Based on recent appellate cases, one of which is discussed below, the court’s scrutiny of conservators’ conduct and, specifically, private fiduciaries, is seemingly on the rise. Private fiduciaries acting as conservators should always remain focused on performing and charging only for those services that are consistent with the best interests of their conservatees. California case law continues to refine that understanding.
Under California law, the laws of intestacy control who inherits when a person dies without having prepared a valid will or trust. These rules can be complicated particularly as remote or even unknown blood relatives may have a claim to assets of the decedent’s estate. However, these long lost relatives often must prove up their entitlement to inherit from the decedent’s estate.
The California Probate Code has a procedure in place to determine who is entitled to inherit from the decedent as set forth under California Probate Code section 11700 et seq. Filing a petition under this section is particularly useful when there is uncertainty as to the actual heirs of the decedent’s estate.
Weintraub is pleased to welcome Allison M. Pedrazzi to our Trusts & Estates Group. Allie works with families and individuals in all aspects of estate planning, trust and probate administration, and related real estate, tax and business succession issues.
Leslie Kolafa joins the Trusts and Estates group as an associate. Leslie practices in trusts and estates litigation, and also assists clients with estate administration, conservatorships, and fiduciary representation
Weintraub attorneys wrote the following case alert for the State Bar of California Trusts and Estates Section regarding FirstMerit Bank, N.A. v. Diana L. Reese. The case alert may also be found on the website for the State Bar of California under Trusts and Estates Section, New Case Alerts.
FirstMerit Bank, N.A. v. Diana L. Reese
Filed November 19, 2015, Fourth District, Div. Two
Cite as E061480
FirstMerit Bank sought to enforce a money judgment against Reese by applying for an order under Code Civ. Proc., § 708.510 assigning Reese’s interest in two trusts to FirstMerit, and an order restraining her from otherwise disposing of her right to payment under the trusts. The trial court denied the motion because a debtor’s interest in a trust is specifically not subject to such an assignment order.
The court of appeal affirmed. The only means by which a judgment creditor may enforce a money judgment against a beneficiary’s interest in a trust is by a lien under Code Civ. Proc., § 709.010. However, such an order must be sought from the court with jurisdiction over the trust. In this case the trusts were administered in Ohio. Therefore, even if FirstMerit had utilized the correct procedure, the California court had no jurisdiction to impose such a lien. http://www.courts.ca.gov/opinions/documents/E061480.PDF
Weintraub Tobin is pleased to announce that Gary D. Rothstein has joined our San Francisco office as Of Counsel.
Gary comes to us Weintraub from a national law and consulting firm. Gary has extensive experience with all aspects of trust administration, probate matters and estate planning.
With offices in San Francisco, Beverly Hills, Newport Beach and Sacramento, Weintraub Tobin attorneys utilize cutting edge ideas and innovate approaches to reach our clients’ business objectives. We are committed to providing clients with exceptional service and encourage everyone to visit our website at www.weintraub.com to learn about the full range of legal services we provide.
Please join Weintraub Tobin in welcoming Gary to our team!
Last Thursday, the United States Supreme Court ruled in Clark v. Rameker that funds held in inherited individual retirement accounts (IRAs) are not “retirement funds” for bankruptcy purposes.
In October 2010, the Clarks filed for bankruptcy and claimed that Heidi Clark’s $300,000 inherited IRA was exempt from their bankruptcy estate under Section 522 of the Bankruptcy Code (which provides that tax-exempt retirement funds are exempt from a bankruptcy estate). The bankruptcy trustee and creditors objected to this, taking the position that the funds were not “retirement funds” within the meaning of Section 522. The Bankruptcy Court agreed with the trustee and creditors.
The district court ruled that inherited IRAs are exempt because they retain their character as retirement funds, but the US Court of Appeals for the Seventh Circuit reversed that ruling. The Supreme Court agreed with the Seventh Circuit, holding that the funds in an inherited IRA are not set aside for the debtor’s retirement and, thus, are not “retirement funds” under the exemption in Section 522.
When discussing your estate planning needs with your attorney, after you discuss basic terms and concepts, your attorney will likely talk to you about the different types of revocable living trusts that may be appropriate for you. If you are married, this may include a discussion about a revocable living trust structure commonly referred to as a “Sweetheart Trust.”
The Sweetheart Trust derives its name from the high level of control and discretion the surviving spouse maintains after the death of the first spouse. Initially, while both spouses are alive and competent, either spouse can revoke his or her share of the trust and the terms of the trust can usually be modified with the consent of both spouses. When one spouse dies, all trust assets remain in the same revocable trust for the lifetime of the surviving spouse. During the surviving spouse’s lifetime, he or she can terminate the trust, change its terms, add or remove beneficiaries, and otherwise manage the trust as he or she sees fit. Because the surviving spouse has complete and absolute control over the trust after the first spouse dies—in essence, an unconditional gift—this type of trust is called a Sweetheart Trust. Continue Reading
It was recently revealed that the late Paul Walker left his entire estate—valued at approximately $25 million—to his 15-year-old daughter, Meadow.
As reported, Paul Walker named his father as the executor of his will and his mother, Cheryl, as the guardian of Meadow’s person and now-$25 million estate. Prior to his death, Meadow lived with her father but now lives in Hawaii with her mother, Rebecca Soteros. Already, this decision is causing people to wonder why Paul would name someone other than Meadow’s biological mother as Meadow’s guardian.
In California, a deceased parent’s nomination of a guardian of the person for a minor child usually has very little practical effect when the other parent survives. This is primarily due to two considerations. First, since the surviving parent typically has custody of the child, it is not uncommon for the nomination of a guardian of the person of the minor child to take effect only upon the death of both parents. Second, under the California Probate Code, one parent can make the nomination only if the other parent (a) joins in the nomination, (b) consents to the nomination, (c) is dead, (d) lacks legal capacity, or (e) is in included in the category of parent whose consent is not required for an adoption. Also, the California Family Code requires that the preferences of the child be given “due weight” if the minor is able to form an intelligent choice. Given all this, it is unlikely that Cheryl will be appointed the guardian of the person for Meadow without either Rebecca’s consent or a strong showing that Rebecca is unable to take care of Meadow.
On the other hand, it is very possible that Cheryl will be appointed as the guardian of the estate for Meadow. California law allows a parent to nominate a guardian of the estate to oversee the management of any assets given to a minor child by that parent—regardless of whether the other parent is willing or able to manage the assets. This means that it is perfectly acceptable (and not all that unusual in these types of family situations) for Paul to nominate someone other than Rebecca to manage Meadow’s massive estate.
Although most people are focusing on who is going to be Meadow’s guardian, perhaps the more interesting question is why Paul did not establish a testamentary trust for his teenage daughter. Based on available information, when Meadow turns eighteen the guardianship will terminate and Meadow will have complete control over her $25 million estate—something most eighteen-year-olds are ill-equipped to handle. Had he instead left his fortune to Meadow in trust, Paul could have set more appropriate parameters on Meadow’s access to his assets, such as keeping the assets in trust until Meadow is older. Given the fact that Paul went to the effort to create a will, it is curious why he did not, instead, avail himself—and his estate—of the protections afforded by a trust.
As we continue to watch this story unfold, no doubt we will see more instances where better estate planning could have saved Paul’s family unnecessary conflict.