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 We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example.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.
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.”
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.
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 & Probate Law, a dual certification held by relatively few California attorneys.
Tell me about your personal and professional background.
Family is important to me. I grew up on a ranch in the Livermore Valley in Alameda County with five brothers and three sisters. I feel truly blessed to have grown up in a large family. We remain close and enjoy spending major holidays and other gatherings throughout the year together. Each of my siblings has an advanced degree, which is a testament to my parents. Our family get-togethers are never quiet or boring.
I founded the Goralka Law Firm in 1996. The firm helps successful families, business owners and real estate owners achieve their enlightened dreams by minimizing taxes, better protecting assets, resolving transitions, and even cleaning up messes from time to time.
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 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.
(Editor’s Note: The post below was published on November 21, 2016. California law as to undue influence presumptions between spouses changed on January 1, 2020, due to Assembly Bill 327, discussed in a subsequent post.)
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 a current spouse over other potential beneficiaries is a common and natural choice in estate planning.
Yet a California Court of Appeal based in San Jose took the opposite position in Lintz v. Lintz (2014) 222 Cal.App.4th 1346. The Lintz case casts a shadow over millions of “honey I love you” wills and trusts in the Golden State. Until the California Legislature or Supreme Court resolves this question, step-children will invoke Lintz in an effort to gain the upper hand over step-parents. This post will discuss the inconsistency that Lintz recently has created in California law.
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 the family member or interloper who has stolen money from a vulnerable elder, criminal prosecution is relatively unusual. Our criminal laws, including California Penal Code section 368(d), prohibit defrauding an elder but our prosecutors seldom prosecute those who could go to prison.
In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the invalidation of John Patton’s will and trust, which purportedly left Patton’s $5 million estate to LeBouef. The ruling illustrates the Probate Code’s prohibition of donative transfers to categories of persons who, because of their relationship with the creator of a trust, might exercise undue influence. The law, in particular, presumes that an attorney who drafts a trust in which the attorney is named as a beneficiary does so without the client’s knowledge and consent. The opinion also shows how contestants can use evidence of other “bad acts” to bolster their cases if those other acts show a common plan or scheme.