B. James Brierton, Esq.

Profile

Regarded as one of San Diego’s preeminent probate specialists, B. James Brierton, Esq. began his legal career in 1972 as Director of a clinic for low-income elderly and has since handled thousands of matters involving probate, trusts, estates, and elder law. In 1997, after completing over 100 hours of extensive mediation training, Mr. Brierton began serving as a mediator and arbitrator in addition to his litigation work. To date, he has mediated and arbitrated more than 500 cases involving disputed litigated and non-litigated matters in his field of law.

Mr. Brierton brings a record of extensive experience and expertise to ADR Services, Inc.:

  • 45 years of experience litigating complex trust, probate and elder law matters
  • 20 years as a distinguished mediator, settling over 500 cases
  • Selected as a San Diego Super Lawyer continuously since 2009
  • Certified Specialist in Trust, Probate and Estate Planning since 1991
  • AV Preeminent rated by Martindale-Hubbell
  • Executive Committee, Trusts and Estates Section of the California State Bar
  • Judge Pro Tem, San Diego Probate Court

The tenacity, impartiality and creativity which Mr. Brierton brings to mediation inspires confidence in the parties to resolve their disputes. His ability to evaluate technical and complex legal issues involved in trust and probate disputes overcomes the stumbling blocks to settlement and fosters confidence in the mediation process.

REPRESENTATIVE MEDIATION CASES

  • Conservatorship dispute wherein a son lived with his mother for two years in a part-time caregiver role and took over the managing of finances for his mother. His sister was concerned their mother was not receiving proper care and claimed that their mother was a victim of financial abuse by her brother.
  • Dispute regarding financial losses suffered in Trust where trustee was local private fiduciary who refused to account to settlor’s adult children. Settlor, while living in his own home, had exhibited behavior of forgetfulness and irrational thinking. Settlor’s children had all been estranged from the parent for several years. His children filed a trust petition under Probate Code §17200 to surcharge and remove the trustee. Trustee contended children lacked standing, and settlor hired counsel to also contest the petition.
  • Settlor, an 80-year-old man, married a 55-year-old woman who was hired as his caregiver through an agency eight months prior to their marriage. Settlor’s son filed a petition for conservatorship shortly afer the marriage. Settlor hired counsel to vigorously contest the conservatorship. Even though settlor had always enjoyed a loving relationship with all three of his children, he refused to communicate with them, vowing that he did not want to see them again.
  • Trust contest wherein an estranged daughter happily reconciled with her parents. Three years after the reconciliation, her parents amended their trust to name the former estranged daughter as trustee, resigning as cotrustees. After the husband died, the mother amended the original family trust, which subdivided into Survivor’s and Bypass subtrusts upon death of husband, and under the amendment the entire estate was given to the formerly estranged daughter, disinheriting entirely the parents’ two other children. The mother died, and the two disinherited children filed a trust contest in which they contend both parents lacked capacity before father’s death and further alleged the amendment was the product of undue influence. They also filed a financial elder abuse complaint against their sister.
  • Settlor, a 75-year-old man, remarried after the death of his first wife of 40 years. Settlor created a QTIP Trust for his second wife which gave her an income-only interest in the QTIP on principal of $10,000,000. After the husband died, his second wife filed a petition to modify the trust to increase the income rights to a unitrust amount of 10% of principal annually based on a claim that her husband assured her the income each year would be a minimum of 10%, and the net income was about 4% annually. Settlor’s two adult children contested her petition.
  • A 45-year-old woman suffered severe brain injuries in a car accident, rendering her in a vegetative state according to one doctor’s opinion. She was placed on a ventilator and feeding tube. The woman’s mother filed a petition for conservatorship of both person and estate. The woman’s son also filed a competing conservatorship petition. The Court appointed the mother as conservator. The court also appointed a guardian ad litem for the conservatee. The GAL ultimately filed a petition in the conservatorship proceeding seeking whether the consent for life support should be withdrawn. The GAL also discovered information that the conservator had wrongfully disposed of assets of the conservatee.
  • Husband and wife were married in 2001, a second marriage for both of them. The husband had substantial assets going into the marriage, and his wife had few assets. During the third year of their marriage, the parties executed mutual wills in which each left their estate to the other on the condition they were living together as Husband and Wife at the time of death. The husband also transferred two parcels of real property worth about $1,500,000 into joint tenancy with his wife, although the transfer deed did not specifically state that he was computing his separate property to community property. The parties separated in 2015, and both parties immediately revoked the 2003 wills. However, the husband died in 2016 before the divorce was final. The financial records established approximately $225,000 in community property earnings had been used to make mortgage payments and pay real property taxes on the two parcels before the separation. After the husband died, his daughter filed a petition under Probate Code §17200 based on various claims that his wife had no interest in the two parcels or in the husband’s estate.

MEDIATION TRAINING

  • Straus Institute, Seminar, Advanced Mediation of Complex Cases, 2003 (2 hours)
  • Creative Mediation Training, Jan Stone & Peggy Williams, 1999 (25 hours)
  • National Dispute Resolution Center, Basic Mediation Seminar, 1997 (24 hours)
  • National Dispute Resolution Center, Credentials Program, 1997 (34 hours)
  • James Melammed & Los Angeles County Bar Association, Mediation Seminar, 1996 (25 hours)
  • San Diego County Bar Association, Basic Mediation Training, 1994 (24 hours)

EDUCATION

  • J.D., University of San Diego; San Diego, CA, 1971
  • B.A., Carson-Newman University; Jefferson City, TN, 1965

SELECTED PROFESSIONAL ASSOCIATIONS, ACTIVITIES AND HONORS

  • Member, San Diego County Bar Association, 1972-Present
  • Chair, Probate Section of San Diego County Bar Association
  • Chair, Probate Mediation Program, San Diego Superior Court
  • Judge Pro Tem, Probate Department, San Diego Superior Court
  • Member, State Bar Advisory Commission re: ADR Specialization
  • Member, Trusts and Estates Executive Committee, State Bar Association
  • CEB Continuing Education of the Bar Panels: Conservatorships; Special Needs Trust, Basics of Estate Planning, Basics of Probate; Advanced Trust & Probate Litigation; Blended Family Estate Planning
  • AV Preeminent rated with Martindale-Hubbell
  • San Diego Super Lawyers, 2009-Present
  • 2017 Top Lawyers in San Diego, San Diego Magazine

BACKGROUND

  • Analyst, Central Intelligence Agency, Washington, D.C., 1965 and 1968-1969
  • United States Navy, Medically Retired Officer, SEAL Team One, 1967-1968

Representative Cases

Probate, Estates & Trusts

  • An elderly man died in 2015, leaving behind an 82-year-old widow and 10 children. Primary assets in the family trust when he died were the family residence and a restaurant. After his death, one of the children sold the residence to another sibling based on his promise to take care of their widowed mother for balance of her lifetime. In 2016, the mother moved into her daughter’s home permanently; the daughter was then appointed acting trustee of the family trust. The mother also sold the restaurant to 4 other sons who were each making monthly payments to her of $1,500 for the purchase price of the restaurant. One son deposited $85,000 into a joint tenancy account between the mother and his sister, the acting trustee, which he claimed was the balance of the purchase price for the residence. However, the trustee transferred this $85,000 into a second joint tenancy account between the mother and another sister; this account was intended to be used for the mother’s care. The second sister subsequently borrowed $10,000 from this joint tenancy account, and the trustee claimed that she did not use the account funds for their mother’s needs. Trustee filed a trust petition under Probate Code 17200 claiming that all funds held in the second joint tenancy account as well as all funds owed for purchase of restaurant and residence were assets of the family trust. The petition also contends that the mother lacked mental capacity and was unduly influenced in connection with sale of the home and restaurant.
  • A husband and wife married in 1984, each their second marriage. In 2005, both husband and wife moved into a skilled nursing facility where they shared a room until 2010, when husband was transferred to a secured psychiatric unit at a licensed mental health facility based on findings that he was a danger to himself and to his wife. In 2011, the wife filed a petition in the Family Law Department of the Superior Court claiming she was entitled to financial support from her husband’s trust. The corporate trustee of the trust filed a petition in the Probate Department of the Superior Court seeking instructions regarding payments of support to the wife and whether it should resign based on nomination of husband appointing a granddaughter as trustee.
  • A husband and wife were married in 2012, and the husband, who owned substantial assets, transferred $500,00 in various savings accounts into joint tenancy with his new wife immediately. In 2015, he created a trust in which he specifically gifted all bank accounts equally between his wife and his 4 adult children. He died in 2016, and at the time of his death, 3 out of 5 of the joint savings accounts had been transferred into the trust. His wife contended that the 2 accounts still held in joint tenancy passed to her. The children contended that all savings accounts were shared equally by the wife and children. Briefs filed in the matter all based their claims on law under non-probate transfer rules under Probate Code §5000, et. seq.
  • A husband and wife created a trust in 1983. The wife died in 1998, and her widowed husband remarried in May 2003, one month before he died. His second wife filed an heirship petition in San Diego Superior Court asserting that she was entitled in an intestate share of her husband’s estate as an omitted spouse, while his 3 children objected, claiming she was barred from inheriting from the estate under Probate Code §259.
  • Trust dispute wherein an estate was left to 3 children of settlor. Under terms of the trust, the 2 homes owned by the trust could not be sold without consent of all 3 children. Trustee, a daughter, sold one of the properties without consent of one of her brothers. The court then appointed a successor trustee following the daughter’s resignation, who then signed a purchase agreement for sale of the second property without consent of the same beneficiary who did not consent to the first sale. Buyers contend they have an enforceable contract.
  • A husband and wife created a family trust which subdivided into two subtrusts upon death of the first spouse. The wife died in 2011, and her husband did not fund the survivor’s and bypass subtrusts during his lifetime. In early 2015, shortly before his death, the husband amended the trust to leave the entire trust to 1 of 3 children contrary to the terms of the trust, which left the entire estate in equal shares to the 3 children.
  • A woman divorced in 1969 and was awarded her family home in La Jolla as part of the divorce. In 2006, the woman’s son and his wife moved into the home to live with her. Her son died in 2013, and his wife claimed that they had originally moved into the home under an oral agreement that they would take care of the woman for the balance of her life in exchange for receiving the home when she died. Title to the home was changed from time to time to accommodate financing, and at the time of the son’s death, title was in his name alone. The woman claimed that she allowed her son and his wife to move into her home as an accommodation to them. She filed a Probate Code §850 petition claiming the home belonged to her.
  • Conservatorship dispute wherein a son lived with his mother for two years in a part-time caregiver role and took over the managing of finances for his mother. His sister was concerned their mother was not receiving proper care and claimed that their mother was a victim of financial abuse by her brother.
  • Dispute regarding financial losses suffered in Trust where trustee was local private fiduciary who refused to account to settlor’s adult children. Settlor, while living in his own home, had exhibited behavior of forgetfulness and irrational thinking. Settlor’s children had all been estranged from the parent for several years. His children filed a trust petition under Probate Code §17200 to surcharge and remove the trustee. Trustee contended children lacked standing, and settlor hired counsel to also contest the petition.
  • Settlor, an 80-year-old man, married a 55-year-old woman who was hired as his caregiver through an agency eight months prior to their marriage. Settlor’s son filed a petition for conservatorship shortly after the marriage. Settlor hired counsel to vigorously contest the conservatorship. Even though settlor had always enjoyed a loving relationship with all three of his children, he refused to communicate with them, vowing that he did not want to see them again.
  • Trust contest wherein an estranged daughter happily reconciled with her parents. Three years after the reconciliation, her parents amended their trust to name the former estranged daughter as trustee, resigning as cotrustees. After the husband died, the mother amended the original family trust, which subdivided into Survivor’s and Bypass subtrusts upon death of husband, and under the amendment the entire estate was given to the formerly estranged daughter, disinheriting entirely the parents’ two other children. The mother died, and the two disinherited children filed a trust contest in which they contend both parents lacked capacity before father’s death and further alleged the amendment was the product of undue influence. They also filed a financial elder abuse complaint against their sister.
  • Settlor, a 75-year-old man, remarried after the death of his first wife of 40 years. Settlor created a QTIP Trust for his second wife which gave her an income-only interest in the QTIP on principal of $10,000,000. After the husband died, his second wife filed a petition to modify the trust to increase the income rights to a unitrust amount of 10% of principal annually based on a claim that her husband assured her the income each year would be a minimum of 10%, and the net income was about 4% annually. Settlor’s two adult children contested her petition.
  • A 45-year-old woman suffered severe brain injuries in a car accident, rendering her in a vegetative state according to one doctor’s opinion. She was placed on a ventilator and feeding tube. The woman’s mother filed a petition for conservatorship of both person and estate. The woman’s son also filed a competing conservatorship petition. The Court appointed the mother as conservator. The court also appointed a guardian ad litem for the conservatee. The GAL ultimately filed a petition in the conservatorship proceeding seeking whether the consent for life support should be withdrawn. The GAL also discovered information that the conservator had wrongfully disposed of assets of the conservatee.
  • Husband and wife were married in 2001, a second marriage for both of them. The husband had substantial assets going into the marriage, and his wife had few assets. During the third year of their marriage, the parties executed mutual wills in which each left their estate to the other on the condition they were living together as Husband and Wife at the time of death. The husband also transferred two parcels of real property worth about $1,500,000 into joint tenancy with his wife, although the transfer deed did not specifically state that he was computing his separate property to community property. The parties separated in 2015, and both parties immediately revoked the 2003 wills. However, the husband died in 2016 before the divorce was final. The financial records established approximately $225,000 in community property earnings had been used to make mortgage payments and pay real property taxes on the two parcels before the separation. After the husband died, his daughter filed a petition under Probate Code §17200 based on various claims that his wife had no interest in the two parcels or in the husband’s estate.

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