Asset Distribution

Subscribe to Asset Distribution via RSS

I’m a sibling lawyer.  My career started early, as a middle child, and now continues as a Sacramento-based trust and estate litigation attorney.  Most of my clients are grappling with sisters or brothers over the care and finances of aging or deceased parents.  In Family Feud parlance, my “survey says” that sibling versus sibling is the top category of matchups in California trust and estate disputes.

Will this happen in your family?  What leads siblings to litigate?  In many of my cases, cracks in family relationships were evident long before anyone filed papers at the courthouse.  But I’ve had many clients tell me they were always close to their siblings and “never saw it coming.”

Businessman running with butterfly net chasing money which is flying in the air. Finance business concept.

Trustees in California trust disputes should not overlook the power of the constructive trust remedy as a way to recover errant trust assets.  That’s a takeaway from Higgins v. Higgins (2017) 11 Cal.App.5th 648, an opinion in a trust litigation case published last week by the California Court of Appeal.

A Los Angeles Superior Court trial judge found a “clear moral obligation” on the part of Lupe Higgins to return several hundred thousand dollars to the Higgins Family Trust, but could not find a legal obligation, so the judge apologized to the Higgins family for being powerless to restore the funds.  The appellate court did not like the sound of that music and came to the rescue, ruling that the trial court had discretion to compel Lupe to transfer the money to the trustee of the Trust.

On March 23, 2017, at the request of a certified question from the U.S. Ninth Circuit Court of Appeals, the California Supreme Court answered the age-old question – “what gives”?

That is to say, what gives – the impenetrable wall of a spendthrift trust or the ability of a bankruptcy trustee to tap trust funds for the benefit of the bankruptcy estate?  The answer is neither really, but our state Supreme Court did clarify the appropriate reach of creditors into trust-protected assets in light of what the Ninth Circuit observed as “opaque” statutory provisions in the California Probate Code.

Woman in backseatActing as a trustee can be a thankless and time consuming job, especially when the reward at the end is nothing more than second-guessing from trust beneficiaries.  In our Sacramento-based trust and estate practice, we represent trustees who have strained relationships with beneficiaries, whether their siblings, step-relatives, or otherwise.  One useful tool to help trustees manage those relationships is the Notice of Proposed Action.

The notice procedure allows a trustee to obtain immunity from breach of trust claims without (1) obtaining an order from a California probate court, or (2) waiting three years for the statute of limitations on breach of trust claims to run.

Deed TransferCalifornia’s new transfer on death deeds (“ToD deeds”) allow for the transfer of real estate upon the occurrence of death without the need for costly estate planning or probate administration. Codified at California Probate Code section 5600 – 5696, the new mechanism may fill a void in the array of estate planning options, but it is not likely to catch on with traditional estate planning attorneys for the reasons discussed below.

Fresno attorney Mark Poochigian presented a thoughtful and at times critical assessment of ToD Deeds at a Sacramento County Bar Association luncheon in June. At the Summer Education Conference of the California State Bar Trusts and Estate section, only one of the more than one hundred attorneys in attendance acknowledged having prepared one of these new deeds since the law went into effect on January 1, 2016.

CrownPrince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will or trust) provides an occasion to muse on the “Controversy” that can erupt in California courts when a person of even moderate means lacks an estate plan, while recalling several song titles along the way.

Neon Bar SignAt the Sacramento Estate Planning Council’s 2016 Technical Forum on Tuesday an elderly gentleman sitting next to me said “old accountants never die, they just lose their balance” and “old attorneys just lose their appeal(s).”  Sometimes both happen when an unbalanced accounting results in a lost appeal.  The California Court of Appeal issued a rare decision on January 6, 2016 concerning trust accountings, finding in Gray v. Jewish Federation of Palm Springs and Desert Area that Probate Code section 16373 allows a trustee to rob Peter to pay Paul (as long as Peter gets his money back eventually).