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
When an individual executes a Will near the end of their lives, or at a time that they are suffering from emotional or physical trauma, a question may arise whether the decedent had sufficient capacity to execute their Last...more
Understanding the significance of trustee notice, as mandated by Probate Code Section 16061.7, is crucial in trust administration. This notice is required upon the occurrence of certain events, most notably, when a trust...more
It is a standard requirement in Probate Court disputes that the parties strictly adhere to the rules regarding notice of relief sought to all potential heirs and beneficiaries. The recent decision of Bailey v. Bailey...more
I. SYNOPSIS- Ed was a vibrant and healthy 85-year-old. One day, he decided to sign an advance healthcare directive providing that if his physical condition ever declined, he wished to remain in his home as long as...more
Subject Matter Matters in Land Court - DiNicola v. Ely, et al., No. 23 MISC 000128 (2023), Berkshire County (Land Court May 25, 2023) - Does the Massachusetts Land Court have subject matter jurisdiction over claims...more
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
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
This newsletter is intended to keep readers informed about developments in probate and fiduciary litigation in Massachusetts and New York. ...more
Who’s your father for inheritance purposes in California? Family Code section 7540(a) states that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the...more
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
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
We write today about probate law, premarital agreements and the importance of doing your homework. In Estate of Eskra (2022) ___ Cal.App.5th.____, the First District Court of Appeal upheld a Humboldt County Superior Court...more
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
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
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
When an interested party contests the capacity of the testator, what standard do courts use to determine the validity of a will? The recent case of Neal v. Neal provides insight. In that case, following her diagnosis of...more
Television shows and movies show a Will being read at a funeral, as if the Will is automatically valid and assets can be distributed immediately. Unfortunately, the probate process is more complex and time intensive. This...more
While still grieving the death of your mother, you receive a Notice from the Probate and Family Court informing you that your good-for-nothing brother has filed a Petition for Probate seeking to be appointed as Personal...more
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
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
Section 2030 of California’s Family Code provides an important safeguard to ensure the fairness of marriage dissolution proceedings. It allows the Court to order a more financially well-off party to pay some or all of the...more
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
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
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