Blog Posts By Category

Although the Health Insurance Portability and Accountability Act, aka HIPAA, is meant to protect your medical privacy, sometimes the rule may cause unwanted situations in regards to the release of ...

Something you may want to consider as part of your estate litigation is what to do with your body or parts of your body after you die. Many people consider organ donation as a way to give life to ...

The costs of not having a Durable General Power of Attorney or Power of Attorney for Health Care included in your estate litigation are immense. Without these documents in place your family will need ...

When writing your will, a good idea is to figure out where you’d like the gift to go if the person you designated as the beneficiary happens to die before you do. If this happens that gift is deemed ...

When putting together your estate plan, you should hire an experienced estate litigation attorney to avoid any unintended distributions of your estate. In 2010, the California Court of Appeal held ...

Nonqualified Plans Nonqualified plans include Individual Retirement Accounts (IRAs), Simplified Employee Pensions (SEP), deferred compensation plans, 403(b) plans with a custodial account, and plans ...

Anti-Alienation Clause ERISA-compliant plans contain an anti-alienation clause that prohibits the creditors of the participant as well as that of the sponsoring organization from attaching the assets ...

There are certain protections that exist under both the federal and California law that shield retirement plans from creditor claims. Such protections may be beneficial to individuals who do not only ...

To continue our blog on Knox v. Dean (205 Cal.App.4 th 417 (2012)), Donna (successor conservator , plaintiff, cross-defendant and appellant) appealed the trial court's decision granting Dean's ...

Trustees and those entrusted to act as successor trustees should note that the probate court has the authority to compel a formal, verified accounting as a preliminary step in any court dispute which ...

A case that is currently making it's way through the San Francisco Probate Court demonstrates the importance of choosing the right person to be a trustee. Especially, in the case of a special needs ...

If you are planning on making changes to your estate plan, or if you are drafting an estate plan for the first time, you should ensure that your capacity will not be called into question. A ...

In yesterday's blog, we discussed how capacity affects a person's ability to execute a will in California. Pursuant to California Probate Code section 811 a determination that a person lacks the ...

In yesterdays' blog we determined situations where capacity can be an issue for someone looking to draft a will. In fact, for that reason, California has established very specific guidelines for ...

American musician Lewis Allan "Lou" Reed, the front man for the 1960s band The Velvet Underground, left majority of his $15 million estate to his wife, Laurie Anderson. Reed, who underwent a liver ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

As we mourn the loss of a great actor who moved us with his performance as Mafia boss Tony Soprano in "The Sopranos", we also take this opportunity to look at the tax ramifications of his estate ...

Marvin v. Marvin (18 Cal. 3d 660 (1976)) is a landmark "palimony" case which held that a contract between unmarried partners was enforceable unless it was based on an illicit or unlawful ...

A gifting strategy that allows a couple to take advantage of the gift tax exemption while retaining access to the funds is the Spousal Lifetime Access Trust (SLAT). The SLAT is an irrevocable trust ...

California is a Community Property state which means that the spouses must divide all community property equally. California defines community property as "All property acquired during marriage and ...

Continuing from our previous blog on the Conservatorship of the Person and Estate of Maria B., the trial court clerk forwarded the trial court's ruling to the Court of Appeal as an automatic appeal ...

To continue our blog on the Conservatorship of the Person and Estate of Maria B., a public defender was appointed as Maria's counsel and opposed Denise's petition on the grounds that (1) Probate Code ...

A petition to authorize medical procedures that has the incidental effect of sterilization requires a clear and convincing evidence standard to protect an individual's right to procreative choice. The ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

As we mourn the loss of a great actor who moved us with his performance as Mafia boss Tony Soprano in "The Sopranos", we also take this opportunity to look at the tax ramifications of his estate ...

If you think that by simply creating a revocable living trust ,as opposed to a will, that certain inheritance taxes will be avoided, you may want to think again. People that are not familiar with the ...

To continue our blog on the Estate of Redfield (193 Cal. App. 4 th 1526 (2011)), Nancy Horan (petitioner and appellant) appealed the trial court's decision to reopen the final judgment of the probate ...

Continuing from our previous blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), Norman Bartsch Herterich (Objector and appellant) ...

In continuation of our blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), after Hans Bartsch's death, Arndt Peltner (petitioner ...

A no-contest clause or an "in terrorem" clause is a provision in a testamentary instrument that is meant to discourage beneficiaries from disputing a will . This clause is typically used to threaten ...

Under the California Probate Code, an omitted spouse is a surviving spouse that was unintentionally disinherited under a will or trust that was executed prior to marriage. The law provides for the ...

Continuing our blog on the omitted spouse and specifically, the Estate of Will (170 Cal.App.4 th 902 (2009)), Gertrude appealed the probate court''s decision to honor the prenuptial agreement and ...

In continuation of our blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), after Hans Bartsch's death, Arndt Peltner (petitioner ...

To continue our blog on Straley v. Gamble; approximately two weeks after decedent's death, William O. Gamble III (trustee, defendant and trustee) served Steven Straley (decedent's son; plaintiff and ...

The Estate of Gardner, Jr. (187 Cal.App.4 th 543 (2010)) involved the disposition of assets through a nonprobate transfer. Accordingly, the Probate Code does not govern these kinds of transfers. ...

Glenn Neasham, an insurance agent by trade, sold an Allianz MasterDex 10 annuity to Fran Schuber, an 83-year old woman. The MasterDex 10 annuity was approved for sale by the California Department of ...

The case of Samuel Nevarrez v. San Marino Skilled Nursing and Wellness Centre et al., began in March 2009 when a 79-year old patient was admitted to San Marino (defendants and appellants) for ...

In Samuel Nevarrez v. San Marino Skilled Nursing and Wellness Centre, et al., a newly published elder abuse case involving a former patient's claims for elder abuse , negligence and violations of ...

The new state budget bill for the next fiscal year has been passed by Governor Jerry Brown, bringing good news for Medi-Cal recipients. As a part of the new legislation, substantial changes are ...

In continuation with our blog on The People v. Neasham, Glenn Neasham (defendant and appellant) appealed his conviction for committing theft from an elder and dependent adult by selling her an annuity ...

Glenn Neasham, an insurance agent by trade, sold an Allianz MasterDex 10 annuity to Fran Schuber, an 83-year old woman. The MasterDex 10 annuity was approved for sale by the California Department of ...

To continue our blog on Diaz v. Bukey (195 Cal.App.4 th 315 (2011)), Marie L. Bukey (trustee, defendant and appellant) appealed the trial court's decision denying the petition to compel arbitration. ...

Most people understand there are benefits to having a will or living trust. It is an unfortunate fact, however, that close to 55% of all American adults are currently living without a will or any type ...

Continuing from our previous blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), Norman Bartsch Herterich (Objector and appellant) ...

Imagine a typical scene at your household during the holidays. It probably includes just about your entire family gathered around one table – two if you have young children in your family tree – ...

A no-contest clause or an "in terrorem" clause is a provision in a testamentary instrument that is meant to discourage beneficiaries from disputing a will . This clause is typically used to threaten ...

A pretermitted heir is a person who would likely stand to inherit under a will or trust , except that the person who wrote the will (testator) or trust (settlor) did not know, or did not know of, the ...

Often in the waning years of people’s lives, they may become susceptible to fraud or abuse. Also, family issues can be difficult to work out, especially after you have all lost someone close to you. ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

I would wager that the main type of property you would want to have protection for when you die would be your home. Many states, including California, have what are called homestead allowance ...

The new state budget bill for the next fiscal year has been passed by Governor Jerry Brown, bringing good news for Medi-Cal recipients. As a part of the new legislation, substantial changes are ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

As we mourn the loss of a great actor who moved us with his performance as Mafia boss Tony Soprano in "The Sopranos", we also take this opportunity to look at the tax ramifications of his estate ...

Continuing from our previous blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), Norman Bartsch Herterich (Objector and appellant) ...

In continuation of our blog on the Estate of Hans Barsch (193 Cal. App. 4 th 885 – Cal: Court of Appeal, 1 st Appellate Dist., 1 st Div, 2011), after Hans Bartsch's death, Arndt Peltner (petitioner ...

As part of your duties as the estate executor, you will need to collect any employee benefits or death benefits that the decedent may have been eligible for. Such benefits may include retirement ...

A person who is subject to a conservatorship may still have the capacity to set up their own estate plan. The appointment of a conservatorship is a consideration in determining whether the conservatee ...

In 2009, The California Appellate District Court applied the current California test for standing and sufficiency for a petition for guardianship . This Case involved Petitioner Paul Petersen, the CEO ...

In estate litigation, it is important to consider elder abuse , fraud and undue influence. The California State government has attempted to address these issues with legislation. In 2009, State ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

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 instrument." ...

Not according to the California courts. In the case of Christopher Gene Fazzi v. Norma Jean Klein, 2010 Cal. App. LEXIS 2112 , Christopher sought to remove his mother, Norma, has the sole trustee for ...

There are instances when a will has been revised to change the distribution of assets amongst beneficiaries. Some of these wills may have a no-contest clause that would prevent anyone from contesting ...

To continue our blog on Hernandez v. Kieferle, Claudine appealed the probate court's judgment invalidating the 2008 amendment and confirming the Hernandezes as Gertrude's successor trustees. Claudine ...

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, ...

Yesterday, we discussed about guardianship and parental unfitness under Probate Code section 1513 (c). In a similar vein, we will discuss about parental rights termination based upon child's best ...

The drama surrounding Ariel Winters of Modern Family fame and her 32 year-old sister's quest to obtain guardianship over her brings to mind a guardianship case titled Guardianship of Christian G. ...

This week a new act called the Guardian Accountability and Senior Protection Act was approved by the Senate Judiciary Committee. The act was sponsored by Minnesota Sen. Amy Klobuchar and it's purpose ...

A Private Letter Ruling (PLR) is a written response by the Internal Revenue Service (IRS) to a taxpayer's request for information. A PLR can be used by a taxpayer for guidance on whether to take ...

A pretermitted heir is a person who would likely stand to inherit under a will or trust , except that the person who wrote the will (testator) or trust (settlor) did not know, or did not know of, the ...

Under the California Probate Code, an omitted spouse is a surviving spouse that was unintentionally disinherited under a will or trust that was executed prior to marriage. The law provides for the ...

To continue our blog on the Estate of Redfield (193 Cal. App. 4 th 1526 (2011)), Nancy Horan (petitioner and appellant) appealed the trial court's decision to reopen the final judgment of the probate ...

The majority of people who do estate litigation seek to avoid probate. In fact, part of avoiding probate involves having a savvy estate plan. estates must go through probate. Additionally, probate is ...

Many people are not quite sure what it means to hold property in "joint tenancy." You may hold real property (real estate) and personal property like bank accounts, cars or investments in joint ...

A task force comprised of officials from several states have discovered that insurers have failed to payout to beneficiaries over $1 billion worth of life insurance benefits over the last few decades. ...

When your loved one passes away without designating a beneficiary for their life insurance policy or the beneficiaries preceded them in death, what happens now? If the decedent had not completed a ...

When your loved one passes away, and leaves a life insurance policy behind, you will have to determine whether or not that policy must be used to pay off the decedent's debts. The easiest way to do ...

Even though the federal estate tax was repealed in 2010, a $5 million exemption came back retroactively which is also effective for 2011 and 2012. In 2013, the exemption will decrease to only $1 ...

Obtaining Life Insurance coverage is often a part of the estate planning process. If you have multiple life insurance policies you may want to consider a Life Insurance Trust. a life insurance trust ...

Living trusts have some disadvantages. These include: Preparation of a living trust oftentimes costs more than a will . However, the difference in costs may not be significant if the will is complex. ...

A trust usually involves three parties: the settlor who is the creator of the trust , the trustee or trustees who agree to manage the assets as directed by the terms of the trust , and the ...

To continue our blog on Kucker v. Kucker ((2011) 192 Cal.App.4th 90), Megan Kucker and Bonnie Alexander (trustees, plaintiffs and appellants, respondent) appealed the probate court's order denying ...

The new state budget bill for the next fiscal year has been passed by Governor Jerry Brown, bringing good news for Medi-Cal recipients. As a part of the new legislation, substantial changes are ...

For the last portion of our blog on payable on death or totten trust accounts (a form of trust in the U.S. in which a settlor places money in a bank account or security with instructions that upon the ...

To continue our blog on the Estate of Gardner, the guardian of the Decedent's daughter (on behalf of her daughter ) filed an opposition to the petitioner's and appellant's petition in February 2009. ...

In Flowers v. Dancy, the Court of Appeals affirmed the trial court's ruling and central finding that Andre is prohibited from attacking the forged deed to McIntyre due to the unclean hands doctrine. ...

Additional duties and responsibilities of the personal representative are as follows: Insurance. The California personal representative is required to obtain and maintain adequate insurance covering ...

Additional duties and responsibilities of the personal representative include: Inventory the Estate Property. The personal representative must locate and take possession of all the decedent's property ...

Upon the court's appointment, the personal representative becomes an officer of the court and takes on certain duties and responsibilities. These duties and responsibilities include: Managing the ...

I've seen a lot of odd decedent requests written into their wills, but the following will provision is one of the strangest I've recently read about. Georgia Dvorak of the Chicago area was a lover and ...

How can a dog be a millionaire? With the recent trend of pet trusts as part of the estate litigation process, some dogs have been able to "inherit" substantial wealth. The latest class of pet ...

To continue our blog on Kucker v. Kucker ((2011) 192 Cal.App.4th 90), Megan Kucker and Bonnie Alexander (trustees, plaintiffs and appellants, respondent) appealed the probate court's order denying ...

A general assignment of assets, as the name implies, transfers ownership of a wide variety of personal assets. This is typically used by estate planners to transfer all types of financial instruments ...

Michael Jackson set up the Michael Jackson Family Trust which will leave his three children with a $33 million trust fund each - but they won't be able to completely access their money until they are ...

A Power of Attorney is a legal document which designates another individual to act on your behalf should you be unable to do so due to physical or mental incapacitation. A Power of Attorney can give a ...

In the Academy Award nominated film, The Descendants, the main character played by George Clooney must deal with not only handling his personal family issues, but also must contend with several major ...

So, you've found yourself named as the acting agent under general durable power of attorney. Here are a few simple guidelines to help you understand and carry out the duties required of you under this ...

A Private Letter Ruling (PLR) is a written response by the Internal Revenue Service (IRS) to a taxpayer's request for information. A PLR can be used by a taxpayer for guidance on whether to take ...

Starting in April 8, 2013, the Los Angeles Superior Court (LASC) consolidated its probate divisions in an effort to save between $55 million and $85 million for the 2013-14 fiscal year. All probate ...

Not all property go through probate . Assets that are part of a person's "non-probate estate" can be distributed outside the probate process. Life insurance or retirement benefits such as IRA's ...

In California, the personal representative and the attorney for the personal representative are allowed to take a statutory fee for ordinary services. The fee is calculated as a percentage of the ...

The Estate of Will exemplifies one of the exceptions precluding a surviving spouse who was omitted from an existing testamentary instrument from receiving a share in his or her deceased spouse's ...

In the People v. Runyan, the trial court convicted Runyan of gross vehicular manslaughter and ordered him to pay Benge's (victim) estate restitution damages of approximately $450,000. Runyan appealed ...

The majority of people who do estate litigation seek to avoid probate. In fact, part of avoiding probate involves having a savvy estate plan. estates must go through probate. Additionally, probate is ...

As we mourn the loss of a great actor who moved us with his performance as Mafia boss Tony Soprano in "The Sopranos", we also take this opportunity to look at the tax ramifications of his estate ...

Another estate litigation technique is an installment sale of income producing property to a grantor trust. A grantor trust, under the provisions of the Internal Revenue Code, is a trust that is not ...

A gifting strategy that allows a couple to take advantage of the gift tax exemption while retaining access to the funds is the Spousal Lifetime Access Trust (SLAT). The SLAT is an irrevocable trust ...

Another estate litigation technique is an installment sale of income producing property to a grantor trust. A grantor trust, under the provisions of the Internal Revenue Code, is a trust that is not ...

A Private Letter Ruling (PLR) is a written response by the Internal Revenue Service (IRS) to a taxpayer's request for information. A PLR can be used by a taxpayer for guidance on whether to take ...

Often in the waning years of people’s lives, they may become susceptible to fraud or abuse. Also, family issues can be difficult to work out, especially after you have all lost someone close to you. ...

To continue our blog on Diaz v. Bukey (195 Cal.App.4 th 315 (2011)), Marie L. Bukey (trustee, defendant and appellant) appealed the trial court's decision denying the petition to compel arbitration. ...

Arbitration is a resolution technique in which a dispute is resolved by an impartial adjudicator outside the court system; and wherein the parties to the dispute agree to be bound by the adjudicator's ...

To continue our blog on Diaz v. Bukey (195 Cal.App.4 th 315 (2011)), Marie L. Bukey (trustee, defendant and appellant) appealed the trial court's decision denying the petition to compel arbitration. ...

Arbitration is a resolution technique in which a dispute is resolved by an impartial adjudicator outside the court system; and wherein the parties to the dispute agree to be bound by the adjudicator's ...

To continue our blog on Fiduciary Trust International of California v. Superior Court, Betty Brown (decedent), changed her will after Willet's death. Instead of leaving the majority of Betty's assets ...

Often in the waning years of people’s lives, they may become susceptible to fraud or abuse. Also, family issues can be difficult to work out, especially after you have all lost someone close to you. ...

One of the most common reasons to hire a trust litigation attorney is to have legal guidance and assistance with the administration of trust after the death of a loved one. Wills, trusts and the ...

Arbitration is a resolution technique in which a dispute is resolved by an impartial adjudicator outside the court system; and wherein the parties to the dispute agree to be bound by the adjudicator's ...

To continue our blog on Diaz v. Bukey (195 Cal.App.4 th 315 (2011)), Marie L. Bukey (trustee, defendant and appellant) appealed the trial court's decision denying the petition to compel arbitration. ...

Arbitration is a resolution technique in which a dispute is resolved by an impartial adjudicator outside the court system; and wherein the parties to the dispute agree to be bound by the adjudicator's ...

Continuing our blog on Straley v. Gamble; Steven Straley (decedent's son; plaintiff and appellant) appealed the trial court's ruling stating that Steven's petition was time-barred by Probate Code ...

Imagine a typical scene at your household during the holidays. It probably includes just about your entire family gathered around one table – two if you have young children in your family tree – ...

A living trust or an inter vivos trust is an estate litigation tool that enables the creator of the trust to transfer assets to beneficiaries without going through probate . It is a written agreement ...

American musician Lewis Allan "Lou" Reed, the front man for the 1960s band The Velvet Underground, left majority of his $15 million estate to his wife, Laurie Anderson. Reed, who underwent a liver ...

Glenn Neasham, an insurance agent by trade, sold an Allianz MasterDex 10 annuity to Fran Schuber, an 83-year old woman. The MasterDex 10 annuity was approved for sale by the California Department of ...

There are instances when a will has been revised to change the distribution of assets amongst beneficiaries. Some of these wills may have a no-contest clause that would prevent anyone from contesting ...

To continue our blog on Hernandez v. Kieferle, Claudine appealed the probate court's judgment invalidating the 2008 amendment and confirming the Hernandezes as Gertrude's successor trustees. Claudine ...

A no-contest clause or an "in terrorem" clause is a provision in a testamentary instrument that is meant to discourage beneficiaries from disputing a will . This clause is typically used to threaten ...

We continue our blog on the Estate of Trikha, which is about a father who executed a will three weeks before committing suicide. Satish Trikha's will made provisions for all his children, including ...

There is a presumption under Probate Code section 6124 that the testator (a person who makes a will ) destroyed the will with the intent to revoke it where the will was last in the testator's ...

Imagine a typical scene at your household during the holidays. It probably includes just about your entire family gathered around one table – two if you have young children in your family tree – ...

American musician Lewis Allan "Lou" Reed, the front man for the 1960s band The Velvet Underground, left majority of his $15 million estate to his wife, Laurie Anderson. Reed, who underwent a liver ...

A no-contest clause or an "in terrorem" clause is a provision in a testamentary instrument that is meant to discourage beneficiaries from disputing a will . This clause is typically used to threaten ...