Welcome to the Weintraub Resources section. Here, you can find our Blogs, Videos, and Podcasts, in which Weintraub attorneys regularly provide insights and updates on legal developments. You can also find upcoming Weintraub Events, as well as firm and client News.
Published: June 4, 2019
by
Mary deLeo
The Trusts & Estates Law Blog
Last month, my Weintraub colleagues and I had the pleasure of speaking at the Professional Fiduciary Association of California annual conference on the topic of the attorney-client privilege and its application to clients serving in a fiduciary capacity (trustee, executor, conservator, agent, etc.).
Published: May 1, 2019
by
Daniel C. Kim
The Trusts & Estates Law Blog
Based on recent appellate cases, one of which is discussed below, the court’s scrutiny of conservators’ conduct and, specifically, private fiduciaries, is seemingly on the rise. Private fiduciaries acting as conservators should always remain focused on performing and charging only for those services that are consistent with the best interests of their conservatees. California case law continues to refine that understanding.
Published: April 30, 2019
Under California law, the laws of intestacy control who inherits when a person dies without having prepared a valid will or trust. These rules can be complicated particularly as remote or even unknown blood relatives may have a claim to assets of the decedent’s estate. However, these long lost relatives often must prove up their entitlement to inherit from the decedent’s estate.
Published: February 5, 2014
It was recently revealed that the late Paul Walker left his entire estate—valued at approximately $25 million—to his 15-year-old daughter, Meadow.
As reported, Paul Walker named his father as the executor of his will and his mother, Cheryl, as the guardian of Meadow’s person and now-$25 million estate. Prior to his death, Meadow lived with her father but now lives in Hawaii with her mother, Rebecca Soteros. Already, this decision is causing people to wonder why Paul would name someone other than Meadow’s biological mother as Meadow’s guardian.
Published: January 31, 2014
Over thirty-five years after Bing Crosby’s death, the California Court of Appeal put an end to the continuing battle over the Crooner’s right of publicity.
Published: January 16, 2014
by
Edward J. Corey, Jr.
The Trusts & Estates Law Blog
The California Court of Appeal for the Sixth Appellate District issued a ruling Tuesday in Lintz v. Lintz, 2014 Cal. App. LEXIS 27 (6th Dist. January 14, 2014) adopting the reasoning of the Second Appellate District regarding the standard for legal capacity to execute a trust instrument (as announced by the Second Appellate District in Anderson v. Hunt, 196 Cal. App. 4th 722 (2d Dist. 2011)).
In Lintz, the Court concluded that the probate court erred by applying the testamentary capacity standard (i.e., Probate Code section 6100.5) to the trusts and trust amendments in question instead of the “sliding-scale contractual standard” outlined in Probate Code sections 810 through 812. In this case, as the Court noted, the trust instruments were “unquestionably more complex than a will or codicil. They addressed community property concerns, provided for income distribution during the life of the surviving spouse, and provided for the creation of multiple trusts, one contemplating estate tax consequences, upon the death of the surviving spouse.”
Published: January 8, 2014
Family Drama
Casey Kasem’s three adult children from his first marriage have spent the last several months in L.A. County Superior Court fighting their stepmother, Jean, for control of their father’s personal affairs through a conservatorship proceeding.
Published: August 2, 2013
by
Brendan J. Begley
The Trusts & Estates Law Blog
In most California civil cases, a party generally must wait until a trial court issues a final judgment before he or she can get through the doors of the Court of Appeal. While there are a few exceptions, this rule (sometimes called the one-final-judgment rule) prevents litigants from complaining to the appellate court about every ruling in a given case in piecemeal fashion. Even when they receive an appealable judgment, parties to an appeal often find that getting a decision from the reviewing court takes endurance and patience; e.g., the time from the notice of appeal to the decision frequently takes over a year.
Published: July 29, 2013
Trust beneficiaries and litigators beware: the recent case of Drake V. Pinkham ((2013) 217 Cal.App.4th 400) highlights the dangers of waiting to file a trust contest until after the settlor’s death when questions regarding the settlor’s competency arise during the settlor’s lifetime.
Typically, revocable trusts are just that – revocable. A settlor can modify or terminate his or her revocable trust up until death, presuming that he or she retains the capacity to do so. Because a competent settlor has the legal right to change his or her revocable trust up until death, a beneficiary does not usually have the right to contest the revocable trust during the settlor’s lifetime.
The limitation on a beneficiary’s ability to contest a revocable trust during the settlor’s lifetime is contained in Probate Code section 15800. Section 15800 specifically provides that the person holding the power to revoke a trust (e.g. the settlor), and not the beneficiaries, holds the rights under the trust during the time the trust is revocable and the settlor is competent.
But if Probate Code section 15800 prevents a beneficiary from contesting a revocable trust when the settlor is competent, does that mean that a settlor must be formally deemed incompetent before a beneficiary can bring a contest during a settlor’s lifetime? And what happens if a beneficiary, believing a settlor to be incompetent, waits until after the settlor’s death to bring a contest – will that contest fail as untimely?
The answers to those questions are not clear, but the recent case of Drake v. Pinkham indicates that beneficiaries and practitioners should take a “better safe than sorry” approach. In Drake, a settlor’s competency was called into question by a beneficiary in litigation during the settlor’s lifetime. Although no finding of incompetency was made at the time – the litigation was settled – the fact that the beneficiary had alleged that the settlor was incompetent came back to haunt the beneficiary when she later contested the settlor’s trust amendments after the settlor’s death. The trial court found that the beneficiary was aware of the existence and terms of the trust amendments at the time of the earlier litigation and that the allegations of incompetency meant that Probate Code section 15800 did not prohibit the beneficiary from contesting the amendments at that time. The trial court held that by waiting until after the settlor’s death to bring a contest, the beneficiary had forfeited her right to contest the amendments under the doctrine of laches.
Thus, in Drake, the fact that there were merely allegations of incompetency, as opposed to a formal finding of incompetency, did not prevent the trial court from finding that the beneficiary should have brought the contest during the settlor’s lifetime. The court noted that the beneficiary would have had the burden of proving the settlor’s incompetence to establish standing to pursue the contest, but reasoned that this proof requirement did not excuse the delay in asserting the claim. In fact, the court found that the delay in bringing the claim was itself necessarily prejudicial because every cause of action brought by the beneficiary involved the issue of the settlor’s competency, and the most important witness to that issue – the settlor herself – was no longer living. Thus, the beneficiary not only could have initiated the contest during the settlor’s lifetime, but the failure to do so precluded the beneficiary from bringing the action after the settlor’s death.
Consequently, in light of Drake, once a beneficiary of a revocable trust becomes aware of a trust or amendment that he or she wishes to contest, and that contest is based on the belief or allegation that the settlor was incompetent at the time of the execution of the document, the beneficiary should carefully consider bringing the contest even though the settlor is still alive. Otherwise, the beneficiary may well be barred under Drake from bringing a contest if he or she waits until after the settlor’s death.
If you wish to read further on this subject, check out the Court of Appeal’s Ruling: Drake v. Pinkham.
Published: July 18, 2013
by
Kay U. Brooks
The Trusts & Estates Law Blog
Are you having trouble completing or updating your estate plan, although you are convinced you should? Maybe you have a referral to an attorney recommended by a friend or other advisor, but you haven’t yet scheduled the first meeting? Or you have attended the first meeting with your estate planning attorney, but you can’t quite seem to finish your action list for the next meeting?
Estate planning is not the top of anyone’s “to do” list. As an estate planning attorney, part of my job is to help my clients complete their estate plans. No one intends to delay the process, but many times the process stalls.
Here are some ideas that have helped my clients cross the finish line and enjoy the relief that a completed plan brings. See if they work for you!