Category: Trust Administration

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California Courts Can Excuse Trustee Who Acts in Good Faith

A California trustee can be excused from liability for breaches of trust if a judge determines that it would be equitable to do so. We see many situations where a family member trustee strays from the requirements of the trust instrument. Still, if the trustee does not favor himself or herself, and the beneficiary is … Continue Reading

California Courts May Scrutinize Conservator Fees

Private professional fiduciaries in California are entitled to charge a reasonable fee for their services, but their fees for acting as conservators are subject to close court scrutiny. A recent California Court of Appeal case, In re Conservatorship of Presha (2018) 26 Cal.App.5th 487, shows how closely probate judges and their staffs may examine the … Continue Reading

Fore! California Court Drives Away Claim that Trustee’s Attorney Breached Trust

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) ___ Cal.App.5th ___, … Continue Reading

Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise

The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel.  We blogged last year about an appellate opinion that reinforced this concept. Last month, in Morgan v. Superior Court (2018) 23 Cal.App.5th … Continue Reading

Stepmother vs. Stepchild, Now Playing in a California Probate Court Near You

Stepmothers are frequent characters in California trust and estate litigation, as they are in fairy tales and Disney movies.  With about half of all marriages ending in divorce, there are many stepmother/stepchild relationships.  Mostly they work out fine, but some go south. After blogging on sibling conflicts as a driver of trust and estate disputes, … Continue Reading

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

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

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!

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

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 Professional Fiduciaries Help Elders and Resolve Conflicts

California trust and estate disputes may be avoided or resolved with the appointment of a private professional fiduciary to act in an oversight role with respect to an elder’s care and/or finances.  In a recent post, we suggested the use of professional fiduciaries or bank trust departments to resolve conflicts among family member co-trustees. Here … Continue Reading

Co-Trustee Conflict Fuels California Trust Litigation

California trust litigation often stems from disagreements and hostility among family member co-trustees.  Rather than picking one of their kids to serve as sole successor trustee when they die or become incapacitated, Mom and Dad often appoint two or more of their children to act together as successor co-trustees. Having more than one child serve … Continue Reading

Constructive Trusts Can Catch Wayward Trust Assets

Trustees in California trust disputes should not overlook the power of the constructive trust remedy as a way to recover errant trust assets.  That’s a takeaway from Higgins v. Higgins (2017) 11 Cal.App.5th 648, an opinion in a trust litigation case published last week by the California Court of Appeal. A Los Angeles Superior Court trial … Continue Reading

California Courts Must Examine Outgoing Trustee’s Assertion of Attorney-Client Privilege

One challenge that California trustees face is the prospect that confidential attorney-client communications will pass to successor trustees if they resign or are removed from office.  The attorney-client privilege belongs to the client, but the client is the office of the trustee, not the incumbent who holds that office.  Hence, the successor trustee generally gets … Continue Reading

California Supreme Court Clarifies Creditor Access to Spendthrift Trusts

On March 23, 2017, at the request of a certified question from the U.S. Ninth Circuit Court of Appeals, the California Supreme Court answered the age-old question – “what gives”? That is to say, what gives – the impenetrable wall of a spendthrift trust or the ability of a bankruptcy trustee to tap trust funds … Continue Reading

Just the FAQs: California Trust and Estate Litigation’s Greatest Hits, Part 1

In our Sacramento trust and estate litigation practice there are several questions that come up over and over again.  In many instances, these questions are the building blocks of our practice that lead to more complicated questions that sometimes require the filing of a lawsuit to answer.  As a starting place, below are some of … Continue Reading

California Trust Litigation 20,000 Leagues Under the Sea

Beneficiaries beware: don’t dive in to trust litigation too quickly.  That lesson was learned the hard way, ironically, by a diving heiress in Williamson v. Brooks (2017) 7 Cal.App.5th 1294.  The California Court of Appeal decision, which related to a trust created by the founder of Kirby Morgan Dive Systems, Inc., addresses the question of … Continue Reading

California Wage and Hour Lawsuits Spreading to Mom’s Living Room

In a recent post, we discussed the hazards, from a tax reporting perspective, of erroneously treating California caregivers as independent contractors as opposed to employees.  If a caregiver is an employee (as is often the case), her employer also must comply with the various wage and hour rules that apply to the employment relationship. Many … Continue Reading

Watch Out for Tax Issues When Paying California Caregivers

Hired caregivers (also known as home care aides) permit many California seniors to remain in their homes as they age and need assistance with activities of daily living.  Yet from my window looking out at Sacramento, I can see massive liability associated with the classification and payment of such workers.  Consider that baby boomers are … Continue Reading

Sacramento Appellate Court Rejects Personal Liability for Legal Fees in Trust Disputes

Since California trustees generally can use trust funds to pay lawyers to handle disputes, litigation can drain away the funds available for distribution to beneficiaries.  Hence, an overaggressive beneficiary can pursue litigation that penalizes all beneficiaries, even those who have no responsibility for the fight. Last week the California Third District Court of Appeal, based … Continue Reading

A Friend Request From The Beyond: California’s New Post-Death Digital Assets Law

Next time you schedule an appointment with Downey Brand’s Sacramento office to revise your estate plan you will have a new question to consider: who will manage your Facebook account when you’re gone? Assembly Bill No. 691, which became effective on January 1, 2017, attempts to aid in that process.  It is commonly called the … Continue Reading

Notice of Proposed Action May Quiet Back Seat Driving Beneficiaries

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

Sacramento Court Limits Reach of Anti-SLAPP Law in Trust Disputes

A few months ago, I wrote about the anti-SLAPP statute as a powerful defensive tool in California trust and estate litigation. Adding new light to the subject is a Sacramento-based appellate court’s decision in Greco v. Greco (2016) 2 Cal.App.5th 810. The case narrows the ability of fiduciaries to bring motions to dismiss under the … Continue Reading

Red Alert: California Trust and Estate Litigation on an Ex Parte Basis

It’s early in the morning, you’ve only just started your first cup of coffee, and your first few sips of java have not yet percolated your brain into full gear. Suddenly, your cellphone vibrates, a call is coming. You do not recognize the number, but you answer anyway. Hello? You have just been provided notice … Continue Reading

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

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
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