There are a few standard questions I almost always get when people find out that I work in probate litigation. “Do people call you right away when their relatives die?” “Isn’t that tough to deal with, emotionally?” And most frequently, “What can I do to make sure no one challenges my estate plan after I
Earlier this month, a Michigan jury considered whether handwriting in a spiral notebook found under a couch cushion at singer Aretha Franklin’s home constituted her valid last will. Franklin had written and signed the four-page document, and dated it “3/31/14,” but it was not signed by any witness. A six-person jury deemed the 2014 will
Independence Day invites reflection on another form of freedom. How do we respect the autonomy of California’s elders who experience progressive forms of dementia while protecting them from potential abuse and other harm? Elders want to develop new relationships, remain in their homes, and drive their cars. Loved ones may question those choices.
We’ve blogged
Typewritten wills in California generally require the signatures of two witnesses to be found valid, but the harmless error rule can save the day. Probate Code section 6110(c)(2), as recently discussed, provides that a will not properly executed may be admitted to probate if the proponent “establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
We’ve been your dogged reporter on the ever-growing logjam in the Courts of Appeal on trust modification procedure. We’ve followed the twists and turns that courts have taken as they’ve tackled the question of what happens when a trust amendment complies with statutory amendment requirements, but fails to follow the trust’s own specified amendment procedure. We’ve zigged with Pena v. Dey, zagged with Haggerty v. Thornton, and zigged right back again with Balistreri v. Balistreri.
The California Supreme Court is poised to provide a definitive answer. It granted review in Haggerty v. Thornton and the case was fully briefed as of July 20, 2022. Hence, it seemed that the Courts of Appeal might sit on any new cases dealing with the issue and await the Supreme Court’s decision.
Spoiler alert: they didn’t.
We often see siblings litigate in California over the allocation of tangible personal property held in the family trust. When Mom and Dad have passed, the tug of war may involve jewelry, paintings, photos, firearms, furniture, saddles, vehicles, table settings – and yes, even a bobble head!
My colleague Kim McGhee recently hosted a fun
Financial powers of attorney give the named agent broad control over the principal’s assets and thus are a key component of estate planning. Such powers allow the agent to help if and when the principal becomes incapacitated. A corrupt agent, however, may use powers of attorney as a “license to steal.”
Agents who favor themselves may end up in hot water, accused of breach of fiduciary duty. That’s the lesson of Pool-O’Connor v. Guadarrama (2023) ___ Cal.App.5th ___, a case involving an agent who wrongfully used a joint account to handle his uncle’s money.
Exactly where a court’s jurisdiction begins and ends is a question that has long irked our judicial system. One muddle is the extent to which federal courts, as opposed to state courts, can decide disputes involving a decedent’s estate.
The probate exception to federal jurisdiction reserves to state courts the probate or annulment of a will and the administration of a decedent’s estate. The exception also precludes federal courts from disposing of property in a state probate court’s custody. While outwardly straightforward, the exception continues to perplex judges.
The U.S. Ninth Circuit Court of Appeals took up the probate exception in Silk v. Bond, 65 F.4th 445 (9th Cir. 2023), a case involving a wealth advisor who sought to collect his fee. Spoiler alert: the probate exception may be narrower than you think.
Charities sometimes spar over entitlement to bequests and other planned gifts. Occasionally, their disagreements become epic legal battles that span many years.
In Breathe Southern California v. American Lung Association (2023) 88 Cal.App.5th 1172 , two former affiliates fought over the allocation of three bequests. The local organization prevailed, but only after two trips to the California Court of Appeal – that’s a long time to hold your breath.
Dementia casts a long shadow in California trust and estate litigation. Contestants claim that an elder with dementia lacked sufficient mental capacity to make an estate planning change, or that dementia left the elder highly vulnerable to undue influence.
The Alzheimer’s Association, in its annual Alzheimer’s Disease Facts and Figures, provides valuable information for lawyers, both planners and litigators. The Association released its 2023 report on March 15. I’ll share pertinent highlights in this post.