Welcome to the Barr & Barr Blog
We hope to use this blog to educate and inform our clients, friends and the public about the subjects we know best – estate planning, estate and trust litigation, the administration of estates and trusts, and the detection and prevention of elder abuse. If you have any questions about our thoughts, opinions, or strategies, please feel free to give us a call.
Fiduciary and Probate Court Accountings
For many people serving as fiduciaries, such as trustees and conservators, one of the most time-consuming endeavors you will undertake is preparing an accounting. A fiduciary’s accounting is a numerical summary of the actions he or she has taken during the period of the account, and serves as a shield against allegations of wrongdoing. The standards for when an accounting is due vary considerably. For example, trustees must account yearly, on change of trustee, and at termination of the trust, unless the trust modifies or waives the duty...
Choosing the Right Fiduciary
You’ve decided whom you want to leave your estate to, you’ve hired an attorney, and you’re all set to have a living trust, will, and powers of attorney prepared for you. You go to your lawyer’s office and he or she asks you: “Who would you like to be your trustee? Your executor? Your attorney-in-fact? Your agent for health care?” For many people, this is the first time they have thought about these questions, but these are some of the most important questions in the estate planning process. All of these people –...
Testimony of Elderly Witnesses in Trust & Estate Litigation
The testimony of elderly witnesses is often necessary in trust and estate litigation. When preparing for trial involving an elderly witness, counsel should anticipate the potential issues involving disqualification of the witness based on incapacity or exclusion of testimony based on lack of personal knowledge. In some instances, the elderly witness is disqualified from testifying based on incapacity. A person may be disqualified to be a witness if he is incapable of expressing himself concerning the matter or incapable of...
The Attorney-Client Privilege in Trust & Estate Litigation
Generally, when someone hires a lawyer, anything they say and write to that lawyer is confidential and protected from disclosure to the outside world. This concept is referred to as the attorney-client privilege. The attorney-client privilege is designed to facilitate candid communication between client and lawyer, thereby aiding the lawyer in providing the client with the best advice possible under the circumstances. The courts consider honoring and enforcing the attorney-client privilege to be of paramount importance. However, in the...
How Should I Title My House?
If you are a married couple without a living trust, the manner in which you take title to your home can be critical. The three common ways for a married couple to title their home are explained below. Joint Tenants Joint tenancy is a form of ownership that includes a “right of survivorship.” At the first spouse’s death, his or her interest passes to the surviving spouse by operation of law. In other words, the property passes without probate administration, and passes to the surviving spouse irrespective of the terms of the...
New York Times: Anatomy of a Family Feud
It is not uncommon for tension to exist between the children of a parent’s first marriage and the parent’s new spouse or partner. In fact, this is a classic scenario from which estate and trust litigation arises. The children are often concerned that the new spouse may inherit too much (or all) of their deceased parent’s hard-earned savings, while the parent typically chafes at any interference from their children. Naturally the new spouse resents the implication that he or she has any designs on their spouse’s money. The New...
Planning for Incapacity
PLANNING FOR INCAPACITY Estate planning involves more than determining who will get your estate when you die. It can also be used to plan for the possibility of incapacity — to make plans now that willdetermine how your health care and finances will be managed if you experience poor mental or physical health in the future. Here are a few simple tools for incapacity planning: Power of Attorney A power of attorney is a document that authorizes someone you nominate, called an “attorney-in-fact,” to make financial decisions for...
The Most Recognizable Estate Planning Tool – the Will
Creating a will is usually the first thing that comes to mind when clients consider estate planning. A will can be an inexpensive and simple way for a person to plan for events after his or her death. However, the legal requirements for creating a valid will in California can be complicated. What is a Will? A will is a legal document that gives specific instructions to be carried out upon a person’s death. The person who makes the will is called the “testator” and the person appointed to carry out the intentions of the testator is...
The Role of the Discovery Plan in Trust & Estate Litigation
Once litigation has been initiated (a petition/complaint filed and served), one of the first aspects of managing a case is creating a “discovery plan.” The first step in creating a discovery plan is to analyze what needs to be proved, with respect to our case and the opponent’s case. The goal of discovery is to obtain evidence necessary to evaluate the case and prepare for settlement and trial. Besides obtaining critical evidence, conducting discovery early, at the outset of a case, allows us to constantly advise the...
How Much Will It Cost?
One of our goals with this blog is to address some of the questions we are most frequently asked by our clients. One of those questions – and the one that is probably the most frightening to clients – is “how much is it going to cost?” As you would expect, the answer depends on the type of work we are asked to perform. For estate planning most of our work is done on a “flat-fee” basis, which means that at our first meeting we will review your situation, explain your options, and tell you exactly what we will charge to prepare...