You’ve probably heard that “He who represents himself has a fool for a client,” an adage dating back to the 17th century and commonly attributed to Abraham Lincoln (but not by me – I first heard it on an episode of Frasier). Regardless of its provenance, it’s commonly understood to mean that if
We write today about probate law, premarital agreements and the importance of doing your homework.
In Estate of Eskra (2022) 78 Cal.App.5th 209, the First District Court of Appeal upheld a Humboldt County Superior Court decision to enforce as valid a premarital agreement that a surviving spouse signed without reading. How did the surviving
Can a California will sever a joint tenancy such that the decedent’s interest in real property passes per will’s terms instead of vesting in the surviving joint tenant(s)? Additionally, when a general partnership dissolves after the death of a partner’s spouse, does the deceased spouse’s estate have a community property interest in the distributed partnership assets?
While Disneyland may be the “Happiest Place on Earth,” a California probate court may be the opposite for a Disney heir, mused the U.S. Court of Appeals in Lund v. Cowan (9th Cir. 2021) 5 F.4th 964. Bradford Lund, a 50 year-old grandson of Walt Disney, sued the probate judge who rejected a settlement
What court should hear a dispute over a California trust? I briefed this question last month when a judge questioned if a case should instead be adjudicated in neighboring states. Such jurisdiction issues come up occasionally given the mobility of family members with interests in trusts.
A recent appellate case, Van Buskirk v. Van Buskirk (2020) 53 Cal.App.5th 523, shows the “long arm” jurisdictional reach of California courts in trust litigation. California courts may leap, catch and decide disputes even when nonresident parties would prefer to litigate elsewhere.
Getting a civil or probate case to trial in California can take a long time. The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed. While most California trust and estate disputes do not require juries, a multi-day court trial remains a challenge in a pandemic
Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard.
In Conservatorship of O.B. (2020) 9 Cal.5th 989, the Supreme Court held that “when reviewing a finding that a fact has been
In California, a trustor (person who creates a trust) can confer a “power of appointment” on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust. The trustor can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to
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.
A 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) 44 Cal.App.5th 59, 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.