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Ed is a shareholder in the firm’s Trusts and Estates: Planning, Administration, and Litigation group. Ed’s practice focuses on estate and trust litigation, fiduciary abuse, elder financial abuse, contested trust administrations, probate, and contested conservatorships. Ed has extensive trial, arbitration, mediation, and appellate experience, and has successfully litigated a number of high-profile trust and elder financial abuse cases in Northern California.

August is national Make A Will Month, and a good time to make sure that your planning documents are in place.  Just under half of U.S. adults say that they have created a will or plan for how they would like for their estate to be handled after their death.  The Trusts and Estates attorneys at Weintraub Tobin have written frequently on this blog about the importance of having an estate plan, and about the difficulties (and even litigation) that heirs can face when a will is not in place.
Continue Reading Resources for National Make a Will Month (August)

EdCThe California Court of Appeal for the Sixth Appellate District issued a ruling Tuesday in Lintz v. Lintz, 2014 Cal. App. LEXIS 27 (6th Dist. January 14, 2014) adopting the reasoning of the Second Appellate District regarding the standard for legal capacity to execute a trust instrument (as announced by the Second Appellate District in

EdCTrust beneficiaries and litigators beware: the recent case of Drake V. Pinkham ((2013) 217 Cal.App.4th 400) highlights the dangers of waiting to file a trust contest until after the settlor’s death when questions regarding the settlor’s competency arise during the settlor’s lifetime.

Typically, revocable trusts are just that – revocable. A settlor can modify or terminate his or her revocable trust up until death, presuming that he or she retains the capacity to do so. Because a competent settlor has the legal right to change his or her revocable trust up until death, a beneficiary does not usually have the right to contest the revocable trust during the settlor’s lifetime.

The limitation on a beneficiary’s ability to contest a revocable trust during the settlor’s lifetime is contained in Probate Code section 15800. Section 15800 specifically provides that the person holding the power to revoke a trust (e.g. the settlor), and not the beneficiaries, holds the rights under the trust during the time the trust is revocable and the settlor is competent.

But if Probate Code section 15800 prevents a beneficiary from contesting a revocable trust when the settlor is competent, does that mean that a settlor must be formally deemed incompetent before a beneficiary can bring a contest during a settlor’s lifetime? And what happens if a beneficiary, believing a settlor to be incompetent, waits until after the settlor’s death to bring a contest – will that contest fail as untimely?


Continue Reading In Trust Disputes Where Competency of the Settlor is an Issue, Waiting Until After the Settlor’s Death to File A Trust Contest Can be Fatal

EdCThe recent case of  Allen v. Stoddard (2012) 212 Cal.App.4th 807 has highlighted at least one pitfall regarding filing a claim against an estate. The Allen court has pointed out that Probate Code section 9353 (“Section 9353”), which imposes a deadline of 90 days in which to file a lawsuit against an estate on a rejected creditor’s claim, and Code of Civil Procedure section 366.3 (“Section 366.3”), which imposes a deadline of one year to enforce a claim against a decedent for breach of a promise or agreement relating to a distribution from an estate or trust, have conflicting requirements as to a claimant’s time to file a lawsuit regarding claims for breach of a promise to make a will.
Continue Reading Court Clears Up Confusion Regarding the Limitations Period to File A Lawsuit Based On A Promise To Make A Will