San Diego Estate Planning Lawyer Blog

Published on: November 22, 2016

How Property Co-Ownership May Complicate Estate Planning

If you co-own real property with others, it is important to clearly establish each party’s interest. Among other reasons, this can have a significant impact on your estate planning because your will or trust can only dispose of your own interest in real estate. Your estate plan will not affect the rights of the other co-owners in most situations.

Brothers Fight Over Share of Mother’s Property

Here is an illustration from a recent California case. In 1978, a mother and her three children–two sons and a daughter–acquired a piece of real estate in Los Angeles. There were a number of title changes made to the property over the years. According to a 1986 deed, ownership was divided as follows: a one-third interest belonged to a revocable trust established by the mother, a one-third interest belonged to the daughter, and the final one-third interest belonged to one of the sons (who is the defendant in the lawsuit discussed below). In 2002, the daughter effectively transferred her one-third interest to her mother’s trust.

Published on: November 7, 2016

Can I Forgive a Debt in My Will?

by Scott C. Soady

When you name someone as a beneficiary of your last will and testament, you are effectively making a gift to that person (conditional on your death). A testamentary gift can take the form of cash, property, or even forgiveness of an outstanding debt. For example, if you loaned your child $10,000 during your lifetime, you may include a clause in your will canceling the loan, thereby absolving her of any legal duty to repay your estate.

Sisters Continue Lengthy Fight Over Father’s Forgiveness of Business Loan

California law defines a gift as “a transfer of personal property, made voluntarily, and without consideration.” If you plan to forgive a debt as part of your estate plan, it is important to do so expressly in writing. California does not recognize “verbal” gifts “unless there is an actual or symbolical delivery of the thing to the donee.”

Published on: November 5, 2016

Is it a Bad Idea to Write My Own Will?

by Scott C. Soady

Some people decide to write their own last will and testament without the assistance of an estate planning lawyer. While such wills are generally valid, provided they comply with the requirements of California law, there is always the risk that ambiguity in a will drafted by a non-attorney may lead to misunderstandings. Such misunderstandings can lead to litigation, which largely defeats the purpose of having a will in the first place.

Handwritten Will Leads to Lawsuit Over Woman’s Intentions

A recent South Dakota case illustrates the types of problems that may arise from self-drafted wills. The will in this case was written by a woman who was serving a jail term at a South Dakota women’s prison. The will was “holographic,” meaning it was handwritten by the woman. Holographic wills are considered valid in most states provided they are signed and in the testator’s own handwriting.

Published on: November 4, 2016

Who Can Bring a Wrongful Death Lawsuit?

by Scott C. Soady

California allows the spouse or heirs of a deceased individual to file a wrongful death lawsuit against anyone whose negligence caused the individual’s death. In many cases the personal representative or executor of the estate brings a wrongful death claim on behalf of the persons entitled to recover. If successful, wrongful death claimants may recover losses attributed to the estate, such as the decedent’s medical bills and funeral costs, as well as economic and non-economic losses suffered by the individual heirs.

Utah Court Rules Executor May Sue Herself for Wrongful Death

While most wrongful death lawsuits involve third parties unrelated to the estate or the decedent, the Utah Supreme Court recently examined an unusual case where the executor of an estate filed a wrongful death claim against herself. This may sound illogical, but the court said the case could proceed.

Published on: October 28, 2016

Does a “No Contest” Clause Prevent Someone From Claiming a Trust is Actually Valid?

by Scott C. Soady

Many wills and trusts contain a “no-contest” clause designed to discourage unnecessary litigation among family members after a person’s death. Basically, a no-contest clause disinherits anyone who files a lawsuit subsequently challenging the validity of the will or trust in court. But a recent San Diego case offered an unique spin on this legal principle: What happens when someone files a lawsuit claiming a trust is valid, notwithstanding the contrary claims of the trustee?

Court Revives Son’s Claim Against Mother Over Grandmother’s Trust

The litigants in this case are a mother and son. The dispute is over the terms of a revocable living trust established by the mother’s mother (i.e., the son’s grandmother). The grandmother originally created the trust in 1990. She purportedly signed two amendments to the trust, the first in 1999 and the second in 2013, several months before her death.

Published on: October 27, 2016

Can “Undue Influence” Lead to a Conservatorship?

by Scott C. Soady

A conservatorship is a legal last resort for someone who is unable to properly provide for his or her personal needs or manage his or her finances. With proper estate planning, a person can anticipate such contingencies by signing a power of attorney or even creating a trust. Still, there may be cases in which a court determines such documents are invalid due to a person’s deteriorated mental state or the undue influence of others.

Court Rejects Stepdaughter’s Petition for Conservatorship Over 101-Year-Old Stepfather

A recent case from here in San Diego illustrates the problems that can arise when dealing with elderly relatives and estate planning. This case is just an example and should not be viewed as a definitive statement of California law on estate planning or conservatorships.

Published on: October 23, 2016

How Unexpected Events Can Affect Your Estate Plan

by Scott C. Soady

You should never procrastinate when it comes to estate planning. If you are thinking about making a will or trust—or amending an existing document—you should speak with a San Diego estate planning attorney as soon as possible. After all, you never know what sudden or unexpected event may leave you unable to put your estate plan into action.

Divorce, Death Prevents Funding of New Trust

A recent case from here in San Diego offers a cautionary example. A husband and wife established a joint revocable trust. Some time later, the couple began divorce proceedings. The wife hired an estate planning attorney to assist her in revoking the joint trust and establishing her own trust. She wanted to ensure her 50% interest in the couple’s community property would go to her heirs.

Published on: October 22, 2016

What Happens When an Agent Abuses a Power of Attorney?

by Scott C. Soady

A power of attorney is a document where you give an agent the authority to act on your behalf with respect to property. An agent (also known as an “attorney-in-fact”) has a duty under California law to “observe the standard of care that would be observed by a prudent person dealing with the property of another.” This means that the agent may be legally liable if he or she mismanages or squanders your property.

Former Agent Ordered to Compensate Principal Over Uncollected Rent

A recent California appeals court decision illustrates how an agent may exceed the authority granted under a power of attorney. This case is only an example and should not be treated as a definitive statement of California law on this subject.

Published on: October 21, 2016

How One Word Can Affect Your Estate Plan

by Scott C. Soady

In estate planning a single word can make all the difference. Your will or trust is designed to express your wishes regarding your property. In the event of a legal dispute, a judge will attempt to strictly enforce the terms of your estate planning documents as written.

Court Rules “Trustee” Means Husband and Wife Acting Together

Here is a recent example of how one word can change the meaning of a trust. This is a case from Alameda County and is not considered binding precedent in the rest of California, but it still offers a useful illustration of how courts interpret an estate planning document.

Published on: October 20, 2016

How a Conservatorship Can Protect Your Assets

by Scott C. Soady

A conservatorship is a court-ordered guardian who takes charge of the financial or personal affairs of an individual if he or she is unable to care for him or herself. A conservatorship is often necessary when a disabled adult (called a “conservatee”) does not have a proper estate plan—i.e., he or she has not signed a power of attorney designating an agent to act on his or her behalf. In some cases, a California court will name a “public guardian” to serve as conservator if nobody else is qualified and available.

Court Sides With Conservator Over Lender in Property Sale Dispute

A critical function of a conservator or agent is protecting the assets of the disabled adult. Here is an illustration from a recent California case. This is only an example and should not be construed as a complete statement of California law on the subject.