Category: Inheritance Disputes

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Why Contingency Fee Representation Is Hard to Obtain in Trust and Will Contests

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Legal Expenses, Mental Capacity, Undue Influence, Will/Trust Contests
We often receive inquiries about whether we will represent parties in California trust and will contests on a contingency basis.  In contingency representation, the lawyer does not collect a fee unless the client obtains a favorable settlement or court judgment.  Contingency fees usually are structured on a percentage basis, with the lawyer receiving perhaps 25-40 … Continue Reading

Play It Again: No Contest Clauses Must Be Referenced In Each California Trust Amendment

By Tyson E. Hubbard and Silvio Reggiardo, III on Posted in Appeal, Beneficiaries, Estate Planning, Inheritance Disputes, No Contest Clauses, Trust Administration
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) ___ Cal.App.5th ___.  In brief, in order for a no contest clause to apply to a trust amendment, the no … Continue Reading

Anti-SLAPP Case Features Arm Wrestling Siblings and a Prep School

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Legal Expenses, No Contest Clauses, Probate, Trust Administration, Will/Trust Contests
California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder.  Last week, in Urick v. Urick (2017) ___ Cal.App.5th ___, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses. The opinion reminds California trust and estate counsel to be … Continue Reading

Look! Up in the Sky! It’s Sibling Lawyer!

By Jeffrey S. Galvin on Posted in Advance Health Care Directives, Asset Distribution, Conflict Avoidance, Inheritance Disputes, Trust Administration
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 … Continue Reading

Take It or Leave It: The Perilous Decision of Whether to Violate a No Contest Clause

By Tyson E. Hubbard on Posted in Beneficiaries, Conflict Avoidance, Creditor Claims, Estate Planning, Inheritance Disputes, No Contest Clauses, Trust Administration, Will/Trust Contests
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

A Sacramento Estate Planner Shares Thoughts on Conflict Avoidance

By Jeffrey S. Galvin on Posted in Conflict Avoidance, Inheritance Disputes
I asked estate planning attorney John Goralka, of the Goralka Law Firm in Sacramento, to share his thoughts on working with clients to avoid disputes over their estate plans. John has been a lawyer since 1988.  The State Bar of California has certified him as a specialist in both Taxation Law and Estate Planning, Trust … Continue Reading

Notice of Proposed Action May Quiet Back Seat Driving Beneficiaries

By Tyson E. Hubbard on Posted in Asset Distribution, Beneficiaries, Conflict Avoidance, Inheritance Disputes, Trust Administration, Trustees
Acting 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 … Continue Reading

California Trust Conflict Avoidance – A Bank Trust Officer’s Perspective

By Jeffrey S. Galvin on Posted in Bank Trust Departments, Conflict Avoidance, Inheritance Disputes
This week we share a perspective on California trust conflict avoidance from Chris Ann Bachtel, who is a Senior Vice President and trust manager at First Northern Bank, a regional bank founded in 1910 with branches across Northern California. Tell us about your background. I majored in Speech Communications and Theater at Wake Forest University.  … Continue Reading

Are California Trusts that Favor Spouses Presumptively Invalid?

By Jeffrey S. Galvin on Posted in Family Law, Financial Elder Abuse, Inheritance Disputes, Undue Influence
When Wife works with her Sacramento estate planning lawyer to favor her Husband over her children from a prior marriage in her trust, does California law presume that Husband exerted undue influence over the Wife to gain a benefit?  Until 2014, most California trust and estate lawyers would answer that question in the negative.  Favoring … Continue Reading

When Does Bad Behavior in Trust and Estate Disputes Become Criminal?

By Jeffrey S. Galvin on Posted in Financial Elder Abuse, Inheritance Disputes
Many trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail? While many of my clients are rightfully outraged about … Continue Reading

California Courts Interpret Ambiguous Trust Documents by Stepping Into Creator’s Shoes

By Karina R. Stanhope on Posted in Inheritance Disputes, Trust Administration, Will/Trust Interpretation
Guest author Karina Stanhope, a Downey Brand associate, contributes today’s post. Trust documents should be customized to serve the estate planning objectives of those who create them. While Parent One may want all of her assets to be distributed in equal shares to her children, Parent Two may want to exclude a child from receiving … Continue Reading

Court in California Trust Contest Invalidates Transfer to Drafting Attorney

By Jeffrey S. Galvin on Posted in Evidence, Inheritance Disputes, Undue Influence, Will/Trust Contests
  “An ethical estate planning attorney will plan for his client, not for himself.” With those words, the California Court of Appeal recently ripped Southern California attorney John LeBouef for taking advantage “of an elderly and mentally infirm person to enrich himself.”  In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the … Continue Reading

Watch Out for SLAPPs in California Trust and Estate Litigation

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Legal Expenses, Probate, Trust Administration, Will/Trust Contests
In heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother … Continue Reading

Til Death Do Us Part: California’s New Transfer on Death Deeds

By Tyson E. Hubbard on Posted in Asset Distribution, Estate Planning, Inheritance Disputes, Non-Probate Transfers
California’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 … Continue Reading

“You Don’t Have to Be Rich” to Need a Plan

By Jeffrey S. Galvin on Posted in Advance Health Care Directives, Asset Distribution, Inheritance Disputes, Probate, Will/Trust Contests
Prince 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 … Continue Reading

Alzheimer’s Disease Requires a Close Look in California Trust Litigation

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Mental Capacity, Undue Influence, Will/Trust Contests
For a richly-detailed profile of a woman’s experience with Alzheimer’s disease, read “Fraying at the Edges,” an article by N. R. Kleinfield that appeared on May 1, 2016 in the New York Times. The author follows Geri Taylor, who was first diagnosed with Mild Cognitive Impairment in 2012 at age 69, and introduces us to … Continue Reading

Undue Influence – A Titanic Challenge for Estate Planning Attorneys

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Undue Influence, Will/Trust Contests
Spotting undue influence is no easy task for estate planning attorneys. When Mom wants to change her trust to favor Sally over Johnny, Mom presumably is making her own choice for her own reasons. But it’s also possible that Sally, behind the scenes, is pushing Mom to make the change. An estate planner is like … Continue Reading

How Fictional Is John Grisham’s Novel About a Will Contest?

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Mental Capacity, Undue Influence, Will/Trust Contests
On a road trip over the holidays, I listened to John Grisham’s Sycamore Row, as artfully read by Michael Beck. Published in 2013, it’s a sequel to Grisham’s first novel, A Time to Kill, and again features young country lawyer Jake Brigance. This time, instead of an accused man, he’s defending the handwritten will of … Continue Reading

You May Have to Challenge Mom’s Trust Amendment Before She Dies

By Jeffrey S. Galvin on Posted in Conservatorships, Inheritance Disputes, Mental Capacity, Will/Trust Contests
Most will and trust contests in California start several months after the death of the person who created the document. Such litigation has a forensic quality: did Mom have sufficient mental capacity back when she signed the will/trust, or was she the victim of undue influence? Mom is not around to testify as to what … Continue Reading

Put Up Your Dukes: Courts Can Fix Mistakes in Wills … Sometimes

By Jeffrey S. Galvin on Posted in Inheritance Disputes, Probate, Will/Trust Interpretation
Sound estate planning requires a clear description of how property will pass upon death – in other words, who gets what. So what happens when the written terms differ from what the will’s creator actually wanted? Earlier this year, the California Supreme Court ruled in Estate of Duke (2015) 61 Cal.4th 871 that courts may … Continue Reading

The Rising Tide of Trust and Estate Litigation

By Jeffrey S. Galvin on Posted in Beneficiaries, Inheritance Disputes, Trust Administration
Inheritance fights are nothing new, nor is public fascination with them. Charles Dickens published Bleak House in 1853, satirizing the English legal system in the context of the fictional case of Jarndyce v. Jarndyce. More recently, John Grisham’s Sycamore Row, released in 2013, was at the top of the New York Times best seller list. … Continue Reading
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