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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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