San Diego Estate Planning Lawyer Blog

Published on: November 8, 2013

Making a Federal Case Out of Your Estate

Estate planning is intended to prevent disputes from arising after your death. Of course, good intentions aren’t always enough. Even the most carefully planned estate may be subject to fighting among aggrieved relatives or other would-be heirs. In some cases, these fights can tie up the courts (and your estate) for many years.

For the most part, when lawsuits do arise over a trust or estate, things are handled at the state level. In California, the superior courts act as probate courts to resolve matters like will contests or petitions to remove a trustee. The decisions from these courts may then be appealed to the California Court of Appeals, and, in rare instances, to the California Supreme Court.

Federal courts generally stay away from probate matters. As far back as 1789, when Congress created the federal courts, the probate of estates was considered a purely state affair. But this probate exception to federal jurisdiction is not without limits. In 2006, the U.S. Supreme Court said federal courts could hear cases that touched upon probate matters if the underlying dispute involved a subject (such as tort law) that was normally subject to federal jurisdiction.

Published on: October 25, 2013

Understanding the Consequences of a “No-Contest” Clause In Your Will or Trust

by Scott C. Soady

The whole point of making a will or trust is to prevent disputes over the disposition of your estate after your death. One way to protect your estate plan is to include a no-contest provision in your trust or will. Basically, a no-contest provision states that if a person tries to challenge any part of your trust or will in court-and fails-he or she forfeits any inheritance from your estate. No-contest provisions have long been recognized by courts, and in 2010, the California legislature expressly recognized such provisions in the state’s Probate Code.

A recent California Court of Appeal decision demonstrates how this works in practice. In this case, the court upheld a no-contest clause. Please note this case is discussed for illustrative purposes only and should not be construed as a binding statement of California law.

A Son Tries to Change His Mother’s Trust (and Loses)

Published on: October 23, 2013

When Does an Advance Directive for Healthcare Take Effect?

by Scott C. Soady

An advance directive provides your physician and other healthcare providers with instructions regarding your care in the event you are no longer able to make your wishes known. An advance directive also enables you to appoint an agent to make healthcare decisions on your behalf. It’s important you provide clear instructions to your agent so that he or she does not act in a manner contrary to your wishes.

Even healthcare providers can misunderstand the scope of an advance directive. A recent California Court of Appeals decision addressed such a case. Please note, this case is discussed here for informational purposes only.

Goldman v. Sunbridge Healthcare, LLC

Published on: October 16, 2013

Think Carefully Before Naming Multiple Trustees (Or Executors)

by Scott C. Soady

The purpose of California estate planning is to prevent your children or other family members from fighting over your assets after you’re gone. But even the best intended plan can go awry. A recent California case demonstrates the problems that may arise when one child is charged with overseeing the distribution of an estate to another child.

This case is discussed here for informational purposes only and should not be construed as an authoritative statement of California law. The subject of the case is the estate of Lydia Wezel, who died in 2006. In 1991, Wizel established a trust as part of her estate plan. She intended her two children, Jill Wizel and Robert Brown, to benefit from the trust after her death. Lydia Wezel transferred her home into the trust and instructed her successor trustees to distribute the property to Jill Wizel. The balance of the trust estate, less a few gifts specified by Lydia Wizel, would be divided between Jill Wizel and Brown.

Upon Lydia Wizel’s death, the trust named Jill Wizel and Edward Ezor as co-successor trustees. Within a few months, questions arose regarding Jill Wizel’s competency to serve as trustee. According to court records, she was hospitalized for psychosis and had a history of drug, alcohol and gambling addiction. Ezor knew about Wizel’s problems but did not act to remove her as co-trustee. Instead, he took advantage of the situation, paid himself a $10,000 fee for his “services” as trustee without actually carrying out the trust’s instructions. Notably, he failed to properly divide and distribute the balance of the trust assets to Wizel and Brown.

Published on: October 11, 2013

California Appeals Court Clarifies Burden of Proof In Will Contest

by Scott C. Soady

It’s called a last will and testament because the document is meant to serve as a final disposition of property upon death. When a person makes a new last will and testament, he or she thereby revokes of any previous testamentary instrument. But what happens if a person dies and it’s not clear whether or not he’s revoked his will? The California Court of Appeals recently addressed this situation in a case arising from a family tragedy.

Satish Trikha died in 2009. He was in the midst of a nasty divorce from his wife, Suchitra Trikha. The couple’s problems began in 2008, when Suchitra Trikha discovered her husband had resumed contact with two of his children from a prior relationship. Suchitra Trikha believed these other children were a “black mark” on her traditional Indian family. At one point, she offered to end divorce proceedings if Satish Trikha formally disinherited the two older children and placed his assets in a trust for the benefit of their own two children.

Satish Trikha checked into a Yorba Linda hotel on October 25, 2009. A hotel clerk found his dead body three days later. The coroner’s inventory of Trikha’s personal items recovered the room did not include either a suicide note or a will. Suchitra Trikha and her son, Neel Trikha, subsequently searched Satish’s car and later testified there were no legal documents inside.

Published on: October 4, 2013

“She’s Just Like a Daughter to Me!” But Is That How a Probate Court Will See It?

by Scott C. Soady

Under California probate law, adopted children are treated no differently than biological children. So, for example, if a person dies without a will, his adopted and natural children are afforded the same status as heirs under California’s intestacy law. But that presumes the adopted children are, in fact, adopted in accordance with the law of California or another jurisdiction. What about children who are informally-i.e., not legally-adopted?

Many common law jurisdictions recognize “equitable adoption.” This means that if a person fulfills the role of a child, and the “parent” reciprocates, the courts may recognize a contractual relationship exists for the purposes of establishing intestate succession. As recognized by California courts, equitable adoption establishes the child’s right to receive property from the parent if he or she dies without a will.

It’s important to note that equitable adoption has no affect on estates where there is a valid will. Nor does it affect trusts. The only application of equitable adoption is to estates subject to intestacy law.

Published on: October 3, 2013

Changes to a Living Trust Leads to Breach of Contract Claims

by Scott C. Soady

Estate planning is supposed to prevent arguments among family members after you pass away. But even the best-laid plans are subject to changes in family relationships. One recent California appeals court decision highlights what can go wrong when a deteriorating marriage intersects with inheritance.

Please note this case is described here for informational purposes only and should not be construed as legal advice. The subject of this case is a home in Alameda County owned by the late Henry Rodriguez. In the late 1990s, Rodriguez asked his niece, Mirian Duncan, and her husband Edward to move into his home. Rodriguez had recently underwent heart surgery. He wanted the Duncans to help care for him and his home. In exchange, he promised to give them the house after he died this is known as a care contract.

To that end, Rodriguez executed a revocable living trust in 1998. Rodriguez transferred his house into the trust and directed that upon his death, the property would go to the Duncans “equally, as their joint and/or marital property.” The Duncans held up their part of the deal, moving into the home and caring for Rodriguez until his death in 2007.

Published on: September 30, 2013

California Appeals Court Upholds Ex-Partner’s Right to Property Under Trust

by Scott C. Soady

Estate planning for unmarried couples in a long-term relationship presents a unique set of legal challenges. California does not recognize “common law” marriages, but in 1976, the state’s Supreme Court held that unmarried couples could enter into binding legal contracts (either express or implied) allowing them to “pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property.” These so-called Marvin agreements-named for actor Lee Marvin, the defendant in the 1976 case-allow courts to look at the overall nature of a non-marital relationship and grant equitable relief in certain cases.

Marvin agreements can also affect California estate planning. Recently, the California Court of Appeal opined for a second time in a dispute between a former unmarried couple over the fate of a living trust they established to hold their common home. The case is discussed here for illustrative purposes only and should not be construed as a binding statement of California law.

An Ex-Partner Still Owes a Fiduciary Duty

Published on: September 27, 2013

Unsolved Murder Prompts Litigation Over Life Insurance Proceeds

by Scott C. Soady

A four-year-old unsolved murder in the Harbor Gateway neighborhood of Los Angeles created a legal headache for the victim’s life insurance company. The victim’s husband was the only named beneficiary of her life insurance policy, but he was also an active suspect in her murder. Since the victim left no will or other instructions regarding her affairs, the insurance company was forced to ask the courts to intervene.

Frank and Rosamaria Rees each held life insurance policies for $150,000 from Farmers New World Life Insurance Company. Rosamaria Rees’ policy insured her life and named her husband as sole primary beneficiary. She did not name any contingent beneficiaries. If Frank Rees predeceased his wife, then her life insurance proceeds would be payable to her estate.

On September 18, 2009, Rosamaria Rees was walking to her car parked on the street outside of her home. According to the Los Angeles Police Department, “an unknown suspect or suspects approached on foot and shot her,” killing her instantly. The LAPD has never made an arrest in the case.

Published on: September 18, 2013

Never Represent Yourself (or a Deceased Relative) In Court

by Scott C. Soady

When it comes to California estate planning, it’s important to understand that you’re dealing with a legal process. The administration of estates (and trusts) is strictly governed by California and federal law. It is not a casual or informal procedure. Personal representatives and trustees should always work with an experienced estate planning attorney to guide them through this legal process.

It’s especially inadvisable to represent yourself in connection with a trust or estate matter that’s already in court. Consider this recent case from a federal court in San Francisco. In 2006, Helen Evans took out an adjustable rate home equity conversion mortgage-popularly known as a “reverse mortgage”–on her residence in the amount of $544,185. With a reverse mortgage, the borrower need not make any payments until he or she no longer resides in the property secured by the loan.

When Evans died years later, the mortgage holder, Wells Fargo, demanded full repayment of the outstanding balance, which was nearly $250,000. Wells Fargo foreclosed on the residence and moved to sell it at auction. Evans’ son, Leonard Evans, objected and decided to take matters into his own (legal) hands. Acting without an attorney, Evans sued Wells Fargo in Contra Costa County Superior Court, alleging various defects in Wells Fargo’s actions.