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Estate Planning › Trustees › Probate Code

Estate Planning is a process where individuals prepare or plan for the settlement of their personal affairs in the event of incapacitation or death. Estate plans typically include provisions relating to the... more +
Estate Planning is a process where individuals prepare or plan for the settlement of their personal affairs in the event of incapacitation or death. Estate plans typically include provisions relating to the disposition of assets, guardianship of minor children, and appointment of representatives to make medical and financial decisions. Effective estate planning can decrease tax liability and facilitate the probate process.  less -
Charles E. Rounds, Jr. - Suffolk University...

Whether an equitable power of appointment incident to a trust relationship is “in gross” or “collateral”: The practical...

Charles E. Rounds, Jr. - Suffolk University... on

Section 17.3, comment f, of the Restatement (Third) of Property (Wills and Other Donative Transfers) explains the difference between a collateral power of appointment and a power of appointment in gross: “In traditional...more

Patton Sullivan Brodehl LLP

California Supreme Court Clarifies Trust Amendment Rules for Conflicts Between Trust Terms and the Probate Code

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The California Supreme Court recently addressed the complexities surrounding trust amendments in the case of Haggerty v. Thornton (2024) 15 Cal.5th 729. The case settled the confusion over potential conflicts between trust...more

Charles E. Rounds, Jr. - Suffolk University...

Incorporating into a trust instrument a nonjudicial mechanism for effectuating on an ongoing basis the wishes of the deceased...

Charles E. Rounds, Jr. - Suffolk University... on

There is much to commend in O’Brien, Proposing a Model Antilapse Clause, 48 ACTEC L. J. 257 (2023), particularly its flagging of the doctrinal and practical flaws in Uniform Probate Code §2-707, which would apply the...more

Downey Brand LLP

How Can We Reduce Conflict Over the Allocation of Mom’s Wedding Ring and Other Tangible Property?

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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,...more

McGuireWoods LLP

Recent Cases of Interest to Fiduciaries: May 2023

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In the most recent installment of the McGuireWoods Fiduciary Advisory Services annual multipart series on recent fiduciary cases, developments in the law concerning various topics are examined through the following... ...more

Downey Brand LLP

Section 850 Petitions Can’t Be Used to Obtain a Fiduciary’s Documents

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What pea is in which pod? California probate disputes often involve questions of property ownership. Petitions filed under Probate Code section 850 allow judges to determine whether and to what extent an estate is the true...more

Downey Brand LLP

Who Protects the Interests of Children in Trust Disputes?

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California trust disputes often involve the interests of parents and their minor children. Sometimes those interests conflict. When disputes are settled, who looks out for the interests of children under 18 years of age? Who...more

Winstead PC

Trustee’s Obligation to Inform Beneficiaries: Avoiding Breach of Fiduciary Duty Claims - Presentation

Winstead PC on

David F. Johnson presented “Trustee’s Obligation to Inform Beneficiaries: Avoiding Breach of Fiduciary Duty Claims” to a national audience on November 16, 2021, via Strafford publishing with his co-presenter Scott E. Rahn,...more

Downey Brand LLP

Steps to Follow with a Difficult Co-Trustee

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We’ve written about how co-trustee conflict fuels California trust litigation and the problem seems to be growing. Trust administration grinds to a halt because a co-trustee (or two or three) is hostile, stubborn,...more

Downey Brand LLP

Immortal Right — Income Beneficiary’s Entitlement to Accounting Continues after Death

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Many California trusts confer a lifetime right to income on a person (often the surviving spouse) with the remainder passing to designated survivors upon the income beneficiary’s death. When the income beneficiary dies, is it...more

Downey Brand LLP

Who Gets the Tahoe House and Other California Real Estate Inheritance Disputes

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Many California trust and estate disputes involve the allocation of real estate amongst several beneficiaries. Mom and Dad, may they rest in peace, owned an upscale home in the Fab 40s neighborhood of East Sacramento, a sweet...more

Downey Brand LLP

Daughter Liable for Interfering with Stepmother’s Inheritance

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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...more

Downey Brand LLP

Showdown at the O.K. Corral – The Battle of the Omitted Heirs

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Providing for your children is one of the primary purposes of estate planning, but what happens to your carefully crafted trust if you had children you did not know about when you created the trust? Or, what if you have...more

Downey Brand LLP

En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation

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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...more

Downey Brand LLP

Guardian of the Galaxy – What is the Role of a Guardian Ad Litem in Trust and Estate Disputes?

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Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets. But many disputes, or at...more

Downey Brand LLP

What California Trust and Estate Litigation Will Arise from the Economic Downturn?

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The COVID-19 pandemic has idled workers and the coming weeks will bring more news of business closures and bankruptcies. After a decade of sustained growth, we are facing a recession of uncertain depth and duration. The New...more

Winstead PC

Administering A Trust In A Recession: Securing Loans For Beneficiaries

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Beneficiaries often request that a trustee secure a loan from a third party. In an economic downturn, such requests are even more prevalent. As a general rule, a trustee should not want to do so as it should assume that the...more

Holland & Hart LLP

When are Termination Fees Reasonable?

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Professional trustees and financial institutions acting as trustees often include a “termination fee” as part of their published fee schedules. Contrary to the name’s suggestion, a trustee might charge the fee not only at...more

Downey Brand LLP

California Trustee Must Be Careful in Seeking Release from Beneficiary

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Can a California trustee require a beneficiary to sign a release in order to get a distribution from a trust? A question like this appeared recently on the AVVO “Free Q&A” page and makes for a perfect blog topic....more

Downey Brand LLP

How Do I Evaluate and Dispute a California Trustee’s Fee?

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This blog post considers a trustee’s fee from the beneficiary’s perspective. Under California law, a trustee generally can set his or her own fee and collect it without prior disclosure to the beneficiaries. What can a...more

Downey Brand LLP

Trustee Fees in California – Tips for Family Member Trustees

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What is a reasonable trustee’s fee in California for a family member who acts as trustee? We see a high degree of conflict over this issue even when the amount of the claimed fee is small compared to value of the trust...more

Downey Brand LLP

Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise

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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...more

Downey Brand LLP

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

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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...more

Downey Brand LLP

Co-Trustee Conflict Fuels California Trust Litigation

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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...more

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