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Arbitrations v. Class Actions

August 22nd, 2017

The Consumer Financial Protection Bureau recently finalized a controversial rule that prohibits financial-service companies from including arbitration clauses in their contracts with consumers that block those consumers from joining class action lawsuits. The rule stops short of prohibiting all arbitration clauses. According to the CFPB, “the new rule will deter wrongdoing by restoring consumers’ right…

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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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We often warn clients that mental capacity is a double-edged sword

February 21st, 2017

Edge #1 The current litigation involving billionaire media magnate Sumner Redstone illustrates the point.  Mr. Redstone, age 93, owns about 80 percent of CBS and Viacom—reportedly a $40 billion media empire.  In November 2015, Mr. Redstone’s former “companion,” Manuela Herzer, challenged Mr. Redstone’s mental capacity in Los Angeles Superior Court.  Ms. Herzer alleged that Mr….

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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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The 8 Stages of California Trust & Estate Litigation: Trial

February 21st, 2017

Although most trust, estate, and elder abuse cases eventually settle, we prepare each case as if it will go to trial.  All of the stages previously described in this series (from initial research through discovery and expert witness depositions) have the same objective — presenting the best possible case at trial. Trust and estate cases…

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The 8 Stages of California Trust & Estate Litigation: Trial Preparation

February 21st, 2017

Preparing for trial in an estate or trust litigation case can be an intense and time consuming process for attorneys and clients.  Although preparing for trial begins the moment we are retained, the process intensifies in the last few weeks before trial as the evidence accumulated during the discovery process is marshaled and organized into…

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Estate Tax Changes in 2013 – “Portability” Becomes Permanent

February 20th, 2017

The “fiscal cliff” crisis of Christmas of 2012 culminated in the American Taxpayer Relief Act of 2012.  The Act made permanent the “portability” law contained in a previous law passed in 2010. Portability allows a surviving spouse to claim the unused estate tax credit of a predeceased spouse.  The “estate tax credit” or “estate tax…

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We Welcome a New Partner

February 21st, 2017

Dear Friends, I’m pleased to announce that I have formed a new firm with one of my oldest friends.  The new firm, Barr & Young, will remain in our current office in Danville and we will continue to do what we have always done – estate and trust litigation, estate planning and administration, elder abuse…

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Guidance for Estate and Trust Litigants, Part VI: Get Advice Before You Say or Do Anything

February 21st, 2017

Although in most cases litigants are not required to hire an attorney, if you have read the previous posts in this series, you will not be surprised that we counsel against “doing it yourself.” This guidance is not directed primarily at clients who have been served with a complaint or petition, as most people call…

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