Articles Posted in Wills & Trusts

On March 15, 2016, Judges of the Probate Court for Los Angeles County discussed the current state of the Probate Court and addressed issues and concerns affecting the Court, the courtroom transitions, modernizing the system to benefit litigants, and  other questions submitted by Beverly Hills Bar Association Member from the Trust and Estates Section members. Judges from the Los Angeles Superior Court (Probate Division) expected in attendance were: Hon. Maria E. Stratton (Department 5), Hon. William Barry (Department 67), Hon. David J. Cowan (Department 79), Hon. Clifford L. Klein (Department 9), Hon. Brenda Penny (Department 99); and Hon. Lesley C. Green (Department 11).

The Timothy Whitehouse Award was be presented to Bet Tzedek for their outstanding contribution to the community with legal services provided at zero cost to low-income individuals.

Overall a very informative presentation in a pleasant lunch format that was attended by firm partner and trust litigator, Yasha Bronshteyn, at Lawry’s of Beverly Hills.

Firm partner, Yasha Bronshteyn, attended A Discussion of Estate of Duke which was presented on January 19, 2016, at Lawry’s in Beverly Hills, by the Beverly Hills Bar Association-Trust & Wills Section.   

The presentation focused and discussed an unanimous decision, In re the Estate of Duke-the recent California Supreme Court case which held that extrinsic evidence can be used to reform a Will which contains no ambiguity. This probate case will have an important impact on the practice of probate law in California.

The California Supreme Court decision in the case on wills granted review to reconsider the historical rule that extrinsic evidence is inadmissible to reform an unambiguous will. The Supreme Court has concluded that the categorical bar on reformation of wills (dating back to common law and codified in statute by the enactment of the California Probate Code’s various legal requirements) is not justified.  The Supreme Court holds that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.

Looking forward to the presentation by the Trust & Estates Section of the Orange County Bar Association on October 6, 2015, at 5:30 P.M. at  Grand Catered Events • 300 S. Flower St., Orange 92868.  Moderators for the event will include Judge David L. Belz, Orange County Superior Court. Topics to include Automatic Temporary Restraining Orders on filing for Dissolution • Conflicts/Ethics • Estate Planning for the Divorcing Spouse • Transmutation • Pre- and Post-Nuptial Agreements • Marriage/Divorce under Conservatorship • Litigating Marriage/ Divorce • PC 3080/Family Law Property Settlement •  and Custody/Guardianship.

We are here to help you and your loved ones.  To discuss your needs and discover your options, consult the Orange County incapacity, conservatorship,  and estate planning attorneys at Ginzburg & Bronshteyn, LLP.  At Ginzburg & Bronshteyn, LLP we are dedicated to providing efficient, effective, and affordable solutions to clients involved in conservatorship cases, trust litigation, trust and estate disputes, as well as other types of family law issues. To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP.  We serve clients in Orange County, Los Angeles, Ventura County, and throughout Southern and Northern California including Agoura Hills, Anaheim, Beverly Hills, Calabasas, Camarillo, Costa Mesa, Encino, Fullerton, Hidden Hills, Laguna, Lake Forest Irvine, Lake Sherwood, Mission Viejo, Newport Beach, Oxnard, Pasadena, San Francisco,  Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, Ventura, West Los Angeles, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process.   We are experienced in obtaining and defending against conservatorships. Contact us by calling (310) 914-3222 in Los Angeles, or (818) 787-1011 in Westlake Village, or by using our online contact form.

Once again Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. If you are involved in a conflict concerning a will, trust or estate, our experienced Los Angeles conservatorship attorneys are here to help clients in Newport Beach, Santa Monica, Thousand Oaks, Ventura County, Orange County and throughout Southern California defend their rights under the law. The baby boomer population is ageing while having acquired significant wealth – ff the core of a dispute is the validity of a will, codicil, trust or trust amendment please contact our skilled attorneys for personalized legal services and aggressive representation.  You may contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222, (714) 280-0601,  or (818) 787-1011 or by using our online contact form.

At Ginzburg & Bronshteyn, LLP we are dedicated to providing efficient, effective, and affordable solutions to clients involved in conservatorship cases, trust and estate disputes, as well as other types of family law issues. We are here to help you and your loved ones. To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP.

Our firm also handles disputes over the decedent’s intent. For example, when a person dies, they might have named only some, but not all of his or her children in a will. Most likely, the unnamed children would contest the validity of the will, and estate litigation may ensue to determine whether the decedent intended to omit certain children or whether the omission was unintentional. This is but one example of a dispute that can arise in the execution of an estate plan. If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented.

Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. Our experienced Los Angeles conservatorship attorneys are here to help

On March 24, 2015, the panel of Probate Judges discussed the current state of Probate Court in Los Angeles County and addressed questions and concerns submitted by members of the Beverly Hills Bar Association. Fortunately six probate judges from the Los Angeles Superior Court – Central District were able to attend the lunch at Lawry’s in Beverly Hills.  This program was presented by the Trust and Wills Section of the Beverly Hills Bar Association.

The Judges present were:

Judge David J. Cowan (Department 79)

Estate of Stoker – filed March 3, 2011, Second District, Div. Six. Cite as 2011 S.O.S. 1274

This case involves two issues under California Law that are seen and dealt with in the Probate Code.

One issue is the required “Notification by Trustee” to all beneficiaries and heirs-at-law upon a trust [or portion thereof] becoming irrevocable [see California Probate Code Section 16061.7].

A brief summary of the recent decision the the California Court of Appeal- In the Third Appellant District Case No. C068747

Drake v. Pinkham filed May 28, 2013, publication ordered June 21, 2013,

Beneficiary’s action to invalidate trust amendments based on lack of capacity and undue influence was barred by laches where the facts alleged by beneficiary were known to her five years before she filed the action, and the delay was necessarily prejudicial because the settlor had died.

A family’s trust dispute got new life when the California Supreme Court reversed an an appellate court ruling, and determined that a group of contingent beneficiaries did, as a matter of law, have standing to sue the trustee of a family trust for breaching his duties by making a large, risky investment in a company that the trustee co-owned. In deciding Estate of Giraldin, the court concluded that, under California law, because the trustee’s actions could harm the contingent beneficiaries and contravene the wishes of the deceased trustor, they had standing to sue.

In 2001, William Giraldin began considering investing $4 million, roughly 2/3 of his wealth, in a technological start-up company created by Patrick Giraldin, his son. Patrick’s twin, Tim, was also a partial owner. Soon thereafter, Bill created a new revocable trust, which essentially replaced the previous revocable trust he established in 1997, naming all of his children as contingent beneficiaries. In one key difference between the trusts, however, Tim, not Bill, served as trustee of the trust. Bill ultimately decided to make the investment, with the funds coming from the trust.

The start-up proved unsuccessful and, by the time Bill died in May 2005, his investment was largely worthless. Four of Tim’s half-siblings sued him, claiming he violated his fiduciary duties to the trust’s beneficiaries. The suit claimed that Tim’s mismanagement deprived Bill’s seven other legal children of the benefit of the trust.

The trial court ruled in favor of the four children. The court concluded that Tim acted to serve his interests, and those of the start-up, at the peril of his father and the trust.

The California Court of Appeal reversed. The court determined that Cal. Prob. Code 15800 made clear that, during Bill’s lifetime, Tim’s duties were to his father alone, not his siblings (as trust beneficiaries). During’s Bill’s lifetime, the Court of Appeal concluded, Tim’s siblings were akin to heirs named in a will, possessing no rights until Bill died and the trust became irrevocable. Thus, the siblings lacked standing to sue for his pre-May 2005 conduct as trustee.

The California Supreme Court disagreed, however. The high court agreed that the siblings could not sue based on alleged financial harm they suffered during Bill’s lifetime, and could not sue while Bill was alive, but concluded that they could assert a claim after Bill’s death, based upon harm to Bill caused by Tim’s actions during Bill’s lifetime. “Because a trustee’s breach of the fiduciary duty owed to the settlor can substantially harm the beneficiaries by reducing the trust’s value against the settlor’s wishes, we conclude the beneficiaries do have standing to sue for a breach of that duty after the settlor has died,” the court wrote.

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A “no contest” clause is an item inserted into many wills and/or trusts to reduce the likelihood that a beneficiary will mount a court challenge to the document. The California legislature modified the statute governing no contest clauses in recent years, attempting to simply the law regarding these provisions. In the process, however, the state’s new statute creates some potential traps for the unwary beneficiary.

Under California law in effect before 2010, will or trust contests were a high-stakes, all-or-nothing proposition. For example, if a woman had a will that left her estate equally to her son and daughter but, shortly before her death and during a visit from her daughter, she created a new will, with a no contest provision, leaving 75% of her assets to the daughter, and 25% to the son, then the son would face a risky dilemma if he contested the new will. If he won, the first will would govern, and he would receive one-half of his mother’s estate; lose, and the no contest clause from the second will would take effect and he would receive nothing.

Finding the penalty of total forfeiture excessively punitive, the legislature changed the law, effective 2010. The new law states that forfeiture clauses are generally not enforceable against challengers if they had probable cause for bringing the action.

Beneficiaries should remain mindful, though, that there are indirect ways to trigger a forfeiture clause, some of which are not necessarily intuitive. In a 2002 case, Estate of Gonzalez, a group of siblings offered their father’s 1992 will for probate, which contained a no contest provision. A fourth sibling, Jorge Gonzalez, submitted for probate a 1998 will. The court concluded that the 1998 will was the result of Jorge’s undue influence, that Jorge knew the will was not valid and, by offering it for probate, he effectively challenged his father’s first will, and did so without probable cause. As a result, the no contest clause within the 1992 will was enforceable and Jorge received nothing from his father’s estate.

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A California appellate court upheld the right of the children of a man’s ex-wife to receive the distributions promised to them in the man’s will and trust. In Estate of Lira, the court rejected a daughter’s argument that her father’s ex-wife’s children were disqualified from inheriting, ruling that the ex-wife’s family was related to the man when he executed his estate plan documents and, therefore, exempt from disqualification.

Oligario Lira married Mary Terrones in 1968. Lira had three children from a prior marriage, and his wife had six. Early in 2008, the wife filed for divorce. Eleven months later, with the divorce still pending, Oligario executed a will and a trust. The documents named Oligario’s three children, as well as three of Mary’s sons, as beneficiaries of his estate, and named Mary’s son, Robert Terrones, personal representative of his will and trustee of his trust. One of Mary’s grandsons, Glenn Terrones, was an attorney and prepared the documents for Oligario. The court granted the divorce early in 2010, and Oligario died five months later.

Lira’s daughter, Mary Ratcliff, petitioned for probate of her father’s estate, stating that her father died intestate, and requesting that the court appoint her to administer the estate. Two months later, Robert filed his own petition, producing the will and asking that the court name him as executor. Lira’s daughter then argued that the law disqualified the Terrones sons from receiving anything under the will or the trust because they were related to the attorney who drafted the documents. Robert countered by contending that, because he and his brothers were related to Oligario when he signed the documents, they were exempt from disqualification.

A trial court, and the California Court of Appeal, agreed with Robert. While Section 21350 of the Probate Code, which the daughter cited, generally bars anyone who is “related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, the person who drafted the instrument” from receiving a distribution under that document, Section 21351 carves an exemption for persons related to the transferor by blood or marriage.

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