Trusts
If you are creating a will or trust with multiple beneficiaries in California, you may have learned about California’s no-contest clause, which prohibits a beneficiary of your will from receiving a gift if they challenge the will in court. Many people believe adding a no-contest clause to their will or trust will prevent disputes between their named beneficiaries. However, before making the decision to add a no-contest clause to your will or trust it is important to understand the nuances and ramifications of California’s no-contest clause.
What Does a No-Contest Clause Do?
According to California Probate Code section 21310(c), a no-contest clause is “a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary for filing a pleading in any court.” Including this provision in your will or trust penalizes a beneficiary if they contest or challenge the terms of said will or trust in court. The penalty typically revokes the gift the beneficiary would have otherwise received from the trustor.
For example, if a beneficiary stands to receive a quarter of the assets left in a will or trust upon the death of their family member a no-contest clause seems to be a strong deterrent against suing to gain a larger share of the assets in the will or trust. However, it is important to remember that simply including a no-contest clause in your will or trust does not prevent a beneficiary from suing.
How is a No-Contest Clause Enforced?
No-contest clauses are enforced by revoking or minimizing the gift a beneficiary would have received from a will or trust had they not challenged it in court. However, as noted above, this does not mean that they cannot sue. In California, a beneficiary who believes they have probable cause to contest a will or trust may not be penalized for taking such an action, and in fact, may be rewarded with a larger share of the will or trust’s assets.
According to California Probate Code, “probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.”
No-contest clauses are only enforced after the contestant loses at trial. If the contestant wins, the trust or will, along with the no-contest clause, may be deemed invalid, and as such will not be enforced.
Consult an Estate Planning Attorney
Whether you are considering adding a no-contest clause to your will or trust or would like to contest a will that contains a no-contest clause, The Law Offices of Daniel Leahy is prepared to advocate for you. Mr. Leahy is an experienced Northern California attorney who handles matters of trusts and estate law. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland are prepared to handle your legal questions after a loved one has passed. Call (510) 985-4151 or contact us online to set up a free consultation.
Trusts
One of the most important decisions made during creation of a trust is the selection of a sole trustee or co-trustees. A trustee is a person who manages and distributes trust assets, and co-trustees must perform these duties together. Although there are certainly cases where co-trustees work well together, in California disputes between co-trustees often arise when they cannot reach a unanimous decision regarding the trust they are administering. In these cases, it is important that each co-trustee knows their rights, so the conflict may be resolved without harming the beneficiaries of the trust.
Co-Trustee Disputes in California
Unlike most states, in California co-trustees may only make administration decisions through unanimous consent. According to California Probate Code, unanimity applies to co-trustees “unless otherwise provided in the trust instrument.” Although an estate planning attorney may discuss such language with a trustor to allow action by a majority of trustees, if that wording is not included, actions cannot be taken without consent of all trustees.
In these situations, conflict is likely to arise when the co-trustees are unable to agree on the actions to take on behalf of the trust. Decisions including hiring an attorney to review the trust, hiring a real estate agent to sell trust property, or hiring an accountant to prepare tax returns must be consented to by all trustees named by the trustor.
Co-Trustee Resolutions in California
If you find yourself embroiled in a dispute with your co-trustee(s) there are legal steps you can take to resolve the conflict. Co-trustees who are subject to the default rule in California may file a petition for instructions, which asks a judge of the Superior Court to provide direction to the co-trustees. The purpose of requesting a hearing is to ask a judge to determine whether a trustee’s actions are right, and in the best interest of the trust.
A trustee may also petition the court to remove their co-trustee. Removing a trustee is a complex process that involves holding a hearing to examine the evidence supporting the petition’s request. It also gives the co-trustee an opportunity to respond to the issues raised in the petition. Removal of a co-trustee may be granted if the court finds evidence of wrong-doing or mismanagement of the trust by a co-trustee.
It is important to remember that each trust dispute brings its own complexities that should be examined by an experienced estate planning attorney before action is taken.
Consulting a California Estate Planning Attorney
If you believe your co-trustee is no longer acting in the best interest of the trust you are administering together, Daniel Leahy can help make things right. Mr. Leahy is an experienced Northern California estate planning attorney. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland is prepared to handle your estate planning issues. Contact us or call (510) 985-4151 to set up a free consultation.
Estate Administration
While having a will or trust is the ideal way to inherit property from a family member who has recently passed away, unexpected deaths of family members due to accidents or sudden illness may mean the state will be left to distribute the property and assets of the deceased. If your family member has passed away without leaving a will in place, you may find yourself in the unfortunate position of needing to prove your heirship.
Proving Heirship
When a person dies without a will, their heirs may still be entitled to a share of the property and assets left by the deceased. However, before they can inherit any property or assets, they must first convince the probate court of their relationship to the deceased.
To establish heir status in California, you may file an “affidavit of heirship” in the Superior Court of the county where your deceased family member’s property is located. California family code states that the petition must include the heir’s basic information including a description of the property you are claiming, your name, age, and residence, and the names and information of other potential heirs if they are known. In addition to the required information, it may be helpful to include evidence of your relationship to the deceased such as a birth certificate.
You must also file a decree of determination of heirship with the court in the county of the estate is located. If granted, this decree establishes the petitioner’s identity as an heir of the state, as well as their claim to the property or asset as valid. If the decree is granted, you must notify all relevant parties that the petition was filed.
After proceeding through the aforementioned process, the court may issue a decree confirming heirship, which serves as legal proof that you are an heir to the decedent’s estate.
Contesting Heirships
You may find yourself in the position of contesting heirships petitioned by people who feel they have a claim to your family member’s property and assets. California family code states that any party with a possible claim to property has the right to dispute a petition. The court will set a hearing during which any interested party with a claim to the decedent’s property may contest the heir status of a petitioner claiming rights to property and assets.
Contact a Skilled Estate planning Lawyer in California
Daniel Leahy is prepared to treat your unique situation with the sensitivity and attention to detail it deserves. Mr. Leahy is an experienced Northern California attorney who focuses on matters of trusts and estate law. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland are prepared to handle your legal questions after a loved one has passed. Call (510) 985-4151 or contact us to schedule a free consultation.
Wills
Sometimes the contents of a will are unexpected and may exclude people who were assumed to be included. Although being left out of a will is not a situation you imagined yourself in, it is important to consider your position, take steps to clarify why you were not included, and explore the legal remedies for contesting the will if necessary.
Contesting a Will in California
As a child or spouse of the deceased, you have certain rights when it comes to the inheritance of property or assets of your family member. An author of a will, called a testator, may attempt to disinherit you for a variety of reasons by omitting you from a will. Some common reasons for being left out of a will or trust include:
- Testator has neglected to update their estate plan
- Testator and heir had unresolved conflict
- Testator has provided for their child or spouse by other means
It is important to discuss the specifics of your case with an experienced estate planning attorney to determine if you have been wrongfully disinherited and possibly seek recourse. As the spouse or child of a deceased family member you may be entitled to up to half of the deceased family member’s estate, unless the will left specific language to disinherit you.
One way to challenge your disinheritance is to contest whether the will is valid. For a will to be valid in California it must be in writing, signed, and witnessed by two or more individuals. If the will is declared invalid, the estate is distributed to the decedent’s heirs as required under California law.
Another option that may be explored is whether the deceased was under undue influence, or lacked the mental capacity to make a will. Undue influence in will writing occurs when a person is compelled to draft their will to comply with the wishes of another. In either case, it may be argued that the will does not reflect the wishes of the decedent, and if proven, may be declared invalid.
Finally, there may be loopholes in the language used to disinherit you that may be challenged. For example, a child may challenge language that asserts they have been adequately provided for by other means.
Reach Out to a Knowledgeable California Estate Planning Attorney
If you believe you have been wrongfully disinherited, you should consult an experienced trusts and estates planning attorney. Daniel Leahy is prepared to treat your unique situation with the sensitivity and attention to detail it deserves. Mr. Leahy is an experienced Northern California attorney who handles matters of trust and estate law. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland is prepared to handle your legal questions after a loved one has passed. Call (510) 985-4151 or contact us online to set up a free consultation.
Estate Administration
Granting power of attorney allows another person to perform legal acts on your behalf, including consenting to medical treatment or selling property. By granting power of attorney, you can gain peace of mind knowing that in the event of incapacitation, your wishes can be attended to by a person you trust. Unfortunately, there are cases when the holder of power of attorney takes advantage of the person who granted power of attorney. In these cases, a third party may wish to contest power of attorney.
What is Power of Attorney?
According to California law, any “natural person having the capacity to contract may execute a power of attorney.” A person who has granted power of attorney to another person is known as the principal. They must be able to communicate the decision and understand the rights and responsibilities affected by the decision, the consequences for the decision maker, and the risks and benefits of the decision. The principal also retains the right to revoke power of attorney if he or she is mentally competent and able to communicate their wishes.
Contesting Power of Attorney
Power of attorney is typically granted by a principal to a member of their family whom they trust. However, there are times when we believe that the person granted power of attorney is no longer acting with our family member’s best interests in mind. For example, a power of attorney may be invalidated if the agent is abusing his or her authority. Examples of such abuse include stealing from the principal’s assets, neglecting the principal’s needs, or endangering the life of the principal. In these cases, it is important to consult an expert who can review the specifics of your case as your word will be pitted against the word of the person acting as a power of attorney.
Another common dispute involves challenging a power of attorney appointment on the grounds the principal was mentally competent when granting power of attorney. For the court to override the principal’s decision, you must have doctors or mental health professionals prove the principal is suffering from dementia, Alzheimer’s disease, or another form of mental incapacity.
Discuss your Situation with an Experienced California Estate Planning Attorney
If you believe the person holding power of attorney for your family member is neglecting their best interests, Daniel Leahy can help. Mr. Leahy is an experienced Northern California attorney with a focus on trusts and estate law. Serving Alameda County and the surrounding area, Call the Law Offices of Daniel Leahy at (510) 985-4151 or contact us online to set up a free consultation.
