Recent Posts in Trusts Category
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Posted on May 20, 2013 By Law Offices of David A. Shapiro
On part III of our blog regarding the estate of Stoker, we will discuss additional claims made by appellants, Destiny Gularte (petitioner, appellant and the decedent's ex-girlfriend) et al, the ...
Continue reading "Part III - Testator's Intent Overrides Procedural Errors in a Will" »
Posted on May 16, 2013 By Law Offices of David A. Shapiro
To continue our blog on the Estate of Stoker, Destiny Gularte (petitioner, appellant and the decedent's ex-girlfriend) appealed the trial court's decision revoking the 1997 trust and accepting ...
Continue reading "Part II - Testator's Intent Overrides Procedural Errors in a Will" »
Posted on May 15, 2013 By Law Offices of David A. Shapiro
A will may still be deemed valid even if it was not executed in accordance with Probate Code requirements as long as there is clear and convincing evidence that the testator who signed it intended it ...
Continue reading "Testator's Intent Overrides Procedural Errors in a Will" »
Posted on Mar 28, 2013 By Law Offices of David A. Shapiro
To continue where we left off in our previous blog, Portico appealed the trial court's ruling. Portico contends that under well-established law it is proper to enter judgment against a trust. ...
Continue reading "Part II - A Trust is Not an Entity and Judgment Against it is Unenforceable" »
Posted on Mar 27, 2013 By Law Offices of David A. Shapiro
The Third District Court of Appeal ruled that a trust is not an entity and cannot hold title to property; thus, it cannot sue or be sued. Any judgment brought against a trust is unenforceable. This ...
Continue reading "A Trust is Not an Entity and Judgment Against it is Unenforceable" »
Posted on Mar 25, 2013 By Law Offices of David A. Shapiro
Under Probate Code section 21350, there is a rebuttable presumption that testamentary transfers to care custodians/caregivers are the product of fraud, duress, menace or undue influence. However, ...
Continue reading "Relationship via Marriage Exempts Prohibitions against Gifts to Caregivers" »
Posted on Mar 1, 2013 By Law Offices of David A. Shapiro
Kenneth appealed the trial court's decision stating that Margaret Cairns' intent was to prevent Grant from waiting until "after the close of a year to 'catch up.'" ...
Continue reading "Part III: Five by Five Clause" »
Posted on Feb 25, 2013 By Law Offices of David A. Shapiro
To continue our previous blog on the Estate of Cairns, Grant served as sole trustee of the Trust until 2005, after which, the court appointed Glenn Cook to serve as co-trustee. Each year that Grant ...
Continue reading "Part II: Five by Five Clause" »
Posted on Feb 19, 2013 By Law Offices of David A. Shapiro
A 5 by 5 clause provides an income beneficiary the power to withdraw from the trust the greater of: 1) $5,000 or 2) 5% of the residual trust' s fair market value each year. This is a common clause ...
Continue reading "Five by Five Clause" »
Posted on Feb 5, 2013 By Law Offices of David A. Shapiro
In the estate of Oligario Lira, the petitioner, Mary Ratcliff, appealed the trail court's decision claiming that the trial court made a mistake in finding that Probate Code section 21351 ...
Continue reading "Transferor & Transferee Doesn't Have to be Related at Time of Death for Transfers to be Valid - Part II" »
Posted on Feb 4, 2013 By Law Offices of David A. Shapiro
Once again, questions about Probate Code section 21350 and 21351 came into play as a petitioner and appellant challenged a decedent's will and trust due to the fact that the beneficiaries were no ...
Continue reading "Transferor and Transferee Doesn't Have to be Related at Time of Death for Transfers to be Valid" »
Posted on Jan 30, 2013 By Law Offices of David A. Shapiro
To continue the discussion on Donkin v. Donkin, the trustees appealed the trial court's decision. The Court of Appeal reviewed the case and stated that one of the issues that must be addressed was ...
Continue reading "Part III: Challenges to Trust That Affects Distributive Scheme May Violate a Trust's No Contest Clause - Part III" »
Posted on Jan 28, 2013 By Law Offices of David A. Shapiro
In Donkin v. Donkin, spouses Mary and Rodney Donkin (settlors), created a revocable trust on August 15, 1988. The primary beneficiaries of the trust were the settlors' children Rodney Donkin Jr., ...
Continue reading "Part II: Challenges to Trust That Affects Distributive Scheme May Violate a Trust's No Contest Clause" »
Posted on Jan 25, 2013 By Law Offices of David A. Shapiro
A no contest clause "essentially acts as a disinheritance mechanism, wherein a beneficiary may be disinherited if he or she contests or seeks to impair or invalidate the trust instrument or its ...
Continue reading "Challenges to Trust That Affects Distributive Scheme May Violate a Trust's No Contest Clause" »
Posted on Jan 23, 2013 By Law Offices of David A. Shapiro
As discussed in yesterday's blog regarding Sefton v. Sefton, Thomas Jr. appealed the judgment made by the Superior Court. The Court of Appeal was asked to interpret provisions of the California ...
Continue reading "Part II: The Law in Effect at Time of Will Execution and During Executor's Death Governs the Terms of a Will" »
Posted on Jan 22, 2013 By Law Offices of David A. Shapiro
There are many instances when the law changes from the time a will is executed up to the time it is exercised. The question then becomes, which law must govern? The law existing at the time the will ...
Continue reading "The Law in Effect at Time of Will Execution and During Executor's Death Governs the Terms of A Will" »
Posted on Jan 17, 2013 By Law Offices of David A. Shapiro
To continue from our previous blogs, Timothy Giraldin (defendant and appellant) appealed the trial court's decision which was ruled in favor of the plaintiffs. The Court of Appeal found that the ...
Continue reading "Part III: Remainder Beneficiaries May Have Standing to Sue Trustee for Breach of Trust Occurring During Settlor's Lifetime" »
Posted on Jan 16, 2013 By Law Offices of David A. Shapiro
Continuing our previous post regarding the Estate of Giraldin (2011) 199 Cal.App.4 th 577, 131 Cal.Rptr.3d 799, William Giraldin, a successful businessman and investor, created a revocable trust and ...
Continue reading "Part II: Remainder Beneficiaries May Have Standing to Sue Trustee for Breach of Trust Occurring During Settlor's Lifetime" »
Posted on Jan 15, 2013 By Law Offices of David A. Shapiro
The Supreme Court has opined that a beneficiary has standing to sue a trustee for breach of trust to a settlor even when the breach occurred during the settlor's lifetime. Generally, in a ...
Continue reading "Remainder Beneficiaries May Have Standing to Sue Trustee for Breach of Trust Occurring During Settlor's Lifetime" »
Posted on Dec 28, 2012 By Law Offices of David A. Shapiro
Probate Code section 15680 subd. (a) provides that "if the trust instrument provides for the trustee's compensation, the trustee is entitled to be compensated in accordance with the trust ...
Continue reading "Trustee Compensation" »
Posted on Dec 6, 2012 By Law Offices of David A. Shapiro
To continue from our previous post regarding Bellows v. Bellows (2011) 196 Cal.App.4 th 505, the Court of Appeal reversed the trial court's ruling citing Probate Code section 16004.5(a), which ...
Continue reading "Part II: Asset Distribution Conditioned Upon Release of Trustee Liability" »
Posted on Dec 5, 2012 By Law Offices of David A. Shapiro
Probate code section 16004.5(a) cites that the trustee could not condition the distribution of trust assets on a release of liability. Where a beneficiary is unquestionably entitled to a distribution, ...
Continue reading "Asset Distribution Conditioned Upon Release of Trustee Liability" »
Posted on Nov 19, 2012 By Law Offices of David A. Shapiro
Probate Code section 16350 states that a trustee shall allocate to principal, money received in total or partial liquidation of the entity. Money is received in partial liquidation (A) to the extent ...
Continue reading "Dividend Payment Stemming From Sale of Real Property Constitute As Principal Receipt" »
Posted on Nov 15, 2012 By Law Offices of David A. Shapiro
An interested person's standing to bring an elder-abuse claim is deliberated in Lickter v. Lickter (2010) 189 Cal.App.4 th 712. The case concerned two grandsons (Joshua and Jezra) who sued their ...
Continue reading "Part III: Parties with No Financial Interest Lack Standing to Pursue Elder Abuse Action" »
Posted on Nov 6, 2012 By Law Offices of David A. Shapiro
In the Court of Appeals deliberation, they concluded that the settlors bound themselves to a specific method of modification, accordingly, as specified under section 15402, the trust can only be ...
Continue reading "Trust Modifications and Revocations - Part IV" »
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