(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
What are the ethical obligations of a California lawyer for a client with diminished mental capacity? The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with public comment due by August 24, 2021.
While all lawyers may represent clients who have questionable capacity, the
Intentional interference with expected inheritance (IIEI) was recognized as a legal claim in California about eight years ago in Beckwith v. Dahl (2012) 205 Cal.App.4th 1039. Last week, the Court of Appeal issued the first published opinion in California that affirms a judgment in favor of a plaintiff on an IIEI claim, thus providing
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
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
What 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.
Tracy 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.
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.
As 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.
A recent California appellate case, Stewart v. Superior Court (2017) 16 Cal.App.5th 87, validates the primacy of medical powers of attorney and (as they are more currently known) advance health care directives. Medical providers who disregard the instructions of duly-appointed health care agents by providing unauthorized treatment may be liable in California for elder abuse in addition to medical malpractice.
We focus our blog on the financial aspects of California trust and estate disputes. But, as we increasingly become involved in “parent custody” fights and other conflicts over the care of elder and dependent adults, it is important to understand the authority vested in an agent under a health directive.