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8 Steps To Avoid Estate Litigation

Posted on | November 30, 2009 | No Comments

An article by the US News and World Report gives “8 Tips to Avoid Nasty Estate Surprises.”  I agree with most of the points, and add my critique after each tip below:

1. Get a good lawyer. I would add that your lawyer should concentrate exclusively in this area.
2. Pick the right executor and trustees. The right trustee will be solid and will react neutrally to avoid disputes over the estate’s property.
3. Talk about it now. This seems obvious, but most people will not let their intentions be known ahead of time. Unfair surprise is one surefire way to start a contest.
4. Know state laws. In California, as the Tax Professor adds, probate can be avoided entirely through the use of a trust.
5. Make your intentions known early and often. Making repeated modifications to the will or trust will make it harder to invalidate later.
6. Make sure title to your assets is clear. Circumventing the estate distribution by retitling assets later in life is another way to encourage litigation.
7. Consider including a “no contest” clause. Then give the beneficiary an amount that they would rather not sacrifice if they lost the contest.
8. Don’t try to manage your estate from the grave. Although I am not sure that I entirely agree with this one, in theory giving discretion to your beneficiaries may stop them from fighting over items to which they are personally attached. I agree that not every item need be listed in the instrument, but sometimes a person who writes a will or trust can avoid disputes ahead of time by simply making the right decision.

Category: Probate Litigation
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Legal Fights Over Wills - No Contest Clauses Hit the Public Spotlight

Posted on | October 31, 2009 | No Comments

With the death of Michael Jackson and other celebrities, no contest clauses have come to the fore of the public’s attention. No contest clauses are an attempt to keep brothers and sisters, aunts and uncles, and everyone else from suing in probate court every time someone writes an unfair will. There are quite a few benefits to discouraging litigation – as well as some detriment where there is a legitimate cause for concern. In fact, the California law on the subject is complex and will change in 2010. As it stands now, there are multiple statutory exceptions to no-contest clauses that everyone must follow. It is even possible to set aside a no-contest clause if the contest is brought with “reasonable” cause on the grounds of forgery, revocation, or an action to establish the invalidity of any transfer. So at least for now, would-be litigants can take heart that there may be a remedy when a relative makes a move to steal through influence or lack of capacity, as long as there is a solid reason to pursue it.

Category: Estate Planning - Generally
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What is an Advance Medical Directive or Living Will?

Posted on | August 31, 2009 | No Comments

A recent Wall Street Journal article discusses the importance of having an advance health care directive in place should you become incapacitated. Though the article refers to an “advance medical directive,” in California it is called an advance health care directive. These directives give doctors direction, in your own words, should you not be able to speak them. Yet less than a 1/3 of Americans have them in place, despite the fact that most Americans will need them at some point. This saves your family members from making agonizing choices that may place them at odds with each other in the midst of a crisis. For more advice on advance medical directives, you can read the article here.

Category: Uncategorized
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10 Odd Bequests; Or How to Disinherit With Style

Posted on | July 31, 2009 | No Comments

The law regarding wills and trusts has changed greatly over the years. New law makes it difficult to precondition a devise by will or trust on an act that would violate public policy. For instance, California Probate Code § 710 prohibits imposing a condition or restraint on marriages under certain circumstances. In other words, you can’t place a restriction that discourages your son or daughter from marrying a certain person or encouraging their divorce. Likewise, “[i]f a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the condition is void.” California Probate Code § 709. In other words, be careful what you wish for in a will or trust.

The link at the end of this paragraph gives ten examples of odd bequests that may or may not be enforceable in a court of law – but are entertaining nonetheless. Consider the man who preconditioned his wife’s receipt of £330,000 by devising that she could only receive it if she smoked 5 cigars a day (she refused to allow him to smoke). Or the woman who gave her husband $2.00 provided he spend half the money on rope to hang himself. Check out the full list here.

Category: Wills and Trusts
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California Probate Guardianships - No Contest Clauses in a Will or Trust May Not Apply to Minors

Posted on | October 9, 2008 | No Comments

A minor who nominated his mother as guardian ad litem (See What is a California Guardianship?) does not voluntarily participate in a probate proceeding triggering a no contest clause provision in a will or trust. Safai v. Safai, 164 Cal.App.4th 233 (2008).

“The Trust (What is a Revocable Living Trust?) and the will both included ‘no contest’ clauses, with the Trust’s clause stating, as follows: ‘Any beneficiary who directly or indirectly voluntarily participates in any proceeding or action in which such person seeks to void, nullify, or set aside (1) any provision of this instrument; (2) any provision of the Settlor’s will; or (3) any amendment of this instrument or codicil of the Settlor’s will shall be considered to have predeceased the execution of this instrument without surviving descendants[.] The provisions of this paragraph shall not apply to any disclaimer by any person of any benefit under this instrument. The Trustee is authorized to defend any contest or other attack of any nature on this instrument or any of its provisions.’”

The court reasoned that the settlor did not intend “to disinherit his only son in the event that [the son] contested the Trust while still a minor,” even though a “guardian or guardian ad litem is not a party to the action; instead, he or she is a representative of record of a party who lacks capacity to sue.” Thanks to Professor Beyer for bringing this case to my attention.

Category: Probate, Probate Litigation, Trusts, Will Contests, Wills, Wills and Trusts
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Heath Ledger’s Daughter Will Inherit His Entire Estate

Posted on | October 2, 2008 | No Comments

Heath Ledger’s daughter Matilda will apparently inherit his entire $16.3 million estate. The actor executed a will (What Are the Advantages of a Will?) that left nothing to his daughter, but left everything to his parents and three sisters. Those family members have allegedly gifted those distributions to Matilda.

Category: Current Events, Estate Planning of the Rich and Famous, Probate, Probate Litigation
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Will I Inherit from My Husband or Parent If I Kill Them (Part II)? The Answer Could be Yes

Posted on | September 26, 2008 | No Comments

A Wisconsin court has ruled that giving a loaded shotgun to a suicidal parent is not the proximate cause of the parent’s death (although it is the actual or but-for cause), so that a wife and daughter of the man may inherit his $500,000 estate. The man was terminally ill with lymphoma and his wife and daughter took him directly from the hospital (where he had only a one day pass to leave) to a cabin, gave him the loaded shotgun and left him.

The Wisconsin Slayer Statute (Read here about California’s Slayer Statute – Will I Inherit from My Parents if I Kill Them? Part I) prohibits those who “intentionally kill” another from inheriting from the person. California’s statute has basically the same language, and it is not clear what the result would be on the same facts here. The wife and daughter were embattled in probate litigation (See What is Probate?), and the case will likely be heard by the Wisconsin Supreme Court. You can read the full story here.

Category: Current Events, Probate, Probate Litigation, San Diego Estate Planning, Will Contests, Wills
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Tax Shelters: Offshore Asset Protection Trusts Become a Political Hot Button

Posted on | September 25, 2008 | No Comments

Barack Obama has aired a new ad accusing John McCain of favoring offshore asset protection trusts that operate as tax shelters in Bermuda. McCain is alleged to have taken $50,000 while on a lobbyist supported vacation from those who have benefited from the trusts. You can see the ad here, courtesy of the Huffington Post.

For more on the current state of asset protection trusts, read:


Eight Signs Your California Tax Shelter or Offshore Asset Protection Trust Is Actually Tax Evasion


Criminal Tax Evasion - Trouble Ahead for San Diego Asset Protection Lawyers and Attorneys?


Offshore Trusts and Asset Protection Trusts Are Among 10 Things Millionaires Won’t Tell You About

Category: Asset Protection Trusts, San Diego Estate Planning, Tax, Trusts
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How Much Does Probate Cost In California?

Posted on | September 23, 2008 | No Comments

Probate is an expensive proposition in California. The cost will vary depending upon the size of the estate, but one thing is guaranteed – your estate will pay much more than the cost of a living trust. San Diego probate fees include the cost of filing, notice of publication in the San Diego Union Tribune, real property appraisal by the probate referee, a probate bond, attorney’s fees, and executor’s fees. The TLD legal blog estimates that the probate of a $500,000 estate will generate $28,035 in costs and fees.

Category: Uncategorized
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Who May Write a Will? Requirements to Make a California Will

Posted on | September 21, 2008 | No Comments

Who may write a will in San Diego? Any person that is eighteen years of age and of sound mind may write a will (But should you? See Will Advantages; and Disadvantages of a Will). A person is of sound mind if they understand the rights, risks, and consequences of the testamentary act, the property they own, and their living descendents.

A person is not mentally competent if they lack the mental capacity to understand the nature of the testamentary act, understand and recollect the nature and situation of the individual’s property, or remember and understand the individual’s relations to living descendants, spouse, and parents.

In addition, a person may lack capacity to write a will if they have a deficit in mental function, such as alertness, information or thought processing. Of course, a court will not probate (See What is Probate?) a will where the person is insane, defined as a false conception of reality, a belief in supposed facts against all evidence and probability.

Category: Estate Planning - Generally, Probate, Probate Litigation, San Diego Estate Planning, Will Contests, Wills, Wills and Trusts
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