Inheritance Disputes

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A key feature of a California revocable trust is that it can be amended.  Revising a trust can, however, seem like an irksome chore so it’s common for creators of trusts (i.e., “settlors” or “trustors”) to shrug off an amendment until it becomes clear they have limited time to settle their affairs.

Such procrastination invites mistakes, including failure to comply with a trust’s built-in procedure for amendments.  Indeed, while many trust instruments do not specifically prescribe how they may be amended, others do – often requiring “delivery” of the amendment to the trustees or settlors, that the amendment be signed, or both.

What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s achingly obvious that he intended to amend his trust?  Should a court rigidly bind him to the modification procedure or should it follow what seem to be his dying wishes?  The California Court of Appeal faced this conundrum recently in Pena v. Dey (2019) 39 Cal.App.5th 546.  The court required strict compliance with the trust’s modification procedure, rejecting a Post-it® note as satisfying a signature requirement. …

Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A crafty and crooked caregiver may go so far as to marry his or her client as part of a scheme.

The California Legislature has closed loopholes in the Probate Code that allow abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, signed by Governor Newsom on June 26, 2019 and effective on January 1, 2020, creates a presumption of undue influence that applies in two scenarios. The Trusts and Estates Section of the California Lawyers Association sponsored the bill and the California Judges Association supported it.…

In the absence of a trust that allows assets to pass without opening probate, the California probate process lasts for at least six months and can run much longer depending on the size of the estate and the nature of assets. The role of the personal representative (i.e., the “executor” if nominated in the will) is to administer the estate efficiently, resolve creditor claims, and get the assets out to the rightful beneficiaries.

By no means, of course, is the probate process supposed to drag out for two decades. That’s exactly what happened, however, in a case in Riverside County Superior Court. In Estate of Sapp (2019) 36 Cal.App.5th 86, the California Court of Appeal affirmed the probate court’s removal of the personal representative, providing guidance as to when a representative may be removed. As the opinion indicates, probate is no time for napping by the personal representative or the beneficiary: the former has a fiduciary duty to get the job done and the latter may need to poke the dozing, inept and/or corrupt representative.…

No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an…

Many California will and trust disputes arise from ambiguity in the document with respect to who is entitled to an asset.  Maybe the document was hazy from the start or perhaps circumstances have changed such that the rightful recipient is no longer clear.

Two cases decided in the California Court of Appeal last year illustrate the conflicts that surface over interpreting wills and trusts.  In both cases, coincidentally involving 35 percent shares, the appellate courts overruled the trial courts, nicely illustrating the complexities of will and trust interpretation.  California Probate Code sections 21101-21118, though obscure, can be pivotal in the analysis.…

Trust and estate litigation attorneys are “trusted advisors.”  Like estate planning attorneys and other professionals who help clients with wealth management, we are fixers who assist clients with navigating conflict relating to a trust or estate.  While we spar in the probate departments of the Superior Court of California, at the end of the day our main function is to advise clients so they can choose a resolution that fits their needs and is achievable in the situation at hand.

The role of litigator as trusted advisor came to mind last week as I sat at McGeorge School of Law listening to Todd Fithian’s upbeat and insightful presentation on the subject of “Amplifying Your Brand.”  Todd spoke at the Sacramento Estate Planning Council’s annual Estate Planning Forum event which offers outstanding continuing education and serves as a collaboration incubator for professionals in various fields.…

When musician Prince Rogers Nelson died at the age of 57 on April 21, 2016, he had no estate plan in place, not even a will.  We blogged that “You Don’t Have to Be Rich to Need an Estate Plan.”

As the third anniversary of Prince’s death approaches, his probate estate continues to be administered in Carver County District Court in Minnesota.  Judge Kevin Eide issued orders naming Comerica Bank & Trust as Personal Representative (i.e., administrator) of the Estate and identifying Prince’s six siblings and half-siblings as the heirs.

Litigation involving the Estate spilled over into California in December 2018 when Paisley Park Enterprises, Inc. (Prince’s company) and Comerica as Personal Representative filed a motion to compel compliance with a subpoena by a Redding-area law firm, Sidebar Legal, PC.  See Paisley Park Enterprises, Inc. v. Boxill, U.S. District Court, Eastern District of California, Case No. 2:18-mc-00211-MCE-KJN. …

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…

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 contest clause must be stated in the amendment or the amendment must expressly reference the no contest clause set forth in a prior document.

The takeaway from the case for estate planners is that if your client wants a no contest clause, then you must mention the no contest clause in every trust amendment that you draft for the client.  It is not good enough to simply include a no contest clause in the client’s trust and then refer back to that trust, generally, in later amendments.  Each subsequent amendment must either contain its own no contest clause or must expressly reference the no contest clause of the original trust instrument.…

California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder.  Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, 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 cautious when using petitions to attack the court filings of other parties.  At the same time, the opinion demonstrates that a well-conceived attack on an adversary’s filing ultimately should not fall to an anti-SLAPP motion, even if it takes an appellate court to set things right.

SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.”  To discourage and weed out such suits, the Legislature created a special procedure to challenge them.  Last year we wrote about the use of anti-SLAPP motions as a defensive tool in trust and estate litigation.   We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example.  With Urick, we now have published authority in California for guidance.…