her passed away on december seventh twenty ten with a carefully thought out estate plan his assets were titled in the name of its trust and if any of the warrants title that way he had paid or of her will that would have distributed those assets to his trust initially it appeared his plan was working there was less than one hundred thousand dollars in non trust assets in his estate the try executors and try trustees working with his estate planning attorney executed a small estate affidavit they transferred his non probate assets to the trust they read about the status of the remainder of his assets as trust assets and they were moving forward with the trusted ministration without probate and its associated transaction costs just like salvatore intended then after a few months of that things started to fall apart as his surviving spouse started to disagree with how those assets were being administered and made claims to that either they should be outright owned by her or should pass through probate this appeal involves two wished it two issues that were decided contrary salvatore's intent dealing with two classes of assets the first class of assets is the legacy treasury direct accounts after salvatore died the children no one agreed that these belonged in the trust they signed a small estate affidavit affirming that they were trust assets and they actually transferred the assets into the trust then his surviving spouse helen decided she didn't like that outcome and the asset should be removed from the trust  into the trust they actually transferred them into the trust they use affirmed on an affidavit that they belonged in the trust and then she decided that hey let's try and do this again because i've now decided i don't like the outcome of it  their argument is that to a five i'll see a six twenty five slash three establishes the default provisions of that should be used to control how these assets are are distributed and i'm sorry i'm sorry i'm getting ahead of myself i apologize their argument is that these were never that these were non probate assets and that it should be possible to open a probate and deal with them the there are two problems two fundamental problems with that one is that it is clear everyone agrees that salvatore's intent was for these to be the state assets or to be trust assets they that was shown by the affidavit that they signed and and it's also shown by the language of the fact that salvatore had to pour over will which would have alamy judicial admission that cannot now be reversed the law here is that where an affirmation is made under oath such as in an affidavit or in a deposition those are considered to be admissions that cannot be reversed and that is what is that is the case here with the small the state affidavit you know the banks rely on these small estate  affidavits the courts rely on them so that probates don't need to be opened in every case ellen admitted that she was acting in everything you shared responsibility when she was transferring working to transfer these assets testament was never admitted into probate but the small estate affidavit is what administered this estate and so to go back and argue that we now need to have a fight over whether a copy of the apparent allegedly the original cannot be found but it's incredibly inefficient to go back and have a fight over whether a copy of this will can be if admitted when we have all of this non litigation induced evidence that s submitted a second petition she would minister the estate intestate apparently determining that actually she didn't like the idea of administering the missing will realize that as well there are yes at some point  i i believe that a there was there were some cross petitions even with the issue but the essential point is that that was not needed in this case it was dealt with and and in a case in a case in particular where there's a missing will that's a substantial amount of additional costs on added on to this in ministration the small estate ethic statute exists specifically so that small estates less than one hundred thousand dollars don't need to deal with the process of probate and in particular probate with the missing will or even worse probate w probate as a state assets or through the trust and the second set of assets are either going to be trust assets or they are not trust assets they are not state ask that's uncertainly and again that's very large estate sometimes employ small estate at david's just simply because there's some asset often it's a car that has not been included in the trust and they don't want to have to spend five ten thousand dollars just to move that assets when you have a fight when you have a disagreement you often have to go to probate but these people made a decision that they didn't have a fight they administered it they went so far as to move the assets and the law it all fell apart when it makes sense  the wanted and laugh at the people who want and that's what you do then switching to the cops to the accounts to the bank direct accounts six twenty five slash three is the statute that everyone agrees applies it provides a default provision in the event that there is no agreement written agreement incorporated into the titling of the trust account or the titling of the bank accounts and in the event that there is a written agreement incorporated in it then directs to look at that written agreement to determine how to administer the assets and then that particular  aren't by the essentially this is a this is a contract construction case and intent controls in the contract construction the legislature has said that any particular set of signature cards which are fundamentally contracts where there is no written agreement incorporated then it lays out how the courts should go about construing it essentially provides a default provision however in the alternative where there is a written agreement the normal rules of construction apply and here they weren't followed the this card is unambiguous everyone agreed that the card incorporates that th card title the assets in the name of the trust the lawyer who set up the trust agreed the bank agreed ellyn originally agreed in two separate e mails and the trust directs that anything that vaguely looks like it's titled in the name of this trust belongs to the trust that was salvatore's intent also shows that the deceiving believed that this was titled in the name of the trust that what the trial court did was frankly the opposite of trust construction it said it correctly observed hey there is a written agreement that is referenced in this document let's go look at it which is exactly what the statute provides it then found a minor inconsistency or what it perceived to be an inconsistency with the judge perceived to be an inconsistency between the two and said oh all right this document actually is not the controlling document and so we will go back and and interpret this according to the default the sole inconsistency is that the signature card identifies two names it says salvatore herrera and ellen comma ellen ferreyra as trustees for salvatore the forever trust dated whatever the so the the court then said hey these two people were not co trustees at the same time therefore it's inconsistent therefore this document can't control so essentially that document then became states that if it appears that something is titled in my trust and we believe this was actually correctly titled in the trust then that would apply then then the asset should be considered title in the trust the trust document also states that the term trustee can refer to a successor trustee as well as current trustee so there is in fact is and is no ambiguity or inconsistency between the two documents  as to what was actually written in the titling you know aside from i think that one inconsistency mentioned in the blue brief the otherwise the parties have consistently agreed that what it says is  card doesn't incorporate that document there would have been no need to ever go look at that the moment the trial judge looked at what that other document was it meant that that either the card is ambiguous and it needed to decide that it is the court the i think why would you say that and why would anybody here i think your honor the reason is obviously there's no dispute that the trust document the trust agreement is referenced in it and so at a minimum the common practice of bankers lawyers the instructions that are given when titling these assets is when you reference end again that is consistent with how the trial court actually ended up reviewing this which was let's go look at the agreement it's also consistent with how so it would have alan has suggested we look at this by saying hey you do need to go look at this and then see that these people were not co trustees at the same time we'd argue that that's not relevant but certainly that first step of looking at the trust agreement to understand what's going on is consistent with our position that this document was rumors the key issue here again is is intent and while while the trust didn't provide for them to trustees at the time there is the fact that the trust says any reference to the word trustee includes both current and future and also again if you're going to look at the trust you need to look at it as a whole we don't know what salvatore was thinking when he signed the signature card we we can guess we can all speculate why he changed the card at that time but the best he added and so that his intent is his provision that for the purpose of transferring property to my trust no longer make his own decisions we can only speculate the trust document provides the best evidence the trust document is what the court looked to it's what ellen has said we should look to and it is what we believe that six twenty five three says we should look to to understand his intent was this the the funny verification we were before the two thousand and ten funding verification report with the march twenty ten funding or included these accounts in it so it also six twenty five slash three that statute has nothing to do with intent isn't the intent of that statute is to make sure that banks have an easy out that there are no disputes over accounts and when they are they can be resolved simply and easily by saying that they are joint tenancy with right or survivorship this particular in this particular county i think one thing at the appellant has not provided you with is a nice timeline the march funding report which was march two thousand and ten nine months before he died it listed that account in his name as trustee under his trust agreement if he left it alone if he left it just like that we wouldn't be here today that account would be clearly controlled by the trust because it would have the dentist by the trustee it would have identified the trust instrument and arce this statute would not apply instead of at all in may and may of two thousand and ten you know six seven months before he died he wanted to make a change he presented his wife with a blank signature card it didn't list accounts it didn't was the title and he presented to an answer to sign it she asked him why he was doing that he said that he wanted her to have access to the account to be able to if you want to talk about intent that i think is i think his actions are clear that he wanted something different with respect to this account than other assets he didn't i think it's i think it's pretty and if you want if if he wanted something he wanted that trust agreement to control he would have left it alone and instead he made a change and it's i think it's interesting to note that he didn't and on the other his son vincent or his son tony to that account which would be consistent with the trust terms which i think would then lead to the idea that this would be he written trust agreement was ellen to become the sole trustee then at that point because what do you know the trust really doesn't never provides for quote trustees so it never really provides for what should happen if in that event so we have a look there are a lot of different questions that would need to be answered and why did he change all of his accounts this way why is just these and i think those are those are issues that in a sense start to cook for me a sense start to show why it's it you know that there are there are really answers that the  that's been around for a long time and it has but i think the art of the idea behind that is to try to make it crystal clear about what and not to have intent be an issue about about about how that account should be told how to truly they brought a petition for declaratory judgment to determine what the title of this is they didn't bring a an action for a resulting trust they don't bring an action for a constructive trust but you know and so in a sense what we're looking at truly is is a question of title a that a small states have a david is an alternative to probate and it is but it's only in certain situations and it's in a sense it's not to it you can't use it to perform a fraud on a creditor if there's a dispute between the parties you can't use it and if there is something if there is something about the validity of a will or whether it's admissible it certainly can't you know it really isn't appropriate point but what was your client that filed it for me my client did was under might my client was really poorly you know it was it was was represented by a council who represented the other two coach trustees who had a best interest in a sense in making sure that the estate plan was that they drafted and that they had represented the person for ten years and carefully putting together you know they had a they had an interest in trying to what the issue here it should be for the trial court doesn't who ultimately should benefit from these assets but rather are these a state assets the question of who ultimately benefits is what we do probate for the process of determining creditors rights ears rights correct me if i'm not observing this correctly ok you said earlier that before may two thousand and ten mr ferrara it mccown that list of themself is trustee for his trust tenancy they would pay sometimes they sometimes in a sense put their own to impose their own will on what that should be done and if if a copy if a person isn't strong willed about it may go along with it so i suppose we don't know it we don't know very briefly on the legacy direct accounts you know the issues you raise the question of who benefits is a separate proceeding from what is a probate account is something that was raised by one's counsel the if there was a creditor or if there was beneficiary who was not it a fiduciary those then maybe it would be appropriate to force of them probably proceeding but here everyone decided what were the probate or what would have been the probate assets and where they should go early on and again they're just asking for a do over of that that setup for it did change the card in june two thousand and ten we don't know why we know that there's an affidavit that was produced during the litigation which us speculates about why we also know that their earlier admissions by the but and i think more important than that though is that the litigation induced hidden statements are less reliable than what she said prior to litigation being started this goes along with fact there are many answers we can't questions we can't address here we absolutely admit that we don't know why he did it we don't know why they didn't change other cards just as stated but the point of all of that is that we need to if there is a question about intent we need to look at what the best  other related issue was that the statement the six twenty five slash three has nothing to do with intent and the card does not say she joins hands with rights of survivorship which you raised earlier we could not find  any any cases dealing with the statute but we did find were cases dealing with her death accounts which are in some ways similar there are still contracts the signature cards and what those cases said is any time there even if there is technical conformity to the statute if there is a question of intent that has been raised it is appropriate to then engage in construction analysis so the statute even when it is technically been satisfied which we disagree that it has in this case but even if you find it has been  because there are questions about intent because there are questions about ambiguity these it is appropriate to engage in the construction analysis that necessarily requires looking at the trust document and the trust document is pretty clear about what salvatore intended and we dress that on page twenty six of also mention that i think there's nothing in the record about the blank card that allen was presented with although again i think that's not relevant because again the best evidence of intent is the statement indictments thank you very much we arguments thank you for the briefs this case