NEWS AND COMMENTARY

Published on: November 7, 2016

Can I Forgive a Debt in My Will?

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 16, 2016

What Happens if My Trustee Does Not Carry Out My Wishes?

by Scott C. Soady

A revocable living trust is a document appointing a trustee to assume custody of certain assets that you designate. You can serve as your own trustee during your lifetime. Upon your death, the successor trustee you name is then required to manage or dispose of the trust property as specified in the trust instrument.

San Diego Zoo Seeks Removal of Ineffective Trustee

Unfortunately, there are cases in which a trustee may fail to carry out the trust settlor’s instructions in a timely fashion. This, in turn, can lead to extended litigation. A recent case from here in San Diego presented such a scenario. This case is only an illustration and should not be construed as a complete statement of California law.

Published on: October 14, 2016

How Does My Estate Plan Affect Community Property?

by Scott C. Soady

Estate planning for married couples in California often involves making a clear distinction between community and separate property. Community property generally refers to any asset acquired by either spouse during the course of the marriage. Under California law, when one spouse dies, half of the community property automatically goes to the surviving spouse, while the other half is distributed according to the terms of the deceased spouse’s estate plan (or if there is no applicable plan, according to California’s intestate succession laws).

Wife’s Separate Property Not “Re-Transmuted” to Community Property

Any confusion or disagreement over whether a particular asset is community property should be resolved before one spouse dies. Otherwise there may be litigation over who actually owns the asset. Here is a recent example from Orange County.