California probate courts may appoint guardians ad litem (“GALs”) to represent the interests of those who cannot speak for themselves, including minors. While Probate Code section 1003 provides for the appointment of GALs, it does not speak to their removal. A recently published opinion, Chui v. Chui (2022) ___Cal. App. 5th ___ (“Chui II”) attempts, in … Continue Reading
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 spouse … Continue Reading
California trust disputes often involve the interests of parents and their minor children. Sometimes those interests conflict. When disputes are settled, who looks out for the interests of children under 18 years of age? Who checks that no child is left behind? Probate judges, as explained in a prior post, may appoint a guardian ad … Continue Reading
We begin the year with a case, Riverside County Public Guardian v. Snukst (2022) ___ Cal.App.5th ___, involving an elder with dementia who received Medi-Cal benefits. The case, a blast from the past, illustrates how the State of California, under the law in effect until several years ago, could recoup the cost of such benefits … Continue Reading
Daniel Spector has litigated trust and estate cases in Northern California since the early 1990s. He is now focusing his practice on mediating trust and estate disputes across California, working with Judicate West. Dan is a colleague on the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, and I thank … Continue Reading
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 agreement … Continue Reading
(Editor’s Notes: Lauren Murvihill is a summer associate at Downey Brand. She is a student at UC Davis School of Law. In September 2021, after publication of this post, the Governor approved Senate Bill 315.) The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding … Continue Reading
A common misperception of trusts is that they are legal entities that, like corporations, can hold title to real estate and other property. A new California appellate decision, Boshernitsan v. Bach (2021) 61 Cal.App.5th 883, addresses that misunderstanding.… Continue Reading
(Editor’s Note: This post has been updated following the Court of Appeal’s opinion after rehearing on April 5, 2021, and the Supreme Court’s subsequent denial of review or depublication.) Trust and estate litigators, and mediators, are buzzing over a recent decision from the California Court of Appeal that validates mandatory mediation of trust disputes. In … Continue Reading
One of the first steps before filing a lawsuit is to decide which court has jurisdiction over it and where it is properly venued. It’s a significant choice – not only for strategic reasons, but also because a poor selection may prove fatal to the lawsuit. Such a hefty decision is not always an easy … Continue Reading
Providing for your children is one of the primary purposes of estate planning, but what happens to your carefully crafted trust if you had children you did not know about when you created the trust? Or, what if you have children after you create your trust but never get around to amending the trust to … Continue Reading
Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die. It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
Often 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 … Continue Reading
Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes property through undue influence, or who takes property through the commission of financial elder abuse. While the first … Continue Reading
While institutional trustees may have once slept soundly considering themselves immune from class action lawsuits relating to the purchase or sale of securities on behalf of a trust, the Ninth Circuit’s recent ruling in Banks v. Northern Trust Corp. (9th Cir. 2019) 929 F.3d 1046, sounds a rousing wake up call for every trustee who … Continue Reading
When a man dies in California, who gets the proceeds of his life insurance policy? The answer seems obvious: the named beneficiaries in the paperwork received and accepted by the life insurance company. But what if the man gave the policy away during his lifetime? Can he cancel the gift and redirect the proceeds to … Continue Reading
American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.” There are, of course, exceptions to this so-called “American Rule.” Among them is the “common fund” exception, which provides that one who incurs fees winning a lawsuit that creates a fund for … Continue Reading
When attorneys advise errant trustees, how vulnerable are they to breach of trust claims by injured beneficiaries? A case published last week by the California Court of Appeal provides a defensive roadmap to attorneys who are sued for such claims, along with an occasion for golf metaphors. In Cortese v. Sherwood (2018) 26 Cal.App.5th 445, … Continue Reading
Your ex-spouse may take under your life insurance policy if you do not change your beneficiaries and there’s nothing a California probate court can do about it. So ruled the Court of Appeal last month in Estate of Post (2018) 24 Cal.App.5th 984.… Continue Reading
No contest clauses are an ever-evolving area of the probate law in California. The Court of Appeal further refined the rules governing no contest clauses in a decision issued last week, Aviles v. Swearingen (2017) 16 Cal.App.5th 485. In brief, in order for a no contest clause to apply to a trust amendment, the no … Continue Reading
One of the most dramatic areas of California trust and estate litigation is no contest clauses. No contest clauses bring a made-for-tv excitement to the practice of trust and estate law because of the risk of disinheritance. Yet such clauses are widely misunderstood, even among attorneys.… Continue Reading
California probate courts may appoint guardians ad litem (“GALs”) to represent the interests of those who cannot speak for themselves, including minors. While Probate Code section 1003 provides for the appointment of GALs, it does not speak to their removal. A recently published opinion, Chui v. Chui (2022) ___Cal. App. 5th ___ (“Chui II”) attempts, in … Continue Reading
