Law Offices of James A. Bush, PC.

Posted on January 28, 2019
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Law Offices of James A. Bush, PC.
James A. Bush,
Attorney At Law

Jim is an honors graduate of both the University of Arizona’s undergraduate program (B.S. with a double major in astronomy and physics, 1978) and law school (J.D., 1981). After a one-year clerkship with Arizona Supreme Court Justice Frank X. Gordon, Jr., Jim embarked on a career in litigation in private practice, first in Arizona and then (beginning in 1998) in California. As an adjunct to his private practice, he also has served in selected cases as a judge pro tem for both the Maricopa County Superior Court and Arizona Court of Appeals, an arbitrator for FINRA (Financial Industry Regulatory Authority), a due process hearing officer for the Arizona Department of Education, and a mediator. Outside his law practice, he also has worked as a member of a number of community organizations in both Arizona and California.

Over the last few years, Jim’s practice has evolved to focus on the litigation of trusts, estates, and probate matters before both trial and appellate courts in Southern California. Matters in which he has been involved have included challenges to trusts and wills based upon claims of undue influence, fraud, lack of capacity, or mistake; claims of breach of fiduciary duty and/or requests to change a trustee or personal representative; demands for accountings, requests to approve accountings, and objections to accountings; claims of financial elder abuse; other matters of trust or estate administration; powers of appointment; conservatorships; requests to modify estate planning documents; distributions where there is no will or trust; and other issues.

In addition to working directly with clients, Jim frequently works with other attorneys, often being brought into a matter as co-counsel or as counsel to whom a litigation or appellate matter is referred.

 

Areas of Practice

Trusts / Estates Administration

Jim Bush is an attorney for wills and trusts litigation and can advise and represent any of the parties in a trust or estate administration, including the fiduciaries (a trustee or a personal representative), beneficiaries, devisees, heirs, creditors, and other interested parties. If you already are a trustee or a personal representative, are considering whether to accept appointment as a trustee or personal representative, or are a beneficiary/devisee, creditor, or other interested party, you may have questions about your rights and/or responsibilities in connection with trust or estate administration that can best be addressed by an attorney. Also, it sometimes happens that a matter that begins as a simple trust administration or probate administration turns into more complicated trust litigation, a will contest, or a contested probate. Unlike estate and trust lawyers who primarily draft estate planning documents, Jim’s practice focuses on the litigation of trusts, estates, and probate matters. To see if he can put his decades of litigation experience to work for you, contact him by phone or e-mail to set up a no-charge conference.

Undue Influence/Competency

Generally, adults with the requisite mental capacity at the time they create or amend their estate plan may dispose of their property as they wish without regard to the expectations of their heirs or anyone else. In California, an adult is presumed to be competent, and anyone challenging this presumption has the burden of proving otherwise.

Breach of Fiduciary Duty

Fiduciaries – such as trustees, personal representatives, executors, administrators, guardians, conservators, and attorneys-in-fact acting under a power of attorney – owe their respective beneficiaries and charges a “fiduciary duty,” which is the highest duty imposed by the civil law. Persons subject to a fiduciary duty must act for the sole benefit of their beneficiaries, regardless of the fiduciary’s personal interests. The fact that fiduciaries may also be beneficiaries (as is often the case where a family member is both a fiduciary and one of the beneficiaries) does not change their duties to act on behalf of all the beneficiaries equitably and certainly does not permit them to favor themselves.

Power of Appointment

Powers of appointment may be “general” (where donees can appoint to themselves or their own estates) or “special” (where the list of permissible appointees does not include the donee or the donee’s estate). A power may only be exercised in favor of the appointees designated by the donor, but powers may be “nonexclusive” (where the donee must appoint something to everyone the donor designated as a permissible appointee) or “exclusive” (which allow donees to give to fewer than all the appointees and exclude the rest). Donees generally are not required to exercise a power given to them, but, if they do make an appointment, they must comply with any restrictions imposed by the donor or otherwise by law.

Elder Abuse

Years ago the California Legislature recognized as a serious public concern “that elders and dependent adults may be subjected to abuse, neglect, or abandonment,” and it enacted both criminal and civil statutes to address the problem. In adopting the civil statutes, the Legislature stated that one purpose was “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.”

Modifying Instruments

Generally, and subject to a few exceptions, people can amend, replace, or void their wills or their revocable trusts whenever they wish as long as: (1) They are mentally competent to do so; (2) the change is not the result of undue influence, fraud, duress, coercion, etc. brought about by someone else; and (3) the change complies with any procedural requirements provided for in the document being changed and those that are imposed by law. As for irrevocable trusts (including revocable trusts that have become irrevocable), they generally cannot be changed, but there are some exceptions to that principle, as well.

Intestate Succession

Whenever a person dies without having any will, trust, or other estate plan in place, their property is passed on by the laws of “intestate succession.” Those laws are set forth in California’s statutes. To whom property is passed after creditors are paid and in what shares depends on which (if any) relatives the decedent leaves behind (and, in some cases, whether the decedent had a spouse who previously died within a specified number of years before the decedent) and may also depend on whether the property is characterized as community property or separate property. The persons who may be eligible to take by intestate succession are the “heirs” of the decedent.

Misc. Litigation

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