Another Shiner – Court Confirms Hefty Fee Award to California Attorney General in Breach of Charitable Trust Action

In California, the Attorney General oversees charitable trusts. This responsibility includes bringing legal actions against trustees who breach their fiduciary duties. Government Code section 12598 provides that the Attorney General is entitled to recover from a defendant all reasonable attorney’s fees and actual costs incurred in an action to enforce a charitable trust. But what happens when the Attorney General is only partially successful in its case against the defending trustee of a charitable trust?

People ex rel. Becerra v. Shine (2020) ____ Cal.App.5th ____ provides the answer. The Government Code does not require a stringent analysis of whether the Attorney General has achieved all of its litigation goals or has been completely successful on every claim. Further, the Attorney General is entitled to attorney’s fees when it has generally accomplished what it set out to do, which in People v. Shine was to prove that Shine had breached his fiduciary duties and to recover funds for the trust. Continue Reading

California Estate Planning Disrupted by COVID-19 Virus and “Social Distancing”

Scientist in a laboratoryWhat a difference a few weeks make!  A month ago, the COVID-19 virus was a distant threat.  Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.

Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished.  Folks who never had estate plans also are seeking to get them done.

California’s estate planning formalities, however, create challenges in our pandemic situation. Continue Reading

Mind Your Notice in California – Even Remote Contingent Beneficiaries May Need to Be Served

It’s unremarkable that California courts require that notice be given to affected beneficiaries in trust and probate proceedings.  After all, the Fourteenth Amendment guarantees that no person will be deprived of life, liberty, or property without due process.  While contingent beneficiaries may not have received an inheritance yet, they may someday and so should know if someone’s trying to tamper with their potential payday.  But how far do notice requirements really go?  Must notice be given to beneficiaries who likely won’t ever get a nickel?

The California Court of Appeal wrestled with this issue in Roth v. Jelley (2020) ___ Cal.App.5th___, and held that beneficiaries who will only receive an inheritance upon the happening of an event (i.e., contingent beneficiaries) have a property interest in an inheritance and are therefore entitled to notice under constitutional due process requirements. Continue Reading

Openness and Transparency Help Avoid Trust Disputes – An Interview with Tracy Potts

Tracy PottsTracy M. Potts has nearly three decades of experience in California with estate planning, administration and litigation.  A Texas native, she earned her law degree from Southern Methodist University School of Law.  Her leadership experience includes chairing the Executive Committee of the State Bar of California, Trusts and Estates Section, as well as the Sacramento County Bar Association, Probate and Estate Planning Section.  She is a certified specialist in estate planning, trust, and probate by the State Bar of California, Board of Legal Specialization.  She also is a fellow of the The American College of Trust and Estate Counsel.

Tracy’s law firm, Legacy Law Group, operates from the Natomas area of Sacramento.  I sat down with Tracy at her office in February 2020 to discuss estate planning and dispute avoidance. Continue Reading

Judge Culhane Shares Thoughts on Sacramento County Probate Department

Judge Kevin R. Culhane rotated into Sacramento County Superior Court’s probate department in January 2020.  He shared his initial impressions with members of the probate bar on February 18, 2020, at the monthly lunch of the Sacramento County Bar Association’s Probate and Estate Planning Law Section.

Noting that probate filings are on the rise, he likened the business of the Court’s probate unit (Department 129) to trying to fit ten gallons of water into a five-gallon bucket. Continue Reading

I’m Still Standing – California Supreme Court Allows Trust Amendment Contests in Probate Court

Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) ___ Cal.5th ___, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200.

The Court of Appeal had narrowly construed section 17200 to limit contests in the probate department to current trustees and beneficiaries.  Continue Reading

Put It on My Tab – When Is a Lifetime Gift in California an Advancement Against Inheritance?

Pint of Craft BeerA primary purpose of estate planning is to determine what a child will inherit (if anything) upon a parent’s death.  But what about a gift given during the parent’s life?  Is it an advance on the child’s inheritance, like putting it on the child’s tab until the trust is cashed out?  Or is the gift in addition to anything the child will get upon the parent’s death?  The answer in California depends on the parent’s intent when the gift was made – more specifically, whether the parent wanted it to be an advance.  The problem is determining the parent’s intent after death.

California Probate Code section 21135 describes the circumstances under which a lifetime gift will be considered an advancement against a beneficiary’s inheritance.  In Sachs v. Sachs (2020) ___ Cal.App.5th ___, the Court of Appeal examined Section 21135 and concluded that a parent’s written records of lifetime gifts established them as an advancement against a child’s inheritance.  This opinion provides guidance to parents who make gifts and to siblings in conflict over them. Continue Reading

Marvin Claims Between Unmarried Partners Will Abound in Post-Marriage California – A Conversation with Jeffrey Makoff

Jeffrey MakoffOn November 20, 2019, California attorney Jeffrey T. Makoff presented to the Sacramento Estate Planning Council on the topic: “Welcome to the Post-Marriage World: How to Plan for a Generation That Says ‘I Don’t.’”

Jeff started with evidence that marriage rates have declined sharply from the Silent Generation (those born from the mid-1920s to the mid-1940s) to the Millennials (those born from about 1981 to 1996).

California’s elaborate Family Code establishes property rights between married persons, resting on the concept of “community property.”  But what happens when unmarried folks start or run businesses together, or make other financial deals, during an intimate relationship?  Jeff explored the complexities associated with the legal relationship between partners who are neither married nor registered domestic partners. Continue Reading

California Assisted Living Residents Are Vulnerable to Financial Elder Abuse

Senior woman and caregiverAs our population ages, more of our seniors are moving into assisted living facilities.  The number of such facilities has nearly tripled over the past two decades, with construction of memory care units the fastest-growing segment of senior care.  Half of assisted living residents are age 85 and older, and over 40 percent have some form of dementia.

In “How Not to Grow Old in America,” an article by Geeta Anand in the New York Times last year, the author discusses caring for her parents, notes the above trends, and argues that if assisted living “is to be a long-term solution for seniors who need substantial care, then it needs serious reform, including requirements for higher staffing levels and substantial training.”  She cites examples of deaths and injuries that have befallen seniors at assisted living facilities in California and elsewhere.

While Ms. Anand’s focus is on the physical care of seniors in assisted living, the transition from a home environment to an assisted living environment also can lead to serious financial elder abuse. Continue Reading

California Courts May Invalidate Right of Survivorship in Joint Accounts

Right of Survivorship in Joint AccountOften an aging parent will add an adult child to the parent’s account as a joint holder to assist with asset management or bill payment.  However, this may lead to an unintended result in California when the parent dies.  The child, as surviving account holder, may get all of the account proceeds even if the parent wanted them shared among a group of beneficiaries.

Provisions of the California Probate Code set ground rules for the treatment of joint accounts, but the statutory language is not crystal clear.  In Placencia v. Strazicich (2019) 42 Cal.App.5th 730, the Court of Appeal clarified that the intent of the person who established the account is paramount such that the surviving account holder’s presumed right of survivorship can be overcome by just about any sort of admissible evidence, as long as it is clear and convincing.  The survivor just may have to share the piggy bank.  Continue Reading

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