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The Limited Effectiveness of “No Contest” Clauses in California Trust & Estate Litigation

June 12th, 2017

One of the biggest misconceptions in California trust litigation concerns the effectiveness of no contest clauses.  This article explains no contest clauses and their limited effectiveness in California trust and estate litigation. _________________ A “no contest clause,” according to California Probate Code section 21310(c), is “a provision in an otherwise valid instrument that, if enforced, would…

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Probate Code 15305: Support Creditor’s Claim Against a Spendthrift Trust

February 21st, 2017

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…

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Probate Code 16004.5: Release of Trustee’s Liability

February 21st, 2017

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…

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A Trustee’s Reasonable Reserve

February 21st, 2017

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…

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How to Transfer Firearms to Trust Beneficiaries

February 21st, 2017

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…

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Can I Recover My Attorney’s Fees?

February 21st, 2017

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…

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California Fiduciary and Fiduciary Duty Defined

February 21st, 2017

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,…

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Avoiding Trust Litigation—the Benefits of a Trust Accounting

February 21st, 2017

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…

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The Prudent Investor Rule for Trustees in Litigation

February 21st, 2017

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,…

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Guidance to Trustees Regarding Trust Distributions

February 21st, 2017

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…

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