A common misperception of trusts is that they are legal entities that, like corporations, can hold title to real estate and other property. A new California appellate decision, Boshernitsan v. Bach (2021) 61 Cal.App.5th 883, addresses that misunderstanding.… Continue Reading
A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under specified circumstances. In Keading v. Keading (2021) 60 Cal.App.5th 1115, the Court of Appeal ruled that a trial court … Continue Reading
(Editor’s Note: This post has been updated following the Court of Appeal’s opinion after rehearing on April 5, 2021, and the Supreme Court’s subsequent denial of review or depublication.) Trust and estate litigators, and mediators, are buzzing over a recent decision from the California Court of Appeal that validates mandatory mediation of trust disputes. In … Continue Reading
One of the first steps before filing a lawsuit is to decide which court has jurisdiction over it and where it is properly venued. It’s a significant choice – not only for strategic reasons, but also because a poor selection may prove fatal to the lawsuit. Such a hefty decision is not always an easy … Continue Reading
What court should hear a dispute over a California trust? I briefed this question last month when a judge questioned if a case should instead be adjudicated in neighboring states. Such jurisdiction issues come up occasionally given the mobility of family members with interests in trusts. A recent appellate case, Van Buskirk v. Van Buskirk … Continue Reading
Intentional interference with expected inheritance (IIEI) was recognized as a legal claim in California about eight years ago in Beckwith v. Dahl (2012) 205 Cal.App.4th 1039. Last week, the Court of Appeal issued the first published opinion in California that affirms a judgment in favor of a plaintiff on an IIEI claim, thus providing guidance … Continue Reading
Can a temporary conservator of a person effectively sign paperwork that admits the conservatee to a California senior living facility subject to an arbitration agreement? Only if the temporary conservator has special authorization to do so. Holley v. Silverado Senior Living Management, Inc. (2020) ___ Cal.App.5th ___, decided in August, is a cautionary tale for … Continue Reading
For more than a decade, some of Britney Spears’s most devoted fans feared that she was locked up against her will under a court-ordered conservatorship, even going as far to accuse her father, Jamie Spears, of drugging her to take control. In response, fans launched #FreeBritney, a viral social media campaign, aimed at having Britney’s … Continue Reading
Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die. It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes … Continue Reading
In California, a trustor (person who creates a trust) can confer a “power of appointment” on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust. The trustor can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to … Continue Reading
A new case from the Court of Appeal once again illustrates the robust nature of claims under California’s Elder Abuse and Dependent Adult Civil Protection Act, also known as the Elder Abuse Act. In Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, a San Bernardino County jury found the owner of a residential care … Continue Reading
While California trustees hope for smooth sailing, they must navigate waters that can be choppy depending on the assets, trust instruments and personalities involved. As fiduciaries, trustees must honor the trustors’ intent as expressed in the trust instruments. Sometimes the language is unclear and the trustee needs instruction from a court as to how to … Continue Reading
In California, the Attorney General oversees charitable trusts. This responsibility includes bringing legal actions against trustees who breach their fiduciary duties. Government Code section 12598 provides that the Attorney General is entitled to recover from a defendant all reasonable attorney’s fees and actual costs incurred in an action to enforce a charitable trust. But what … Continue Reading
It’s unremarkable that California courts require that notice be given to affected beneficiaries in trust and probate proceedings. After all, the Fourteenth Amendment guarantees that no person will be deprived of life, liberty, or property without due process. While contingent beneficiaries may not have received an inheritance yet, they may someday and so should know … Continue Reading
Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) 8 Cal.5th 822, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200. The Court of Appeal had narrowly construed section 17200 … Continue Reading
Often an aging parent will add an adult child to the parent’s account as a joint holder to assist with asset management or bill payment. However, this may lead to an unintended result in California when the parent dies. The child, as surviving account holder, may get all of the account proceeds even if the … Continue Reading
(Editor’s Note: The Court of Appeal granted rehearing on December 2, 2019 and later depublished the portion of its opinion discussed below such that it is no longer citable authority in California courts.) It is widely understood in California that inherited assets, unlike assets earned from labor, are the separate property of the receiving spouse. … Continue Reading
California’s probate process aims to expeditiously identify and resolve the claims of creditors against decedents. Creditors who are unsophisticated, or who simply do not learn of the decedent’s passing, may find themselves with an uncollectable claim against an otherwise solvent estate. You snooze, you lose. On the other hand, once a creditor makes a claim … Continue Reading
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) … Continue Reading
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 invalid … Continue Reading
When a man dies in California, who gets the proceeds of his life insurance policy? The answer seems obvious: the named beneficiaries in the paperwork received and accepted by the life insurance company. But what if the man gave the policy away during his lifetime? Can he cancel the gift and redirect the proceeds to … Continue Reading
What do you do if someone steals money or property from a trust or estate? California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back. To discourage such theft, Probate Code section 859 provides that the wrongdoer “shall be liable for twice … Continue Reading
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 … Continue Reading
What happens when the settlor (i.e., creator) of a trust imposes a condition precedent on receipt of a distribution from the trust, but the condition cannot be met because the circumstances have changed? Is the beneficiary out of luck for reasons beyond his or her control? The First District Court of Appeal took up this … Continue Reading
