●    Disagreements over how property and assets in a living trust are distributed

●    Claims of wrongdoing in making or changing a will or living trust, such as undue influence that led to a spouse or child being disinherited

●    Claims that the trustee breached his or her legal obligations (fiduciary duties) to act in the beneficiaries’ best interest, such as by being careless or disloyal

●    Disagreements over improper trust administration of debts

●    Disputes over inheritance, including will contests

These probate, estate, or trust disputes carry the potential to permanently jeopardize family ties, but mediation offers the opportunity to reach a peaceful agreement.  It’s a given that everyone will have their differences, and mediation takes into consideration everyone’s goals to find solutions that can be mutually accepted.  Not only is probate and trust mediation a good alternative because of family concerns, but it almost always faster and less expensive than having a judge decide the issue. 

Keep in mind that the mediator is not your lawyer.  In other words, the mediator doesn’t represent you and can’t give you legal advice, which is why parties generally have their own attorneys.  Preparing for mediation is critical, and when representing you, San Diego Law Firm will always work to strengthen your legal position and your bargaining power. 

We understand the stresses you’re under, especially if you’ve recently lost a loved one, and we’re here to help with the legal challenges.  As experienced wills and trusts attorneys, we’ll work to maximize your options and give you the advice you need during mediation to make informed decisions.  We’ll also prepare or carefully review any mediated agreement and ensure it’s properly handled so it becomes a binding court judgment. Contact San Diego Law Firm’s skilled trust and probate lawyers at (619) 794-0243.

Requirements for Trustee Removal

California probate law says that a trustee can be removed for reasons specified in the trust document, or by the California Superior Court acting on its own, or by a “petition” (formal legal request) filed by a person named in the trust as a “beneficiary” to inherit some or all of the trust’s personal property, money, and/or real estate.   Some of the common reasons a trustee is removed are: 

●             The trustee is not following the exact directions of the trust;

●             The trustee is insolvent (broke) or otherwise unfit to administer the trust;

●             There is more than one trustee and they are not cooperating with each other, in a way that hurts the administration of the trust;

●             The trustee doesn’t do the administration in the way the law requires, or has refused to take on the job;

●             The trustee is being overpaid, when taking into account the value of the trust assets and the trustee’s responsibilities.

Trustee Responsibilities

California probate law lists things the trustee must do when managing and administering a trust. The trustee must give all the beneficiaries an annual accounting, which is a report on the assets, debts, and amounts received and spent by the trust.  The trustee must also give the beneficiaries a report with details of the terms of the trust and a report of the trustee’s actions in administering the trust.  The trustee must act prudently when investing living trust funds; they cannot be put into risky investments.

Often, a beneficiary decides to remove a trustee because the trustee is either not doing what the living trust document requires, or is not providing complete information to the beneficiary about the trust property, how trust property was invested, and/or how much and when the trustee was paid by the trust.  If the trustee and beneficiary are no longer communicating well, or are not in agreement on how the trust property should be administered, the next step for the beneficiary is to seek legal advice and help from an experienced probate attorney.

Petition for Removal

If the trustee and a beneficiary cannot agree on how the trust is to be managed and administered, that beneficiary can ask the court to remove the trustee, which means order the trustee to give up all control of the trust property.  This is done by hiring an experienced probate attorney to file a court petition requesting that the trustee removed.  The petition is accompanied by a signed declaration from the beneficiary stating the facts showing the reasons why the trustee should be removed. If the court grants the petition, it will remove the trustee and appoint another person as the new trustee.

California probate law concerning trustee removal is complicated and not easy to understand. If you are a beneficiary of a trust, and are concerned that the trustee may be mismanaging trust property, our experienced will, trust, and probate attorneys can advise you on your options.  If you decide the trustee should be removed, we can handle all the court paperwork and hearings.  Please contact San Diego Law Firm today at (619) 794-0243 to schedule an appointment.  We look forward to helping you.

Dying Without a Valid Will (Intestacy)                                 

If you don’t leave behind any instructions for how you want your property divided (such as with a valid will or living trust), then California law steps in so that the probate court can distribute your property to your heirs.  A person who dies without a valid will is said to have died “intestate.”  In these situations, California’s intestacy laws apply.  These laws decide which family members will inherit by creating a hierarchy.  Sometimes things get more complicated, but here are the basics:

      ●    If You’re Survived by a Spouse or Domestic Partner

Your surviving spouse or domestic partner will receive your full share of “community property” (your shared marital property as determined by California’s community property laws).  You might also have your own “separate property” (usually this is property you owned before marriage or inherited while married).  Assuming that your separate property never turned into community property, then your spouse or domestic partner will get a share of those assets.  He or she will either get all, half, or a third of your separate property depending on whether you have certain relatives.  Those relatives (usually children) would receive the rest. 

      ●    If There’s No Spouse or Domestic Partner

If you had children (or a grandchild from a child who died), then they’ll inherit your estate.  If you didn’t have any children, then the hierarchy goes from parents, to siblings, to grandparents, to aunts and uncles, to cousins, and then more distant family members.  Keep in mind that once there’s someone eligible to inherit, the probate court won’t give property to anyone who’s further down on the hierarchy.  For example, if you have children, your parents will not inherit anything from you under the intestacy system.

What the Intestacy Rules Leave Out

When there’s no will or trust, the rules for distributing your property ignore many things that you probably think are very important.  For example:

      ●    Strained Family Relationships - Maybe someone who you wouldn’t want to inherit from you will under California’s intestacy rules.

      ●    Protecting Adult Children (From Themselves) - You may have a child who’s over 18, but who’s likely to seriously mismanage his or her inheritance, or lose it to creditors.  To avoid this situation, you’d probably want to establish a trust that can include safeguards.

      ●    Some People & Organizations Can Never Inherit From You - Even if you’re in a long-term relationship, your significant other won’t be eligible to inherit from you if you didn’t marry or enter into a domestic partnership.  Your friends, charities, and other organizations that you may want to leave a gift for also won’t receive anything. 

      ●    Leaving Loved Ones Out, Even If They’re Related - Your family member may not get to share in the inheritance, even if you would have wanted them to.  California’s intestacy system is a hierarchy.  Certain relatives (like a spouse or children) are higher up on the hierarchy than others (like parents, aunts, uncles, or cousins).  Under this system, your property is meant to be inherited by the relatives who are as high up on the hierarchy as possible.  As soon as there’s someone who can inherit, relatives who are lower on the list are shut out.

Create Your Own Plan Instead

If you create a will or trust, then you can usually decide who gets what and how.  You’ll also be able to control how much they get.  For example, even if you want your children to receive most of your property, you can still make gifts to a niece, friend, or others. 

After you’ve made your will and trust, watch out for pitfalls that can lead to intestacy (or partial intestacy).  In part, this means making sure all your property is covered by a valid estate plan.  If you get new assets after creating your will and living trust, then let us know.  For the same reason, any changes to your will or living trust need to be made carefully. 

We’ll advise you on your best options, so you can learn about the benefits of estate planning.  Remember, avoiding probate is not your only goal.  Estate planning is about taking control, while also finding the best way to minimize any taxes.  Get essential help with your will and living trust by contacting San Diego Law Firm’s experienced estate planning attorneys at (619) 794-0243.

For many, accountings are provided on time and with no need for objection.  For others, a series of challenges arise that have to be dealt with quickly before time runs out.  Beneficiaries sometimes find themselves in one or more of the following situations:

- The trustee or executor (or other fiduciary) doesn’t provide the required accounting and refuses to do so

- An account is made, but it turns out to be incomplete or incorrect

- You haven’t received required distributions from your share of the inheritance

- In managing the trust property or estate, you believe the trustee or executor may have spent or invested money carelessly or even wastefully

If you have similar concerns, we’ll work to quickly resolve the issue, and when needed we’ll petition the court for an order directing the trustee or other administrator to provide the accounting, or object to the accounting that’s been given.  Keep in mind that deadlines apply to your challenge of an accounting.  If you’re serving as a trustee, executor, or other fiduciary, we can prepare any accountings you’ll be required to submit.  Even if an accounting is waived, it’s often wise for executors and trustees to create an accounting that records all transactions.  No matter what the issue, we know how important it is to handle these matters tactfully and to strive to maintain harmony in your family after a loved one has passed away.  At the same time, it’s important to make sure your rights as a beneficiary are dealt with fairly, and to do so we can begin an accounting action or take any other necessary steps.  If you are serving as a trustee, executor, administrator, or other fiduciary, we’ll provide you with the guidance you need to properly carry out your many other duties in opening a probate or administering a living trust.  Act to protect your inheritance by contacting San Diego Law Firm’s experienced wills, trusts, and probate attorneys at (619) 794-0243.

What are valid reasons for challenging a will or trust?  Hollywood’s favorite example is the deathbed will, where – in a dramatic portrayal – the will is signed just moments before passing away, disinheriting everyone except for the person who callously pressured the testator into signing.  If there were a will contest here, what would the empty handed family members allege as grounds for the challenge?   One issue is capacity, because the deceased may not have had the level of capacity legally needed to change or create the will if the testator’s mental competence had grown too weak in his or her final moments.  Not only that, but the benefited person may have exercised duress or undue influence over the testator.  Other common reasons to contest a will include forgery, fraud, the existence of a more recent will, omitted children or spouses, and errors in executing the will.  If under the facts the legal requirements are met for any of these grounds, then the will or part of it is invalidated and property will instead be distributed according to California’s laws on inheritance, or possibly according to another will or trust.

The new California law on no contest clauses will be applied starting January 1, 2010, but it will affect wills that became irrevocable as of January 1, 2001 (for example, if a person dies on or after this date, the will becomes irrevocable at that point).  The law lists three categories of actions that are considered “will contests,” and anything else will not trigger the no contest clause and its threat of forfeiture.  If the challenger wins the will contest, then the no contest provision has no consequence because the will is ignored.  If the challenger loses, then typically the no contest clause will be enforced unless there was “probable cause” to dispute the will. 

It may be time to create or update your will and living trust to reflect this new law as well as recent case law.  We’ll also plan on the most effective way to include a no contest clause when you make amendments to these documents, and discuss the pros and cons of these clauses so you can decide on whether to include a no contest clause in your will or trust.  If you think you’ll be involved in a will contest, we’ll assess whether you’re a proper party to bring the action, and if you have possible grounds for a contest.  Whenever possible we’ll seek resolution without resorting to litigation.  Also keep in mind that a will contest must be brought within certain time limits so act soon.  Contact San Diego Law Firm’s experienced attorneys at (619) 794-0243 for help with any aspect of the probate and inheritance process.

To make or change a will, California law sets a threshold for mental capacity, requiring you to be of “sound mind.”  The level of capacity required here is different than it is for other legal matters, and generally means that you understand who your family is, what property you own, and recognize that the actions you’re taking are to create or change your will.  A person can be considered to lack capacity for many different reasons, including mental disorders if it affected the individual’s disposition of property, or even for temporary reasons like intoxication.  Even if a person has displayed a few isolated acts of questionable mental capacity, this doesn’t necessarily mean that at the time of making or changing the will, a person was of unsound mind, which is what’s required to prove a will is invalid on this basis.  That’s why the defense in the Brooke Astor case took great care in trying to establish that even though the prosecution’s witnesses testified to incidents demonstrating Astor’s possibly diminished mental capacity, at the moments at issue in the case, Astor knew exactly what she was doing. 

You may not find the need to change your will 38 times as did Brooke Astor, but it’s essential to have an up-to-date estate plan.  One of the main reasons behind having a will and living trust is to provide for your family according to your wishes when you’re gone.  Your personal and financial situation is bound to change, and so these documents need to be reviewed regularly to account for these changes.  Here are a few events or reasons that often trigger the need to update your will or living trust:

- Your marital status has changed, or you are unmarried but have a partner who you want to provide for

- You’ve recently moved to California, but had created a will or trust under another state’s law

- There’s been a significant change in your financial situation

- You no longer own assets specifically gifted in your will or trust

- You’ve had a child

- The person you elected to serve as your estate’s representative is no longer available

- You’ve decided to change gifts you made in a prior will or trust, or want to leave property to additional people

- There have been changes in income, estate, or gift tax laws affecting your plan

To amend your will, please Do Not simply take a pen to it and cross out what you want to change, while writing in new provisions in the margins.  If you do, you may be creating a legal nightmare later on for your kids or others who stand to inherit from you.  Many times, this can revoke what you’ve crossed out, yet what you’ve added in may not be a valid amendment, which could open the door to arguments during probate to try to at least bring back what you crossed out.  Valid changes to your will have to be written and executed just as your original will was.  If you need to make substantial changes to your will, then it may be easier to cancel your existing will through proper revocation methods and create a new one.  Make sure your will and living trust haven’t lost their value by becoming out-of-date.  Contact San Diego Law Firm’s wills and trusts attorneys at (619) 794-0243.

Recently, much has been made about the many deals struck by the executors of Michael Jackson’s estate.  The Los Angeles Times reports on agreements for a movie, television special, tribute concert, merchandising, a high end clothing line, “digital apparel,” and a traveling memorabilia exhibition.  Just as they should have, the executors (who are also the trustees of Jackson’s trust), worked fast to secure these deals while demand soared high for anything related to the King of Pop.  This is because personal representatives (and trustees) have the duty to invest and manage assets.  For example, when there’s a large amount of cash left behind, the executor may need to invest the money as permitted by the will and California law to prevent losing income that can be earned for the estate.  Otherwise, the executor could be liable for the loss.                                           

Besides investing money, personal representatives also need to make the most out of the assets already in the estate, sometimes this requires selling property or renting out empty real estate.  Executors and administrators also need to find and collect all of the deceased’s assets, such as personal items, life insurance, partnership interests, and bank accounts.  Known creditors must be given notice and legitimate debts need to be paid off, so you have to make sure the estate will have enough money to pay for bills, costs, and expenses.  Federal and California taxes must be paid, and as the personal representative, you’re potentially liable for the value of distributed assets if there’s a deficiency.  Don’t assume that only fraudulent transactions and lying will get a personal representative into trouble, because at times mistakes can also lead to personal liability.

The bottom line is that you are a fiduciary, and everything a personal representative does needs to be in the best interest of the estate, which also means you have to be careful not to favor individual beneficiaries.  As assets are managed and distributed, we’ll consult with you about investments, handle title transfers, prepare and file required documents, work to resolve disputes, advise you on potential legal issues, and appear on your behalf in court.  Make sure you’re handling your responsibilities properly, speak with San Diego Law Firm’s knowledgeable probate attorneys at (619) 794-0243.

You can transfer ownership of your business gradually, not only helping to keep things running smoothly since you’ll remain in control of the business, but also reducing tax liability.  Richard C. Morais of Forbes Magazine proposes that you start making transfers now, to take advantage of depressed values during the recession.  You’ll then be able to make transfers of a larger percentage of your business while staying within the limits of annual gift tax exclusions, all because for now, the business may be valued lower.

Plan now, because you don’t want to put your family in a position where they’ll have to sell the business when you’re gone, either because they can’t run it, or can’t afford the taxes.  If it’s best to sell the business, then the sale will likely be more profitable if you sell it yourself while the business has goodwill.  We’ll strategize and help you create a personalized and comprehensive business succession plan designed to meet your needs and that of your family.  Learn more from our attorneys, and benefit from our expertise in business, wills, trusts, and succession planning.  Contact San Diego Law Firm at (619) 794-0253.

Besides preventing disputes, you can cut costs by shopping around as you plan out burial and funeral wishes. Just as with the rest of an estate plan (i.e. your will and living trust), preparing burial instructions is an important step toward minimizing conflict and helping to ensure your plans are carried out. For help in meeting these goals, contact our experienced will and trust attorneys at San Diego Law Firm, (619) 794-0243.

When it comes to your own trust, your concerns are probably a little different than Marlon Brando’s. Even so, the success of your plans can depend on how the trust is managed.

With years of experience in creating living trusts, we can create a plan that provides the trustee with the necessary guidance to safeguard your intent. We’ll also help you consider the pros and cons when choosing a trustworthy person who understands how you’ll want your property managed. Do your part to ensure you provide for your loved ones according to your wishes. Contact our San Diego Law Firm trust attorneys at (619) 794-0243.