News & Analysis as of

Wills Trusts Probate Code

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

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

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

Faegre Drinker Biddle & Reath LLP

Indiana Court of Appeals Invalidates Trust for Failure to Identify Trust Beneficiary

Recently, the Indiana Court of Appeals decided the case of Wilson v. Wilson. The case involved the last will and testament (“Will”) of decedent Terrel Wilson, Sr. (“Terrel Sr.”), which purported to create a trust....more

Downey Brand LLP

Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?

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California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of...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

“Mental Health Disorder” Must Be Proven Along with Delusion

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When are delusions enough to invalidate an estate plan? The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) ___ Cal.App.5th ___. The case involves a 90-year-old woman who favored...more

Downey Brand LLP

When Do California Trust and Estate Cases Have Preference in Trial Setting or Appeal?

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Getting a civil or probate case to trial in California can take a long time. The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed. While most California trust and...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

Clear and Convincing Evidence Standard Continues to Apply in California Appeals

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Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard. In...more

Downey Brand LLP

California Powers of Appointment: Follow Instructions When Exercising

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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...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

Downey Brand LLP

Mind Your Notice in California – Even Remote Contingent Beneficiaries May Need to Be Served

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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,...more

Downey Brand LLP

California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

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Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A...more

Cranfill Sumner LLP

Understanding Trusts: Do you need one? What are the? How do they work?

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One of the most common questions clients ask is whether they need a trust. While they are usually seeking a “yes” or “no” answer, as with most legal questions, the correct answer usually is, “It depends.” The answer depends...more

Downey Brand LLP

California Probate Administration Is No Time for Napping

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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....more

Downey Brand LLP

When Defending Becomes Offensive: California Court Expands No Contest Clauses to Defense of Invalid Amendment

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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...more

Downey Brand LLP

A Neuropsychologist’s Take on Mental Capacity Evaluation

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Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity,”...more

Downey Brand LLP

Mental Capacity Standards in California Civil Litigation

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What mental capacity standards apply in California civil litigation? Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville. I’ll offer highlights here. Short...more

Katten Muchin Rosenman LLP

2017 Year-End Estate Planning Advisory

The fourth quarter of 2017 concludes a unique year in the planning arena. With the new administration and a Republican-led Congress in power, both taxpayers and tax professionals have kept a close eye on the potential for tax...more

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