Matthew B. Talbot

Matthew B. Talbot

Matthew B. Talbot
Top Probate Attorney SF East Bay
Experience: 17 years
Elder Law, Estate Planning and Probate
Super Lawyers, Super Lawyer Rising Star and Superb
Free consultation have
Awards 3
Experience 17y
Videos 9
Online & Web 7

Biography Submit listing

Matthew focuses on elder law, estate planning, and related practice areas. He began his career in the field of trusts and estates, and expanded into elder and probate law. He quickly realized that he enjoyed the personal nature of working in estate and elder law, and chose to continue by opening his own firm. He is passionate about taking care of his clients, and treats each of them as if they were family. Matthew was admitted to the California bar in 2006 and has practiced law in Contra Costa Country since 2006. He earned his J.D. at the University of San Francisco. He earned his Bachelor of Science Degree from the University of California Berkeley. Matthew is a member of the Trusts and Estates section of the California State Bar. Additionally, he is a member of the Barristers section, Estate Planning and Probate section, Elder Law section, ADR Section, Solo and Small Firm Section, and Litigation section of the Contra Costa County Bar Association. Matthew is on the Executive Board for the Robert G. McGrath American Inns Of Court. He is an active member of the Executive Board for Contra Costa County Senior Legal Services, and is on the board of directors for the Barristers Section of the Contra Costa County Bar Association. In addition, Matthew is a columnist for Contra Costa Lawyer Magazine. He currently lives in Walnut Creek with his wife, Elizabeth, and daughter, Mani-Ann.

Jurisdictions Admitted to Practice

California

Since 2006

Professional Experience

2014 - Current

Contra Costa County Senior Legal Services Board

Board Member

2008 - Current

Contra Costa Lawyer Magazine

Columnist

2007 - Current

Inns of Court Executive Board

Executive Board Member

Education

2003 - 2006

University of San Francisco School of Law

J.D. (2006) | Law

Honors: yes

1999 - 2003

University of California - Berkeley

B.A. (2003) | Political Science, Business

Honors: yes

Awards

year - Matthew B. Talbot
Super Lawyers

Findlaw Thomson Reuters

year - Matthew B. Talbot
Super Lawyer Rising Star

Findlaw Thomson Reuters

Superb

Avvo

Contacts

Main Office 2033 N. Main St. Suite 750 Walnut Creek CA 94596 Telephone: (925) 322-1795 Cell: (925) 322-1795 Fax: (925) 407-8227

Videos

Two Ways to Invalidate a Trust: Lack of Capacity and Undue Influence
Matthew Talbot is an Elder Law Attorney in Walnut Creek, California. Today I want to talk about ways people can contest the terms of a trust. By that, I mean that people come to me and say they are a beneficiary to a trust, and for example, there was a first trust that was done and they were a 10% beneficiary of the trust. Then a second trust was done and they were a 5% beneficiary to the trust. However, they do not think the second trust was really valid, and they lose out on 5% of the money. So, they want to try to contest the second trust to try to invalidate it. So how do you invalidate a trust? There are two main ways we can handle the invalidation of a trust. The first is that we try to argue that the person who signed the document, who is now deceased, did not have the requisite capacity to understand what they were signing. These can be complex documents and sometimes these are simple documents. There is a whole legal scheme set up to deal with whether or not the documents are complex or simple. The basic understanding is that the person signing had a mental deficit or inability to understand that they were signing a document distributing assets or naming a beneficiary or naming a trustee, or whatever the document does , and so, they truly were not signing the document. This can get very complicated because a lot of older people are in a gray area mentally. They don't believe it's 1952, or anything that makes it obvious to everyone they lack capacity. However, they may have mild or moderate impairments that make it seem to many that they do in fact have capacity. So that is the first way to contest a trust, or invalidate the trust. The second way to invalidate a trust or a trust amendment is what is called undue influence. Put very generally, this is when a person applies significant pressure on the person signing the document to either sign or not sign the document. Undue influence can be very complex legally. I am going to try to make it more simple. An example of undue influence might be someone who does an estate plan late in life and at that point a child is living with them and providing care. The child might say if you don't sign this will or trust, I will stop providing food or care, or medicine. Or, the child might say, if you don't sign this will or trust, you don't love me. If you loved me you would sign this will. And maybe the child doesn't just say it once, they say it over and over. They provide that pressure. That of course is inappropriate and is called undue influence. When there is Undue influence it means is the elder signed the document and may have understood what they were signing, but the elder did not feel like they were signing it of their own free will or they were doing it due to the pressure of the alleged abuser. Undue influence is a form of elder abuse. We handle a lot matters like that at our firm. It is always very sad, but unfortunately these types of things exist, and it is much more common than most people realize. So, what we are looking at today is lack of capacity and undue influence as two ways to potentially invalidate a trust, a will, or trust amendment to go back to earlier documents.
Views 1704
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Undue Influence and Flipping the Burden of Proof
My name is Matthew Talbot and I am an an elder law attorney in Walnut Creek. I handle elder abuse cases and today what I want to talk about is “flipping the burden of proof”. This is an extremely important topic in elder abuse cases because if there is anyone trying to say that a document, will or trust is invalid due to the undue influence of somebody else (the abuser), then that person who is making those allegations has to prove undue influence. That can be difficult at times because undue influence usually happens behind closed doors. It tends not to be written down and there is not a lot of evidence to prove it, so one tool in the arsenal of someone who is trying to prove undue influence is to “flip the burden”. Instead of the person making the allegations having to prove undue influence the alleged abuser has to disprove undue influence and show that it was signed with the free will of the decedent (the dead person) who executed the document. This can be tough to do, so flipping the burden is huge. This comes out of a case called the Estate of Mann and there is a three factor test that you have to look at to determine whether or not someone can flip the burden. The first factor is determined if the alleged abuser was in a confidential relationship with the alleged victim. A confidential relationship can be hard to define, because you want to look to see if they were in a fiduciary relationship. If they were in a caregiving relationship, or if they were close family members, like a
father daughter relationship or a brother sister relationship this can be a part of a confidential relationship. If that factor is met then the second factor is whether or not the victim actively assisted in the securing and drafting of the document. What that means is if the abuser drafted the document for the victim or helped draft the document for the victim then the second factor would be met. There is some case law that says that the abuser drove the victim to the lawyer and then sat there while the lawyer did everything. In that case then that would not necessarily meet the second factor. So these are very fact intensive and it depends how active the abuser was in organizing, drafting, and procuring this controversial document. And the last factor is the inequity of the result Basically, this means how fair or unfair was the result, and was there an undue benefit for somebody? So if there are four kids and maybe normally the estate goes to the four kids equally that would be a natural distribution. But if one of the kids drafted a will for mom or took mom to the lawyer and that kid inherited the entire estate that could be viewed as inequitable. Now of course if three of those kids moved out of state and one kid stayed with mom and took care of her while she was dealing with cancer then that may not be inequitable, so you really have to look at the evidence to determine if this is an undue benefit. So those are the three factors: confidential relationship, actively procured document and undue benefit. If the person alleging undue influence can prove these factors then the burden of proof is flipped and the alleged abuser has to disprove undue influence. This is very complicated and difficult. I have tried to break it down from the layman’s perspective, but if you believe that there has been undue influence or you are concerned that someone is under the undue influence of somebody else do not hesitate to contact your attorney to make sure to insure that someone’s rights are fully represented at all times.
Views 16516
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Elder Abuse Attorney SF East Bay
Matthew Talbot is an Elder Law attorney in Contra Costa County who does a lot of elder abuse work within the umbrella of Elder Law. I wanted to talk about one aspect of elder abuse today which is undue influence. California Probate code 86 defines undue influence by looking at Welfare and Institutions code 15610.70. If you look at the Welfare and Institutions code, it gives a general definition of undue influence with four key factors. The general definition is excessive pressure that someone puts on another person to get them either to take an action or not take an action. It could be something like “If you don’t sign this document handing over your assets to me when you pass, I am going to withhold your medication.” or “ if you truly loved me you would sign this deed transferring the property to me.” That has to be done excessively - the pressure has to be excessive - to either take the action or not take an action. To not take an action would be the alleged victim saying to their child “I’m thinking of signing this document giving everything to your brother” and the other sibling saying “don’t do that” and applies excessive pressure. So what are the four factors that further determine the court’s focus and help guide attorneys when it comes to undue influence? The first is vulnerability. How vulnerable was/is the alleged victim? This isn’t just mental incapacity, it could be education, it could be physical capacity as well. The court will look at a lot of different factors. Of course if they do suffer from dementia, that is the most common factor that leads to vulnerability. The second is is apparent authority, which is probably the most confusing factor. What is apparent authority? Apparent authority is someone who could take advantage of a vulnerable person- maybe a family member, a caregiver, a professional fiduciary, someone who is in a position to take advantage. Apparent authority is determined by the likelihood that the person could take advantage - or the access and involvement they have with the alleged victim. The third factor is actual actions taken. So, is there evidence that the alleged abuser stood over the alleged victim and said You need to sign this document right now. THis would be an example of actual actions taken. Or, did someone actively withhold medication, for example. This can be hard to prove because it often happens behind closed doors. So the courts have a rule that circumstantial evidence can be sufficient in that instance - so the evidentiary barriers are lessened. And the last factor is what’s called inequity, or unfairness of the result. For example, if there are four kids, and mom does a trust giving everything to one of the 4 kids, that seems unfair. But, if perhaps that child had stayed home to take care of mom while the others left and had little communication with her, then this would be more of a fair result. So it’s not done in a vacuum, you have to look at the evidence as to the fairness. Cutting out people in and of itself is not evidence of inequity. The code section actually says that you need more than just evidence of inequity. So those are the four factors when looking at undue influence by the courts. If you are concerned that someone is under the undue influence of somebody else, you should contact an attorney to ensure that everyone’s rights are fully protected during the lifetime of the victim, and afterwards.
Views 456
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Conservatorship Attorney SF East Bay
Matthew Talbot is an Elder Law Attorney in Northern California with a focus on Conservatorship. law. In this video, Matthew addresses what a conservatorship is and what the process looks like to obtain a conservatorship. And why it is important and helpful to have an attorney through the conservatorship process. So, a conservatorship is the process of having the court appoint an agent to make medical or financial decisions for someone. Usually it is an elderly person with dementia, although there are other instances where a conservatorship is necessary. The majority fall into that category. So what is the process of obtaining a conservatorship? As I mentioned, it is a court process. So you have to go to court and file at least one petition. In all cases, you will file a general conservatorship petition. A hearing will be set 6-8 weeks out from the filing of the petition. In many instances, however, an emergency conservatorship is necessary - when someone needs to be able to make decisions on behalf of another person right away, you will need a temporary emergency conservatorship. Those can usually be heard by the court within a week. That would be the second type of petition one would potentially need in a obtaining a conservatorship. In these instances, an attorney will be appointed from a panel of attorneys specializing in Conservatorships to represent the proposed Conservatee. I am on this panel. I generally file a motion to have that attorney appointed at the outset, to avoid delays within the case. That is another example of a necessary petition that can be filed in the conservatorship process. As you can see, it can begin to get complicated. If petitions are done incorrectly or without sufficient information, and court requirements are properly met, it can be very difficult to obtain a conservatorship. On top of these petitions, a lot of supplemental documentation is required. You have to file a Conservator Screening form, a Confidential Supplemental Information form with significant information regarding Conservatee. You also have to file a Duties form regarding what exactly the Conservator will be doing. You also have to file a Citation, which is an item of Service that is personally handed to the proposed conservatee. Then there is the normal required notice, and any additional documents that may provide additional evidence of need for a conservatorship. As you can see, there are quite a few documents that need to be filed with the court to meet all the legal requirements for the judge to issue the conservatorship order. I often see im pro pers, or people without attorneys, trying to obtain conservatorships at the courthouse. They usually get bogged down or stuck in some of technical details - particularly related to service - can preclude them from getting across the finish line in a reasonable time period. So, if you have a situation where you believe someone is not able to manage their medical or financial affairs, and maybe has not done an Estate Plan to assist them with this, you should contact a conservatorship attorney to receive guidance on what can be done through the conservatorship process.
Views 675
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Common Issues in Trust Lawsuits
Matthew Talbot, Trust Litigation attorney in Walnut Creek California, talks about some of the common trust litigation cases he has run across in his practice over the last decade. Many of the cases are complex in nature, but they tend to break down in to similar types of cases, For example, one issue that tends to come up frequently is who should be the trustee of the trust. This is because someone may believe they should be the trustee, because the person or people currently named as trustee are either unwilling or unable to act. Or, for example, someone believes the current trustee is not capable of carrying out their responsibilities. Another issue that arises in regards to the trustee is if a neutral, professional should be the trustee. This might be the situation if all of the named trustees are either unwilling or unable to act, or they have committed bad acts.
This brings us to our second type of common trust litigation - and again, these are not necessarily mutually exclusive. Often times you see these issues in the same case.
But for example, if there are allegations related to bad acts committed by a trustee, that is something that is hotly litigated. Examples include theft: Did someone take $100,000? ; Did the trustee negligently invest money? Bad acts committed by a trustee, like elder abuse for example, often go hand in hand with who should be the trustee. If a trustee has committed elder abuse by stealing, then obviously they should not be trustee.
Another topic that is often litigated has to do with the terms of the trust. For example, I recently had a case where an elderly woman had been diagnosed with dementia and then did a handwritten amendment to her trust, changing her beneficiaries. So now the beneficiaries, after the passing of this woman, are arguing as to whether or not this was a valid amendment to the trust. Questions that arise in this type of litigation are: How bad was her dementia? Did she really intend to make this change to her trust? Did she understand what she was writing and signing?
So, the terms of the trust are often litigated in cases.
Some people get nervous because most trusts contain what is called a no contest clause that can sometimes lead to a contestant of the terms of the trust getting nothing. But recent changes in the law have actually made these no contest clauses toothless.
So those are some of the key things that I see over and over again: who should be the trustee of the trust, especially relating to potential bad acts by a trustee (including accounting, hiding information, etc) , and then finally - what are the true terms of the trust? For example, are amendments to the trust valid? Was undue influence applied? Was there elder abuse?
If you are involved in a trust situation and you are not certain with regards to some of the issues, you should talk to an attorney who specializes in trust litigation. A competent attorney can guide you through the complex law and the legal process as it relates to resolving trust issues.
Views 2479
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What is an Estate Plan and why do SF Bay Area families need one?
Elizabeth Talbot speaks with Walnut Creek Elder Law and Estate Planning Attorney Matthew Talbot about what an estate plan is. Why do we all need an estate plan?
An estate plan consists of a set of legal documents. The bottom line of these documents is to appoint an agent to make decisions upon your death or incapacity. This is important because if you do not have these types of legal documents, people are often forced to fight it out in court, which can be expensive, time consuming, and emotionally devastating to family members and relationships.
Two of the types of documents are the power of attorney and the advance healthcare directive. These documents are only valid during the principal's lifetime. The principal is the person the document belongs to. The healthcare directive appoints an agent to make healthcare decisions on your behalf, either effective immediately or upon your incapacity. These decisions can be as important as to whether or not to pull the plug if you are in a persistent vegetative state. The power of attorney appoints an agent to make decisions on your behalf for non trust assets. There are two types of assets, non trust and trust. Non trust assets would include accounts like an IRA or 401k, which are never placed into a trust.
In addition to the healthcare directive and the power of attorney, there are two other documents that are also very important - a trust, and a will.
A trust is perhaps the most important document in estate planning. What a trust really does is separate ownership of assets by making the trust the owner of one's assets. The key here is that rather than having to go to court to put someone in charge of the assets after someone dies or becomes incapacitated, making the initial owner not as relevant. All the successors have to do is bring a copy of the trust that shows they are named as the successor to take over the trust at the time of the principal's death or incapacity. The successor trustee is then able to manage the assets in the trust on behalf of the trust's beneficiaries. This is much easier than potentially fighting it out in court, and much less time consuming and less expensive than even a non-contested probate.
When there is a trust, the will in this instance is typically what's known as a pour-over will. This takes any assets that have not been placed in the trust or titled in the name of the trust and "pours" them into the trust. These assets can then be distributed under the terms of the trust, according to the wishes of the settlor, or person who initially formed the trust. This is one of the most important reasons to set up an estate plan - to allow you to make your wishes known at a time when you cannot express them. Well written estate plans are, in essence, proof of a person's wishes for their assets.
To clarify, a trust is a separate legal entity that is set up to allow for the smooth transfer of assets.
Does the average person really need a trust?
Yes, the average person in the Bay area most likely needs a trust. Anytime someone dies with over $150,000 worth of assets (other than beneficiary accounts like a 401k), those assets are subject to the probate process in order to transfer their ownership to another person. If you own a home in the Bay area, you are almost definitely worth over $150,000. This threshold does not take mortgages into account. This low threshold for probate places a huge percentage of the families in the Bay area in a position where they will be most benefited from doing a trust, in addition to a basic will.
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When do you need a Conservatorship in California?
Walnut Creek Elder Law, Probate and Trust Attorney Matthew Talbot discusses what a conservatorship is and when a conservatorship is necessary in California. A conservatorship is a court proceeding where someone is appointed to make medical or financial decisions on behalf of another individual who is over the age of 18. Guardianships are for minors, or those under 18. A conservatorship allows someone to manage the care of someone else who is unable to take care of themselves because of dementia or Alzheimer's, a special need such as down syndrome. Conservatorships for individuals with special needs are most often limited conservatorships. There are two types of conservatorships, one for medical, and one for financial. A conservatorship of the person is for medical affairs and a conservatorship of the estate is for financial affairs. The estate planning process has similar documents - the power of attorney (appoints an attorney in fact to make financial decisions) and the advance healthcare directive (appoints agent to make medical decisions). When the power of attorney and healthcare directive are done correctly, they can preclude the need for a conservatorship in certain instances.

In general, a conservatorship is only necessary because someone has not done a power of attorney or advance healthcare directive. However, in some instances, sometimes the documents are insufficient or not legally valid, or there are concerns about the person who is appointed by the documents. For example, there might be concerns that the agent appointed by the healthcare directive or power of attorney is committing elder abuse. Someone can take that person to court, and have them suspended, and another person appointed to make medical and financial decisions.
For those adults who are younger, the safest thing they can do to prevent a conservatorship from becoming necessary, is execute an estate plan that includes a financial power of attorney and a healthcare directive. These documents do not expire but last the entirety of one's lifetime. It's always best to update them, if it becomes necessary.
Why would one want to avoid a conservatorship? A conservatorship can be very costly, and also must be done through the court system, which can be a time consuming process. Additionally, if you are conservator of the estate for financial affairs, you have to account to the court on a consistent basis. The information also becomes available to the public, and all accountings and conservatorship court proceedings have to be mailed to family members. Additionally, problems can arise if a close friend or family member objects to either the conservatorship, or the person petitioning to become conservator. The matter becomes what is called a contested conservatorship. Contested conservatorships can be very expensive because of attorney's fees, and also very emotionally trying for family members. In general, a conservatorship is much more complicated and expensive than if one has a legally valid healthcare directive or power of attorney.
Views 5918
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Probate 101: How is an Administrator chosen when there is no Will?
Probate and Estate Attorney Matthew Talbot discusses how an administrator of an estate is selected when there is no legally valid will. Matthew describes the purpose of an administrator (called an executor when there is a will). The purpose of an estate administrator is to marshal assets, prepare the assets for distribution, and generally manage the affairs of the estate, including paying taxes and debts.
A probate is necessary when there are assets in an estate, such as a house, that need to be transferred out of the name of the deceased. California probate code gives a detailed list of who has priority to administer an estate. For example, spouses generally come first, with children second, and so on down the family line (parents, cousins, siblings, grandchildren). The court will generally select the person with the most priority to administer the estate, unless someone can prove they are not up to the task due to lack of mental capacity or another mental or physical issue. Problems arise most often when there are two or more parties on the same priority level who want to administer the estate. For example, two brothers who wish to administer the estate of their deceased parent(s). If one person cannot clearly show why they are best suited to become special administrator to the court, they are often ordered to mediation. When parties cannot agree, often they choose to select a professional administrator. An experienced estate attorney can assist clients in resolving the matter of who will administer the estate, and help their client to decide whether to pursue their claim to administer the estate, mediate with the opposing party, or hire a professional. It is generally in the best interest of all parties involved to settle. This will avoid costly litigation and estate assets going to pay for professional fees. This enables beneficiaries to get the largest distributions. Probate attorney Matthew Talbot emphasizes the importance of setting up a will or trust to avoid costly litigation. A legally valid will or trust allows one to designate an executor and specify how they wish their assets to be distributed.
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How to Know if an Estate needs to go through the Probate Process in the SF East Bay
East Bay Probate attorney with Trust and Estate Firm in Walnut Creek discusses the probate process in California. First, Matthew Talbot describes the purpose of probating an estate: to access assets and organize them for distribution. After one has determined what assets are subject to probate, a petition must be submitted to the court to appoint an administrator or executor of the estate. The executor may be named by the will. Once the petition is submitted, Contra Costa or Alameda County probate court will set a hearing for the matter 4-8 weeks out from the date the petition was filed with the court. Once the court appoints an executor or administrator for the estate, there is a statutory 4 month waiting period. At the beginning of this period, all creditors must be noticed and dealt with. Creditors are either payed, lawsuits opened, denied, and so on. During the 4 month period, other issues relating to the estate can be dealt with, such as the sale of real property like a home. State claims can also be settled. If there is litigation related to the estate, it would also be dealt with at this point. Simple estates with few debts may take only the 4 month period to resolve creditor claims, but larger estates with more assets and multiple beneficiaries often take longer than 4 months. After this period has passed, a petition is brought before the court by the administrator or the executor to close the estate. At this time the administrator/executor will also present an accounting and record of asset management, as well as a proposal for distribution of the assets in the estate. This proposal will either reflect what the will says, what a settlement agreement dictates, or it will follow intestate succession. The probate court must authorize the distribution plan prior to distribution of any assets. Most probates last 8-12 months when executed properly.
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Matthew B. Talbot
Matthew B. Talbot Top Probate Attorney SF East Bay

Experience: 17 years
Website: Open
Location: USA
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Practice Areas

Estate Planning

Guardianship & Conservatorship Estate Administration, Health Care Directives, Trusts, Wills

Probate

Probate Administration, Probate Litigation, Will Contests

Languages

English: Spoken, Written

Certifications

California Notary Public

State of California

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