speaker 2 (40:18):
Is it arbitration, mediation?
And we didn't get into thatArbitration?
You know JAMS has this massivearbitration practice, but
arbitration is just being ajudge in a private setting and,
while I will do that for mycolleagues, where I actually sit
as a judge, arbitration to meis work, and I did it for too
many years and so I'd rather bea mediator where I solved
(40:40):
problems.
It's like a complicated puzzle,as opposed to having to have a
winner and a loser and somebodyyou know triumph and somebody
Thinking you know the judges anidiot, which is something that I
had to contend with for decades.
Speaker 1 (40:56):
Well, on that note, we will wish you a great day.
Good luck today, and I'm verymuch looking forward to having
you come down and join us in SanDiego.
We're very much looking forwardto that.
Speaker 2 (41:09):
Happy to do it.
San Diego.
By the way, the San Diego Trustand Probate Bar is fantastic.
Speaker 1 (41:18):
Well, you know what?
That's going to be my teaserfor everybody in San Diego to
listen to.
You have to listen to the wholepodcast to get to that moment
in time.
Speaker 2 (41:26):
They're the best though.
Well, thank you.
Speaker 1 (41:29):
We do love them.
Thank you very much.
Have a great day.
Thank you so much for joiningus.
Speaker 2 (41:35):
Thank you, Ron.
Speaker 1 (41:36):
Thank you for joining us.
This has been Ron Greenwald,the Ron Greenwald Podcast.
I hope you will share this withyour.
Have a day where you invite allyour children, your
grandchildren, cousins, uncles,nieces, nephews, whoever you
want, and listen to this podcast.
Ron Greenwald signing off.
Welcome in my name is Ron Greenwald and this is the
Ron Greenwald Podcast, and thepurpose of this podcast is to
bring you great stories andgreat insights to help you
hopefully have a family thatstays together and maybe, after
you're thinking about what'sgoing to happen to my children
and grandchildren andgreat-grandchildren after I pass
(00:49):
, will they have Thanksgivingtogether, will they have
Christmas together, will theycelebrate Passover together?
And I am thrilled this probablycould be one of the most
important podcasts you everlisten to, because you are going
to be listening to theHonorable Judge, glenn Reeser,
(01:10):
and he has spent 20 years on thebench in the County of Ventura
as a probate estates, trust andguardianship judge, and if you
think it's a privilege to benamed as the successor trustee
to your family's estate, you maywant to listen very carefully
(01:30):
to what he's about to say.
Judge, it's an honor, a truehonor, to have you on with us
today.
Thank you for joining us andwelcome.
Tell us a little bit about youbefore we get into the questions
.
Speaker 2 (01:43):
Good morning, ron.
It is a pleasure to be here.
Thank you for the invitation.
So I'm a retired judge.
Actually I was a litigationlawyer.
I did a lot of trial andappellate work for more than 20
years, but that was in adifferent century with a
different cadence of life.
It would be.
(02:05):
I'm not sure I would ever wantto be a lawyer today.
It's very chaotic.
And then I was a judge for morethan 20 years, as you stated, in
Ventura County, most of whichwas trust probates and
conservatorships exclusively.
I did retire five and a halfyears ago.
I worked with Jams, which is anADR provider.
(02:26):
It's a very large internationalcompany, but I do exclusively
now trust probate andconservatorship mediation and
some would call reference work.
It's continued to do trials forvarious trial courts in
California and, through the endof 2022, at least, I was the
trainer for all of the judges inCalifornia certainly a trainer
(02:51):
across the board in thedisciplines of trust probates
and conservatorships, so I knowmost of the judges in California
who do this.
It's a very judge-centricprofession and so you never know
what's going to happen in thetrial court, but there's some
rules that you can typicallyrely on.
Speaker 1 (03:14):
So again, the listening audience is certainly
a mix of professionals who knowyou very well and obviously the
layperson who is going to seetheir estate planning attorney
and want to get those documentsin place.
If you could say to the estateplanner the one who writes the
(03:35):
documents, given your 20 yearson the bench, what is the
overriding, overarching themethat causes them now to come
into arbitration and mediation?
That you're seeing in your lastfour years with JAMS.
Speaker 2 (03:51):
Well, if it's been five and a half years, five and
a half, sorry.
I wouldn't have a job if itwasn't for estate planners.
So thank you all to estateplanners for you know, giving me
this encore occupation, if youwill senior who comes into your
(04:32):
office has what you might callfull contractual capacity and so
appreciate that.
You know, if you are not ageriatric, psychiatrist or
psychologist which I think noattorney in California is you
may want to opt for atestamentary capacity, which is
a will rather than a trust,because the trust requires
contractual capacity and a willrequires only testamentary
capacity, and the chasm betweenthose two concepts is so massive
(04:57):
that if you want to err on theside of caution, you would go to
testamentary capacity.
Speaker 1 (05:03):
And what do you say to them about naming children as
successor trustees?
Speaker 2 (05:14):
So, as a professional mediator who does trust cases
virtually every day, I don'tthink I've ever met a trustee in
litigation who says gosh, I'mglad I was appointed trustee.
They all hate it.
It's a thankless task, it's acurse to most because there's no
glory in it, and, at least inmy world invariably you wind up
(05:37):
getting sued.
So yes, I understand there arefamilies that get along and
everything works perfectly, butI never see those.
I only see the other ones.
Speaker 1 (05:47):
Ron.
So, like today, you have a caseafter this, and can you I mean
obviously without giving thenames away can you give us a
little bit of background of whatyou're going to be facing today
?
Speaker 2 (05:58):
Well, the case isn't secretive, because I went to
trial, the estate planner wrotean estate plan and the husband
and wife and the wife passedfirst, and then the husband,
reading the estate plan,followed the letter of it and
reappointed the assets in waysthat the wife's children were
(06:23):
unhappy with.
And so the wife's children wentto court and asked the judge.
They said mom never would haveagreed to this.
So can you please reform thistrust?
And guess what the trial judgedid?
Do that?
Uh, but years have passed sincethe, since the trustee had
acted, and so the beneficiary,who's the husband's son, now
(06:49):
supposedly has to return themoney that he received.
And the trustee is I think theword is heaped with trouble,
because hundreds of thousands ofdollars were spent litigating
unsuccessfully.
So the trustee fees, theattorney fees, they're all in
play both ways, and so my jobtoday, obviously, is to solve
(07:12):
that puzzle and to send themhome smiling, or equally
unsmiling as the case may be, isit mostly equally unsmiling?
Speaker 1 (07:20):
Is that pretty much the way it goes after a day with
you, judge?
Speaker 2 (07:26):
Yes, At the end of the day everyone's equally
unsmiling.
But the next day, you know thecelebrations begin, you know the
confetti is thrown becausepeople can then look forward to
the rest of their lives, asopposed to waking up in the
middle of the night every nightworrying about how they answered
four minarogatory 17.2.
Speaker 1 (07:47):
What is that 17?
Oh, I'm sorry.
Speaker 2 (07:51):
There are certain ways to litigate cases and it's
very work and litigant intensive.
So there's discovery devicesthat lawyers, to satisfy the
standard of care, have toutilize, which requires
basically no stone unturned interms of recreating, in this
(08:16):
case, accountings and expensesand everything else.
Speaker 1 (08:20):
So I'm always interested.
You've spent over 10 years onthe court, on the court, on the
bench, as a probate of statesand trust and guardianship.
Yes, do you think you've heardit all, or is there one case
that you go?
This was the topper of thetopper.
Speaker 2 (08:39):
Ron, you think you've heard it all, and there's
certain patterns that repeatthemselves, but there's always
something new and novel everyday.
Every case is different, everyfamily is different, every trust
is a snowflake.
There's no two trusts that arealike, and so that's.
The family dynamic is thedriving force in most of these
(09:03):
cases and the relationshipsdrive these cases.
Speaker 1 (09:07):
So every case is different and, factually, most
things I've seen, yes, so do youthink you have an honorary
degree in psychology and the law, or just having listened to?
Speaker 2 (09:27):
these stories.
Well, it's interesting becausethe um, the work of mediation,
of being a mediator, is adifferent skill set than being a
judge, because a mediatordoesn't pontificate, a mediator
listens and creates rapport andthen creates resolution and that
is, you know, at the top of thelist, is psychotherapist
(09:50):
probably, then Rabbi, priest,minister, and then there's a few
other jobs and then judges sortof.
You know, I don't know valuelevel, part of the lower echelon
of skills you know at anevaluative level, part of the
lower echelon of skills.
Speaker 1 (10:08):
So, in terms of, is it the money or is it the
sibling rivalry that startedback when they were four years
old and the sister got thrownoff the tricycle and now I'm
gonna come and get you, or is itthem?
Speaker 2 (10:25):
is it the money?
The money is the catalyst, butit's not the money.
Is the relationships right?
Is the lifetime of expectation,of hope?
You know dealing with siblings,of dealing with step parents.
(10:51):
You know control power, all ofthose things are at play.
And so it's interesting.
You ask that because when Ifirst took this assignment, I
had to go to the classes that Itaught for many years after that
and I had a commissioner fromContra Costa County and the the
Don.
And Don said Glenn, you're onlygonna see three kinds of
(11:11):
litigation cases.
You guys see the trustee, youcan't be trusted, right.
You're going to see the, thewicked step mom, step step-dad
cases, the blended family cases,and then you're going to see
the state called them the pinkbicycle, blue bicycle cases,
where you know people, you knowchildren compete with one
(11:34):
another in one form or fashionand 50, 60 years later it plays
out on a stage of litigation andmediation out on the stage of
litigation and mediation.
Speaker 1 (11:44):
So again, I, as you know, what I've done for the
last 15 years is heard a lot ofthese in the.
I mean I do real estate, so Iget to hear a lot of these
stories because I am notcharging by the hour when I'm
out in the property and I justgo home and I'm going.
Really, I mean, as a judge, howdo you just not go?
Speaker 2 (12:02):
people get a clue because everyone
constitutionally has a right topetition for the redress of
grievances, and appreciate thatat most estate plans, at their
inception, are prettyegalitarian, where you know mom
and dad, they've got two kids,three, three kids, seven kids,
(12:24):
ten kids, and everyone sharesequally.
But then you know, invariablyone of the spouses passes first
and then life goes on for thesurvivor, and how that life goes
on often means a change, atweak sometimes, sometimes a
larger change in their estateplan and in a survivor's trust,
(12:48):
if they have a sub-trust.
And so when that ultimate, Imean, for example, right in many
families there's a lot ofchildren that they.
You know America's not like itwas 100 years ago.
People disperse, the childrengo on, they marry, they have
(13:10):
kids, grandkids, they're livingtheir lives.
Quite often one child stays hometo take care of the surviving
parent, either nearby or in thefamily home themselves, and
everybody else is out enjoyingtheir lives, and that person has
a very difficult job of takingcare of an elder right, it's not
easy and quite often they'redoing, you know, what would
(13:31):
otherwise be nursing care,caregiving services, writing
checks, you know, taking mom ordad to the physician's office
offices speaking of my mom,right and and there's a lot of
work there and the estate plan,you know, as that person gets
older, can change a little bit.
You know, dad, you know, don'tyou think I should get a little
(13:53):
more for doing this?
Or just you know, maybeunilateral from the parent
themselves?
And so when the other siblingssee this At their parents end of
life, they go well, dad or momlike me best, or certainly equal
, not less than him, and it'sodd right somebody has the
(14:15):
gloves come out undulyinfluenced the parent, or there
was a lack of capacity, or both.
Speaker 1 (14:21):
So you're very well known in the in the legal
community for Breslin and youpenned an article, you
co-authored an article inJanuary.
A little bit about that,without going deep, deep into
the weeds for the listeningaudience, and again, remember
I'm telling the lead of thispodcast is you really think you
(14:42):
want to be named a successortrustee?
And so tell us a little bitabout that ruling and where it's
going.
Speaker 2 (14:54):
So with that again getting into the weeds.
In California, historically,mediation is voluntary.
Alternate dispute resolution isvoluntary, and the theory was
that the courts are supposed tobe free, even though technically
(15:14):
they're not.
There's fees that are paidconstantly, but courts are
supposed to be free.
So if there's mediation it hasto be something outside of the
court system and voluntary.
In the civil world that wasalways the case.
There was this unusual case thatarose out of the San Domingo
Valley in Santa Barbara Countywhere the litigants, even though
(15:38):
they were in court for trial,were outside the judge's
presence and they reached asettlement where, you know, a
lot of the family membersweren't there and the court
approved the settlement eventhough it adversely affected the
non-present family members tothe tune of three-quarters of a
(16:00):
million dollars in attorney fees.
And they objected and the Courtof Appeals said too bad, you
know you could have litigatedthe case.
You didn't, these other peopledid, and so if this settlement
adversely affects you, that's,that's your problem.
You didn't participate in thecase, and and so my brain got
working and I thought well, whatdifference does it make if
(16:22):
you're actually in thecourthouse with no judge there
or if you're in a court orderedmediation and so, recognizing
that it had to be in what wecall the tri-counties the 805,
because that was the appellatecourt that made that decision we
waited for the we me and somecooperative attorneys waited for
(16:45):
a case in which we could try toextend that doctrine to a
mediation, and I wasn'tintending to get a published
decision out of it.
But what did happen when Isettled the Breslin case was
that Breslin case had 24beneficiaries.
Only five showed up at mymediation, 19 did not, and in
(17:08):
that case it wasn't familymembers, it was Catholic
charities who threw each otherunder the bus, and so the five
who showed up got paid and the19 who didn't didn't, and Court
of Appeal said yeah, well, youknow you should have gone to the
mediation too bad, and so italso.
(17:30):
The case also said that in trust, uniquely, a court can order a
case to mediation, and so thatcase was published a few years
ago.
It's still the law.
Every trial judge in Californiautilizes it to move cases off
their docket, because there area plethora of trust and probate
(17:51):
litigation cases around thestate, more than you could
imagine, and so they're clearingtheir calendars by ordering
cases to mediation.
And if people don't show up,even if they're not litigating,
even if they don't have lawyers,bad things can happen.
That's not saying they will,because they may have allies
within the litigants who don'tthrow them under the bus.
(18:13):
But you know, if there's a fewhundred thousand dollars of
difference, that needs, theyneed to resolve the case.
Well, guess who takes that hit?
Speaker 1 (18:22):
right the person who's not in the room.
And so the article in Januaryin terms of a seamless fabric
need tailoring.
What again?
As a layperson, what was themeaning of that?
Speaker 2 (18:36):
In terms of the tailoring of a settlement.
It's controversial.
Speaker 1 (18:43):
In.
Speaker 2 (18:43):
California.
I do work all around the state.
In Northern California andSouthern California lawyers
litigate these cases differently.
Right In Northern Californiathere's a tendency to push a
case up to trial, if they can,before the case goes to
mediation, because then thelawyers know everything there is
(19:05):
to know about the case and theycan properly, you know, advise
the client.
That's the theory.
Right in Southern California,more often than not we litigate,
we mediate rather early to save, you know, six to seven figures
in attorney fees and to try tosort of do discovery on the fly,
(19:25):
if you will, to get cases, youknow, resolved sooner rather
than later.
Idea that a court can order acase to mediation and in essence
take the this stratagem out oflawyering.
(19:48):
In that regard causes rankles alot of attorneys and so there's
still some a lot of pushbacktoward that in the attorney
sector.
Though, as you can imagine,because it takes cases off of a
judge's desk, there's not asmuch controversy in the in the
jurisprudence in the judicialsector.
For so many reasons, butprobably more than anything else
(20:11):
, all of these cases are there'sno juries in these cases.
Generally these are all judgecases because of the way trust
law evolved over the lastthousand years and so to
actually write an opinion aftertrial.
It takes a judge dozens ofhours, often weekends, nights,
(20:32):
just to write an opinion in asingle case, and so to take that
off of a judge's desk is agodsend to my colleagues, but to
the lawyers.
Forcing a case into mediationwhen they don't think they're
ready is often not helpful tothem.
Speaker 1 (20:54):
So I am curious how many cases come across your desk
on a weekly basis.
Speaker 2 (21:04):
Curious, how many cases come across your desk on a
weekly basis and then is therea criteria that you use to say
yes or no.
Obviously so you know ADR isexpensive to some degree, but
when it's the trust, you know,know most houses in California,
even if they're old houses,depending on where I'm located
it could be a million dollars ormore.
(21:24):
And so when people pass that,these estates, you know in
addition to the real property,you know they're generally seven
figure cases, sometimes eightfigures, sometimes nine figures,
sometimes 10 figure cases,sometimes eight figures,
sometimes nine figures,sometimes ten figure cases.
(21:46):
There's no criteria per se, butI do three to four mediations a
week.
I spend a whole day with thefamily, and sometimes into the
evening and sometimes late intothe evening to get it resolved,
but they're pretty pleased thenext day.
Speaker 1 (21:57):
Are you issuing the?
I mean, I was like, are youissuing the results of that day
or is it?
You sit on this and I mean howdo you?
How does your day go?
Speaker 2 (22:09):
It's a great question .
No one's ever asked me thatbefore.
So the morning is about meetingpeople and cause.
Every room is different, everyperson's different, everyone's
needs, interests, challenges aredifferent, and so I spend most
of the morning figuring peopleout and getting to know who they
are, where they're from andwhat their life is about, so
(22:31):
that I can craft a result thatmakes a material difference in
their life.
I mean that's important, right,that makes a material difference
in their life.
I mean that's important, right,and I mean, even if it's a
trustee being named, they justdon't want the angst and anxiety
of, you know, having somebodychase them for you know,
(22:54):
millions of dollars for doingwhat they thought was the right
thing to do.
Between you know beneficiariesthemselves, it's certainly
better to have their parents'inheritance be distributed to
them rather than to mycolleagues in the legal industry
, for whom there are a lot ofexperts.
They know what they're doing.
They're fantastic lawyers.
They're the best lawyers thereare in terms of, you know,
(23:16):
retaining a professional, butthey are specialists in the
trust and probate world andthey're very good and they're
very expensive, just like I amright.
So that's how it weighs out.
Speaker 1 (23:30):
Speaking of great legal minds here in San Diego.
Judge, when I had the privilegeof knowing you were going to
come on the podcast, I talked toa couple of my friendly
attorneys and they wanted me toask you about a couple things
and again, without going intothe weeds for the layperson
listening audience.
One was probate section 17206,and is that a government
(23:55):
overreach?
And what is your response tothat Judge?
Is that a government overreach?
Speaker 2 (24:02):
And what is your response to that?
Speaker 1 (24:04):
Judge what is 17,.
Probate section 17206?
.
Speaker 2 (24:09):
So appreciate that the trust courts were created in
the 1100s by the king ofEngland right To allow for
equitable results, because thelaw courts when people followed
rules it didn't always work.
Equity to the litigants.
And so the King, when theCrusaders were coming back after
(24:31):
you know, being in the MiddleEast and doing whatever deeds
they were doing there, theycouldn't get their lands back
and so they petitioned the king.
He created a chance to record,which is an equity court, and
the Lord High Chancellor inEngland still presides over
those.
That is the trust court inAmerica, that's the trust court
(24:52):
in every common law country thatderives its jurisprudence from
the English system.
And so these are very.
These cases are all about goodconscience.
So all the years I taught thejudges they would ask me
questions and the response was,in the final analysis, when you
(25:13):
go to bed at night and your headis in the pillow, do you feel
you did the right thing?
And if their answer to that isyes, which it almost always is
not always, but almost always isthen it's fine.
The problem is that quite oftenthe legal doctrines you know
aren't synchronous necessarilywith that result, and so there
(25:37):
are three cases in Californiawhere you know, things didn't
fit neatly into the statutes.
Two of those cases were mine,one was Breslin, the third one.
The first one was actually acase out of Los Angeles called
Schwartz v LeBeau when I waslitigating, which is in a
different century.
(25:58):
Right, it was very difficult toremove a trustee because the
statute had some very specificcriteria and it was hard to
qualify for the criteria even ifthere was, you know, conflict,
serious conflict with thetrustee, as long as the trustee
could say I can still properlyadminister the trust.
(26:20):
That the hostility was wasnever sufficient to remove a
trustee.
So a case came out, schwartzversus LeBeau, where the trial
judge in Los Angeles said youknow what?
I just want a new trustee, I'mnot comfortable with these
allegations.
And it was appealed and theCourt of Appeal in that case
(26:41):
said well, probate code 17206,all probate code 17206 is is a
plenary section that says in forus, the trial courts can use
whatever procedure they need toaccomplish their purposes.
This is very generic sort ofyou know, un-cathered allowance
(27:01):
to, in my mind, to createprocedure that causes, that
allows the court to function asa court of equity.
So this court, this courtversus LeBeau, says yeah, we've
read the statute.
But you know what you know.
If the judge wants a newtrustee, fine, because that's
within the court's power.
Well, you know, it's a case Itaught for years because
(27:26):
obviously it's a judicialempowerment case.
That was, you know, in maybe2008.
And then in 2011, I had thiscase called Christie v Kimball,
where Danita Christie bless herheart, I hope she still living
uh was handling, not as atrustee, but some of mom's stuff
.
And I said, mrs Christie,you'll need to account for that
(27:49):
in statutory fashion.
And she said you can't make mebecause there's no statute that
says I can do that because I'mnot the trustee.
And I said well, take it upwith the Court of Appeal.
And the Court of Appeal thensays they said two things.
First of all, in the firstsentence of the published case,
(28:09):
it says that in trusts andestates, there's nothing more
elegant than an accountant,which I thought was kind of a
lovely, more elegant, elegantyes, interesting, kind of an
interesting entree.
Well, because it gives you apicture a very detailed, you
know, this is like an MRI of anestate right.
(28:29):
And so they relied on 17-206and said, hey, if the judge
wants to get an accounting, it'swithin the judge's power.
And then, most recently inBreslin, the court just goes,
yeah, 17-206, if the trial courtin a trust case wants to order
a case to mediation, that's17-206.
So is it a usurpation of thelegislature?
(28:55):
I don't think so, necessarilyright.
It's just that when you managea court of equity, you just have
to have a little bit offlexibility to do things that
make the court operate smoothly.
Unlike, unlike, a civil caseright, it's in a lawsuit
typically, when I would teachjudges the crossover from
probate to civil and vice versa,because not all of my judges
(29:18):
had ever had a civil backgroundright, so it was helpful to give
them some civil courses.
I portrayed a trust and probatecourt as a PT boat which could
zip around, and civil court asan aircraft carrier that would
take 25 miles to turn around.
(29:38):
And so that's the idea is trustand probate courts, because
especially in probate, whereyou're supposed to open and
close the probate estate withina year, a year and a half if
there's a 706 estate tax return,that they need to do things in
(30:00):
an abbreviated fashion.
Speaker 1 (30:03):
So you spoke about accounting quite a bit and again
for the layperson who thinksthey want this job, let's talk a
little bit about how many ofthe cases that you come across
in jams or on the bench had todo with lack thereof accounting.
Speaker 2 (30:24):
So many, I mean every case.
I would say accounting in someform or fashion is part of every
case, right?
Because accounting is thetrustee doing her or his job.
Because accounting is thetrustee doing her or his job.
And when people want to seewhat's going on, if there's been
(30:46):
a formal accounting, typicallythere's objections to it for
whatever reason, and that in andof itself is a prospective
trial, even if it's a capacity,undue influence case challenging
a testamentary instrument, atrust or a trust amendment.
Most often people want to knowwhat's going on in order to
(31:09):
close out the case.
Right, you know what's been.
How much is there?
What's the money been spent on?
Should we discharge the trusteeor not been spent on?
Should we discharge the trusteeor not?
Speaker 1 (31:24):
So you know part of my job, I think every day is to
exculpate a trustee at somelevel.
And just again, I'd like you toexpress your thoughts on the
word co-trustee.
Speaker 2 (31:35):
Well, if there's only one trustee, ron, there's never
going to be a tie in voting,and so.
But the problem with one is,you know, a lot of times there's
multiple children, a lot oftimes there's differences of
opinion, the one who isappointed, if there's one.
(31:56):
You know there are people wholove control and they love being
able to, you know, exercisethat control in ways to, you
know, to sort of lord that overtheir siblings in many cases, or
their step siblings or theirstep children, no-transcript.
(32:46):
And then many cases I have twoco-trustees who despise each
other and they want each otherthe other one removed.
Speaker 1 (32:54):
I'm also interested in your time on the bench and
your time with JAMS.
You really have seen thematurity in the state of
California of what we callprofessional fiduciaries
administrators.
What are your thoughts on thatprofession moving forward over
the next 10, 20 years?
Speaker 2 (33:14):
So the most thankless job, I think, is the
professional fiduciary.
It's an extraordinarilydifficult job.
They have to interface directlywith family members and
caregivers and financialinstitutions and often lawyers.
And you know, can be charitieswhoever has a beneficial
(33:37):
interest can be charitieswhoever has a beneficial
interest.
A lot of their job involvesconservatorships, which the
legislature is making more andmore difficult by the day, and
at the same time their licensesare.
Always people get unhappy with afiduciary and they threaten to
(33:59):
sue them and then the licenses,you know, become jeopardized.
It's, it's, a very difficultprofession.
It's not getting any easier.
I respect all the professionalfiduciaries in california.
They're fabulous.
Uh, you know, in in the olddays, you know, quarter of a
century ago or more, uh, you hadto have really thick skin to be
(34:20):
a fiduciary probably still do,because you have to be tough and
there's just so much going on.
If you have a vibrant practice,like many of my professional
fiduciaries do, the demands areceaseless and if you don't call
(34:42):
somebody, be back right awaybecause of, you know mom's
canker sore then you know you'regonna possibly wind up in court
because of it.
And so who wants to?
You know who wants that job.
Speaker 1 (34:56):
That is a thankless job, so.
I do have to.
I'm going to digress a littlebit.
I know you got yourundergraduate at University of
California, santa Barbara, andyour law degree at UCLA, yeah,
and I just always ask, andpeople that went to UCSB, what
was Halloween?
Was Halloween like?
Was Halloween when you werethere?
(35:17):
Like it became back like 20, 30years ago?
That's a totally crazy question.
Speaker 2 (35:30):
There was nothing special about it.
Everybody was doing.
You know, it was a very socialenvironment when I was there.
It was a very socialenvironment when I was there.
My theory was if you went toclass you would get a B, and if
you read the book you would getan A.
Otherwise just enjoy your life.
Speaker 1 (35:48):
Well, I'm going to go off on a very personal story.
I won't share it here, but whenyou do come to San Diego next
time you're in San Diego, I havea great UCSB story.
I have a son who is now 38years old, so he was in college.
He wasn't at UCSB, but he wentto UCSB to visit friends.
(36:09):
So 20 years ago, when he wentto college on in the Halloween
period of time.
So I'm not even going to.
People can call me and ask methe details.
Speaker 2 (36:26):
Every you know it's now very difficult to get into
UCSB and it's a very prestigiousuniversity and I understand
students studied very, very hardthere.
It's just that 50 years agothat was not the rule.
Speaker 1 (36:37):
Judge, we want to wrap up.
I know you have a busy scheduleAgain being a judge.
I want to allow you that finalgavel and give pearls of wisdom
both to the legal profession, ifyou can kind of blend the legal
profession and the layperson.
So I don't think there's evergoing to be a shortage of work
for the litigating attorneys andfor you.
(36:58):
But if we can help somebodyagain write that plan so they
don't end up in litigation, I'mgoing to leave the last word to
you so is that loris, testators,right people who sign trusts or
(37:18):
wills, get it.
Speaker 2 (37:20):
You want to keep everything in the family, but
think about using a professionalfiduciary as the trustee,
because when you pass,shockingly, because you're not
going to believe what I'm aboutto tell you, the glue that holds
the family together will havefallen apart.
(37:42):
And while there may bealliances among your children,
it's not always kumbaya acrossthe board, and generally it's
not, and the ones I see it'snever the case.
And so, that being said, thinkand I get it there's an expense,
not a huge expense, but there'san expense associated with
(38:03):
professional fiduciary that yourchild may waive as a trustee.
But if you want your childrensuing each other after you're
gone, then you know, either, insome cases by appointing one
child as the Lord, but in many,many, many cases, if you don't
(38:28):
give ifs, equally you're askingfor trouble, and especially if
everything is not cleared withthe kids beforehand, because
people get surprises after theirparent dies and kids are not
going to blame you.
I mean, I'll blame you inmediation, but your kids are not
(38:48):
going to blame you, and sothey're going to blame the other
children.
And so you just have toappreciate that, even though.
Family happenings at the housenow are great and everybody
comes and the grandkids come andit's all wonderful, the heart
(39:09):
of that dynamic.
And you've worked hard yourwhole life and you've saved up.
I know it's for a rainy day,but ultimately for the
children's inheritance.
And if you want that to go tolawyers, be my guest.
(39:32):
You know, I used to be a lawyer, you know, and so many
specialists are really good atwhat they do.
But if you want your state topass peacefully, you know,
resist the temptation,especially if you're widowed, to
(39:54):
start to favor one over theother because you're carving.
I mean I can.
I'll have that case in four orfive years or 10 years or 20
years.
I won't be here in 10 years or20 years, but someone who will
be in my shoes will be doingthat.
So I think those are my partingwords, ron.
Speaker 1 (40:08):
Judge.
Thank you, judge Glenn Reaser.
Thank you for joining us today.
Good luck today with your is itarbitration, mediation, and we
didn't get into that.
Speaker 2 (40:18):
Is it arbitration, mediation?
And we didn't get into thatArbitration?
You know JAMS has this massivearbitration practice, but
arbitration is just being ajudge in a private setting and,
while I will do that for mycolleagues, where I actually sit
as a judge, arbitration to meis work, and I did it for too
many years and so I'd rather bea mediator where I solved
(40:40):
problems.
It's like a complicated puzzle,as opposed to having to have a
winner and a loser and somebodyyou know triumph and somebody
Thinking you know the judges anidiot, which is something that I
had to contend with for decades.
Speaker 1 (40:56):
Well, on that note, we will wish you a great day.
Good luck today, and I'm verymuch looking forward to having
you come down and join us in SanDiego.
We're very much looking forwardto that.
Speaker 2 (41:09):
Happy to do it.
San Diego.
By the way, the San Diego Trustand Probate Bar is fantastic.
Speaker 1 (41:18):
Well, you know what?
That's going to be my teaserfor everybody in San Diego to
listen to.
You have to listen to the wholepodcast to get to that moment
in time.
Speaker 2 (41:26):
They're the best though.
Well, thank you.
Speaker 1 (41:29):
We do love them.
Thank you very much.
Have a great day.
Thank you so much for joiningus.
Speaker 2 (41:35):
Thank you, Ron.
Speaker 1 (41:36):
Thank you for joining us.
This has been Ron Greenwald,the Ron Greenwald Podcast.
I hope you will share this withyour.
Have a day where you invite allyour children, your
grandchildren, cousins, uncles,nieces, nephews, whoever you
want, and listen to this podcast.
Ron Greenwald signing off.
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