Many California living trusts contain a “spendthrift clause”— a clause designed to protect trust assets from claims made by a beneficiary’s creditors.  Spendthrift provisions commonly include a “shutdown clause,” which stops payments to a beneficiary during any time that the trust could be subject to creditors’ claims.  A recent decision held that under California Probate…

At the conclusion of a trust administration, trustees sometimes ask beneficiaries to acknowledge receipt of their final distribution and release the trustee of liability.  While seeking a release is permitted under California Probate Code Section 16004.5, the release must be given voluntarily by the beneficiary.  This article discusses Section 16004.5 in the context of Bellows…

In a trust administration, a “reserve” is money the trustee retains for a period of time after the trustee believes the trust administration is complete. The key here is the world believes, because sometimes, when it seems all the work is done—property sold, tax returns filed, taxes paid, creditors’ claims extinguished, and beneficiaries’ gifts distributed—things…

With over 300 million guns in the hands of private citizens in America, it’s not surprising that California trustees often find themselves in the possession of firearms belonging to a deceased settlor, with the responsibility to safeguard them pending the transfer to the beneficiaries. Who’s Responsible? Anyone, including a fiduciary, can be liable for transferring…

Litigation is expensive. Although every case is different, it is not uncommon for a case that runs through trial to cost each side hundreds of thousands of dollars in attorney’s fees.  As a result, a litigant should always evaluate whether he or she may have a right to recover their attorney’s fees if a case…

One of the unique aspects of trust, estate, and conservatorship litigation is the fiduciary duties that one party often owes to an opposing party. These arcane terms —“fiduciary” and “fiduciary duty”— are rarely heard in everyday conversation, and yet as soon as one has the misfortune of being involved in a trust or will dispute,…

Many estate and trust litigation cases could be avoided if non-professional trustees understood the benefits of preparing a trust accounting. The Role of Trustee Trustees must make the beneficiaries aware of the existence of the trust, keep them informed of the administration, and respond to their reasonable requests for information.  The duty to account is more…

In the midst of a trust contest or other trust-related litigation, it’s easy for trustees to forget that their duties to the contesting beneficiaries continue notwithstanding the ongoing litigation.  A trustee might assume his or her position and immediately face litigation (a demand for an accounting, an emergency conservatorship, or a challenge to the trust,…

When we represent trustees, and particularly when some aspect of the trust administration may be disputed, we often advise them to manage the beneficiaries’ expectations about when they will receive their inheritance.  Many people, having heard that living trusts avoid probate, assume that a trust administration is simple, and that the trust property somehow passes…

A party that loses at trial in a trust or estate dispute generally has a right to appeal.  California Probate Code Sections 1300-1304 enumerate the appealable orders in proceedings governed by the Probate Code.  These sections include specific appealable orders in conservatorship, trust, and estate disputes. The time to appeal is governed by California Rule…

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