CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Stealing My Gift! My Deceased Parents Gave Me Something Before They Passed That My Siblings Now Say Is Part Of the Estate

Posted in Beneficiary, Probate Court Litigation, Trustees & Beneficiaries, Wills

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

This is Stewart Albertson with Albertson and Davidson, and I want to talk to you about an issue that we do see from time to time called advances on inheritance. Advances on inheritance are essentially a loan that mom or dad makes to one child. They don’t want to be unfair in giving that loan to one of their children when they have several other children. So they basically tell the person they made the loan to, well that is an advance on your inheritance so that when I die, you’re going to have to take that into account based upon whatever your share of my estate is.

There’s a real problem with advances on inheritance though because the probate code has some technical requirements that must be met to qualify as an advance on inheritance. Otherwise, that payment of money from a parent to a child will be looked at as a gift.  If it’s a gift that makes a big difference because when the estate is distributed after mom and dad have passed away it’ll be distributed equally between all of the children without taking into account the “loan” that was made to one of the children during lifetime.

So how can you tell the difference between an advance on inheritance and a gift? The advance on inheritance can be proven in three primary ways. There’s actually a fourth way, but that gets a little complicated. If you really want to look into this, you can go to Probate Code section 21135, and you can read how you establish an advance on inheritance there.

Generally, the way you prove an advance on inheritance is:

  1. The trust or will terms themselves have in there saying, I’m giving $100,000 loan to my son Johnny, and when I die, this counts as part of his inheritance at the time he receives his ultimate distribution. That’s the first way that an advance on inheritance can be included and be supported by the evidence.
  2. The next way you can establish an advance on inheritance is did your mom or dad have a writing outside the trust or will that simply says: I hereby am making a loan to Johnny and after I die, that should be considered as part of his inheritance for distribution purposes. That would be the second way that you can establish an advance on inheritance.
  3. The third way is you have Johnny acknowledged in a writing that he’s already receiving some of his inheritance by way of a loan prior to mom and dad passing.

If you have any of those three, chances are you can establish an advance on inheritance.

As you can see, this is not always easy to do. If there is money that is given to one child, a lot of money, say several hundreds of thousands of dollars to one child and not to the other, and there’s nothing to establish an advance on inheritance, what is the argument the child makes who received the money during the parents’ lifetime? And that is, it was a gift. If it’s a gift, it won’t be chargeable against their share of the estate. It won’t be an advance on inheritance.

 

Where’s the Will?? How Can I See The Will Of A Deceased Loved One?

Posted in Trust & Will Contests, Trusts, Uncategorized, Will Creation, Wills

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

This is Keith A. Davidson from Albertson and Davidson. In this video, I want to talk to you about the differences between Wills and Trusts. A lot of times people think that Wills and Trusts are the same thing, that they’re the same type of documents, and they really aren’t. Wills and Trusts are very different, and so let’s start with a discussion of Wills, and then we’ll talk about Trusts and you can see the differences between the two documents.

Wills are testamentary documents, and what that means is they only come into effect, they only actually are created, upon somebody’s death. Now you go ahead and create the Will and write it down and sign it prior to death, but it doesn’t operate until after death. For Wills, there’s a lot of what we call formalities that you have to follow.

To have a valid Will, you have to have it in writing. It has to be signed by the person who’s creating the Will, and a typewritten Will has to be witnessed by two witnesses, or it has to be in the testator’s own handwriting. That’s what we call a holographic Will. If you don’t meet those formalities when you create a Will, then the Will simply isn’t going to be valid. That’s something that is unique to Will’s. You’re not going to have that with Trust.

After somebody passes away, a Will cannot operate over their assets until you take that Will to court and you have the court admit the Will to probate. That’s where the court decides whether the Will is valid or not, and until the Will is admitted to probate, nothing can happen with that Will. You can’t administer it. You can’t manage the decedents assets. It has to go through this court process in order to operate and then the Will ultimately will dictate how the assets pass out of probate and to the beneficiaries who are intended to receive them. And that’s generally how a Will works.

A Trust is very different because most people create what we call a living Trust. In legal terms, we would call that an inter-vivos Trust, meaning that it’s created during your lifetime and it actually operates during your lifetime. So the Trustee of your living Trust can manage your assets, can make management decisions over those assets, and it operates even if you lose capacity. That’s different from a Will because the Will never helps you if you lose capacity, but a Trust does. And then after you passed the Trustee can administer that Trust without having to go to court.

Trust don’t require any court oversight in order to be administered. And in order to create a Trust, all you have to do is have something in writing and signed. You don’t technically even need to have it notarized, although most Trusts are notarized and they probably should be, but that’s not a legal requirement that they be notarized.

Trusts tend to be a lot more flexible because you can leave your assets to your children or your beneficiaries, and you can have all sorts of flexibility in how you leave your assets to them. So, you can leave something in a child’s Trust that holds their assets until a certain age, or you can leave something to your grandchild and also hold that until they reach a certain age. There’s all sorts of flexibility that you can build into your Trust that is much harder to do under a Will because the Will has to go to court and through the probate process in order to be administered.

So that is some differences between a Will and a Trust, and I think you’ll see that they’re very different documents.

Will you lose your inheritance??? The Beneficiary’s Corner — Course 5 California No Contest Claims

Posted in Beneficiary's Corner, Litigation, Trust & Will Contests

If you find your inheritance being reduced or eliminated and you want to take action to protect yourself in court, you may want to first consider California No Contest clauses.  California Trusts and Wills often contain a no contest clause that states you will be disinherited if you challenge the terms of the Trust or Will.  And while California no contest clauses have been severely limited in recent years under California law, they still can apply to certain actions you take to challenge a Trust or Will.

In this course, we discuss the application of California no contest clauses in more detail and offer our views on how best to deal with this difficult issue.  If you would prefer to read about this topic, you can find our written blog post here.

The Facts

In this video we cover the basic ground rules for California no contest clauses and provide the factual scenario we will use for the next two video lessons.

The Law

Partner Stewart Albertson provides his professional opinion on how to deal with California no contest clauses found in California Trusts and Wills.

The Talk

Partners Stewart Albertson and Keith A. Davidson discuss their views of how to deal with California no contest clauses.

The Beneficiary’s Corner — Course 4 California Attorney Malpractice Claims

Posted in Beneficiary's Corner, Videos

If you are the victim of a poorly drafted Trust or Will that prevents you from inheriting the property your parents wanted you to have, you may have an attorney malpractice claim on your hands.  In this course, we discuss the rights and options you have to recoup the harms and losses you suffer from attorney malpractice.

The Facts

In this video we cover the basic rules for attorney malpractice claims and present the factual scenario we will use in the next two videos.

The Law

Partner Stewart Albertson discusses his professional opinion of how the law of attorney malpractice applies to the facts presented in Lesson 1.

The Talk

Partners Keith A. Davidson and Stewart Albertson discuss their views of how attorney malpractice is used to recoup harms and losses suffered by attorney malpractice.

 

The Beneficiary’s Corner — Course 3 California Undue Influence Claims

Posted in Beneficiary's Corner, Videos

If you are contesting a Trust or Will, or filing a California financial elder abuse action, you have to know about undue influence.  In a majority of cases, undue influence is alleged as the basis to overturn a California Trust or Will.  And the same concept can be the basis to file and win a California financial elder abuse claim.

In course 3, we cover the facts, the law, and the talk for California undue influence claims.

The Facts

In this video we cover the basic rules for undue influence claims; and then present the factual scenario we will use in the next two videos.

The Law

Partner Keith A. Davidson discusses his professional opinion of how the law of undue influence applies to the facts presented in Lesson 1.

The Talk

Partners Stewart Albertson and Keith A. Davidson discuss their views of how undue influence is used and applied in Trust and Will lawsuits.

The Beneficiary’s Corner — Course 2 The Top 3 Trustee Duties

Posted in Beneficiary's Corner, Videos

California Trustees have a lot of duties and responsibilities, but none are more important than the top three Trustee duties discussed in course 2 of our video series.  You can find an in-depth written discussion of this topic here.

The Facts.

In this video we discuss a basic factual scenario that we will use in the next two videos.

The Law.

In this video, partner Stewart Albertson gives his professional opinion on Trustee duties.

The Talk.

In this video, partners Stewart Albertson and Keith A. Davidson give their views on Trustee duties.

The Beneficiary’s Corner — A new course for abused California beneficaries

Posted in Beneficiary's Corner, Videos

It’s time for something new.  We developed a new course called The Beneficiary’s Corner.  This course will allow us to delve more deeply into a California Trust or Will topic.  The first lesson of each course is The Facts, where we set out a hypothetical scenario drawn from our experience in actual cases.  We then provide you with our professional opinion in The Law section.  And finally, we have our partners conduct a roundhouse discussion of the topic in The Talk.

Below are the videos from our first course focusing on Trustee investing.  Each month we plan to release a new course in the same format.  You can find all of our courses here.   You can also find an in-depth written text for this course here.

Selecting your Trust or Will litigation lawyer

Posted in Litigation, Videos

Finding the right key for your case

How do you select a lawyer to represent you in a Trust or Will litigation matter? It can be a frustrating process.

What we suggest to people is to be comfortable with the person you are meeting with before hiring a lawyer. Lawyers have a fairly bad reputation, but that reputation does not apply to all lawyers. You need to meet with several lawyers and make sure you are comfortable with the lawyer you select.

A few questions we recommend asking include: does the lawyer sound like they know what they are talking about? Do they have an interest in your case? If they are interested in your case, what are they interested in? Is it an interesting fact situation, legal situation, or something they feel compelled to address?

After asking a few questions, sit and see what your comfort level is with the person. If you are comfortable with the person and they sound like they know what they are talking about—and are interested in the case—then you probably found the right lawyer for you.

The most important thing is the relationship between the attorney and the client. There will always be ups and downs in every litigation case ad you need to be able to work together and trust each other in good times and in bad. If you feel comfortable in all this, then generally you have found the right attorney for you.

How to fight against the Big Dogs: Fighting big law firms in Trust and Will litigation lawsuits

Posted in Litigation, Videos

Ya Wanna Fight???

Occasionally we are asked about fighting against a big firm. Maybe your Trustee decides to hire a big firm in Los Angeles, New York, Chicago, Boston, or some other big city. How are you going to fight your Trustee when he or she is represented by a big law firm? That’s a fair question.

Many people think that large law firms have unlimited resources and can crush a small firm in litigation. But in Trust and Will litigation that tends to be false. First, large law firms tend to be far more expensive—meaning their client will feel the financial pressure of litigation before you do.

Second, large firms have a hard time doing anything “outside of the box” because of the many partners to which each lawyer must answer. That means if anyone does anything novel they may be questioned or challenged for it later by the higher-ups. As a result, most big firms engage in a traditional style of litigation, which is fairly predictable.

Third, the California Code of Civil Procedure applies to everyone in California—big firms and small firms alike. Yes, it takes work to enforce the rules, but after having done it many times against big firms, we can easily attest that the rules are applied against big firms just as well as small firms.

A specialist, boutique firm is smaller, more nimble, and can react appropriately and more strategically than most large law firms in Trust and Will litigation. As a result, a specialty firm can develop and employ a unique strategy that better fits your case.

Would you pay money to take on a thankless job? Fighting to be Trustee of a California Trust

Posted in Planning, Trustees & Beneficiaries, Videos

Would you

There are times when a Trust settlor names a successor Trustee who is not a beneficiary of the Trust. This is often a great idea because naming a child as Trustee can be disastrous. And naming two or more children as Co-Trustees is a fantastic idea if you want to keep lawyers fully employed (and who doesn’t want that???).

The problem, however, is when the non-beneficiary Trustee is challenged by a Trust beneficiary. For instance, if a warring beneficiary is determined to exert control over the Trust, he or she may challenge the appointment of the successor Trustee when the time comes for that Trustee to act. What incentive does a third-party have to fight to be Trustee when there’s nothing in it for them?

Fighting to block a named successor Trustee from acting is not an easy thing to do depending on the Trust terms. Most Trust terms do not allow a beneficiary to remove and appoint a new Trustee. That means a Trustee has a right to act provided there are no “skeletons” in the Trustee’s closet. What type of skeletons would block the appointment of a Trustee?

Probate Code section 15642 provides the grounds for Trustee removal, which can be used at times to block a named successor Trustee from acting in the first instance. The grounds include things like insolvency of the Trustee, unfit to act (whatever “unfit” means), where the Trustee committed a breach of trust, where the person cannot resist fraud or undue influence, and the like.

The problem arises where a named successor Trustee has not yet taken control of the Trust assets, but is challenged by a beneficiary from acting. The named successor may not be able to access and use Trust funds to fight the beneficiary over appointment as Trustee. And a non-beneficiary Trustee has no financial stake in the outcome of his or her appointment. In other words, the named Trustee is put in the unusual position of paying out of her own pocket for the right to take on a thankless job with an unruly beneficiary to deal with.

So why would anyone take on such a fight? It comes down to principal. Sometimes standing up for what the Settlor wanted is more important than the personal sacrifices incurred in such a fight.

The better approach for all concerned is to have an easy way out—a safety valve that will allow someone to step in and cure the problem without excessive fighting. And that brings us to the unique, and rarely used, idea of a “special” Trustee or a Trust protector. For our discussion here, both terms can do the same function; namely exercise the power to remove and appoint Trustees.

If a beneficiary insists on fighting against a named successor, then give the power to remove and appoint to a neutral third-party (called a Trust protector or special Trustee) who can choose an alternate Trustee. This approach satisfies the beneficiary by preventing the named Trustee from acting, but it also prevents the beneficiary from effectively controlling the Trust by appointing a pliable lackey as Trustee. Instead, the Trust protector can independently choose a competent person to act as Trustee who is NOT beholden to the beneficiary for his or her job.

Just another example of how well laid plans can help avoid disaster.

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