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Trusts Probate Code

Downey Brand LLP

Another Trust Modification Decision Adds to the Logjam

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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...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

ChatGPT Blog Post on Undue Influence Gets a D

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As the New York Times reported in December, “ChatGPT is, quite simply, the best artificial intelligence chatbot ever released to the general public.” Built by OpenAI, a San Francisco-based company, ChatGPT has grabbed...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

Late Trust Contest May Trigger Enforcement of No Contest Clause

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No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest...more

Downey Brand LLP

And the Rocket’s Red Glare – Trustee Removal Petitions May Be Costly to Those Who Launch Them

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Trustee removal petitions, like Centennial Fountains, are one of the more common fireworks in California trust litigation. We’ve explored how such petitions are litigated in prior post and a podcast. In Bruno v. Hopkins...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

Downey Brand LLP

Elder Abuse Restraining Orders May Prevent Estate Planning Changes

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Can a California court stop others from changing an elder’s estate plan?  Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust....more

Downey Brand LLP

Schism Deepens on California Trust Modification

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The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone...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

Winstead PC

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

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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

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

Trust Modification/Amendment Procedure Now Unsettled in California

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The Legislature and courts endeavor to create well-defined laws, lest we devolve into the governance of Emperor Nero, who reputedly posted edicts high atop columns so as to be painfully difficult for the masses to read. As...more

Downey Brand LLP

Will California SB 315 Improve Revocable Transfer on Death Deeds?

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The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding probate and the expense of creating a trust. Revocable Transfer on Death Deeds, or RTODDs, have...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

“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 Can California Trustees Use Trust Funds to Hire Lawyers?

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Many family member trustees are uncertain about whether and to what extent they can use trust assets to obtain legal representation. For example, when two parents choose their daughter, upon their incapacity or death, to...more

Downey Brand LLP

Is “Bad Faith” Needed for Double Damages Under Probate Code Section 859?

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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...more

Downey Brand LLP

Court May Compel Mediation of California Trust Disputes

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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 Breslin v. Breslin (Case No. B301382, decided...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

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

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

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