Practice Areas

Will and Trust Litigation

Disputes over the actions (or inaction) of a trustee or executor, and interpretation of the terms of trusts, amendments, wills, or codicils, can lead to litigation between the beneficiaries or heirs and the person who is administering the trust or estate. Trustees, executors, and other fiduciaries owe duties to beneficiaries and heirs. The breach of these fiduciary duties – both intentional and negligent – can lead to will and trust litigation.

Disputes regarding mental capacity or incompetence, and the effect of cognitive impairments resulting from Alzheimer’s disease and other forms of dementia on the validity of the trusts, amendments, wills, codicils, or other estate planning instruments, can lead to trust or will contests. Similarly, disputes over whether a change to an estate planning instrument resulted from undue influence exerted by a trusted family member or other individual can result in a contest.

Financial Elder Abuse

Years ago, the California Legislature recognized the particularly vulnerable status of elders in our State. The natural effects of age make some elderly members particularly susceptible to the unscrupulous. Others are taken advantage of by those whom they most trust: caregivers, friends, sometimes even children. Frequently on fixed income or living off savings, it is not uncommon for elders to lack the resources to pursue claims against those who have wronged them.

The laws protecting elders provide a strong avenue for relief. They recognize the important role elders play in our community, and provide for their protection through, in appropriate cases, the imposition of additional damages and awards of attorneys fees. Whether a plaintiff or defendant, it is vital to retain counsel with a wealth of experience in the field of financial elder abuse, and who understands the contours of this legal landscape.

Conservatorships

A conservatorship is a court proceeding whereby an individual, usually a family member or close friend, asks the Court to appoint someone to manage the health care and/or finances of another who no longer has the mental or physical ability to do so on his or her own, whether because he or she lacks the ability to manage health care and finances, or is unable to resist fraud or undue influence.

ESTATE PLANNING

Estate Planning involves planning to effectively manage your property while you are alive and preparing written instructions arranging for the passing of your property to your family and/or selected beneficiaries upon your death with as little fuss and expense as possible. Planning your estate may involve making gifts, buying insurance, and creating a will, living trust, health care directives, durable power of attorney for finances, and/or other documents.

Estate planning is a process which involves the creation of an original estate plan and updating this estate plan as circumstances change and the law evolves.

Through estate planning, you can determine:

  • How and by whom your assets will be managed for your benefit during your lifetime if you ever become unable to manage them yourself.
  • When and under what circumstances it makes sense to distribute your assets during your lifetime.
  • How and to whom your assets will be distributed after your death.
  • How and by whom your personal care will be managed and how health care decisions will be made during your lifetime if you become unable to care for yourself.
  • Who you want to handle the management of your property during your lifetime if you are not able to manage your property and who will handle your property and affairs after your death.

Many people mistakenly think that estate planning only involves the writing of a will or preparing a trust. Estate planning, however, can also involve financial, tax, medical and business planning. A will or trust is only part of the planning process; you will need other documents as well to fully address your estate planning needs.

It is also important to keep in mind that estate planning is not just for the rich or well off; everyone needs an estate plan.

Living Revocable Trusts

A Revocable Trust is a written document that partially substitutes for a will. It is established during your lifetime and can be amended or revoked at any time before death. Revocable Trusts are a common and excellent way to avoid the cost and hassle of probate because the property held in a Revocable Trust during life passes directly to the trust beneficiaries after the trust maker’s death without probate court proceedings. With a Revocable Trust, your assets (your home, bank accounts and stocks, for example) are put into the Revocable Trust and administered for your benefit during your lifetime. Upon your death, the successor trustee (the person you appoint to handle the Revocable Trust after your death) transfers ownership to the beneficiaries named in the trust. Your successor trustee serves a very important role and has significant responsibilities. You should choose you successor trustee carefully.

Certain Revocable Trusts contain provisions to reduce or eliminate federal estate tax. Revocable Trusts are also referred to as “Living Trusts” or “Inter Vivos Trusts.”

Most people name themselves as the trustee in charge of managing their Revocable Trust’s assets. This way, even though your assets have been put into the Revocable Trust, you remain in control of your assets during your lifetime. You will also name a successor trustee (a person or an institution) who will manage the Revocable Trust’s assets if you ever become unable or unwilling to do so yourself and who will also manage and distribute the Revocable Trust assets after your death.

The terms of the Revocable Trust will:

  • Give the trustee the legal right to manage and control the assets held in your Revocable Trust.
  • Instruct the trustee to manage the Revocable Trust’s assets for your benefit during your lifetime.
  • Name the beneficiaries (persons or charitable organizations) who are to receive your Revocable Trust’s assets when you die.
  • Give guidance and certain powers and authority to the trustee to manage and distribute your Revocable Trust’s assets. The trustee is a fiduciary, which means he or she holds a position of trust and confidence and is subject to strict responsibilities and very high standards. For example, the trustee cannot use your Revocable Trust’s assets for his or her own personal use or benefit without your explicit permission. Instead, the trustee must hold and use Revocable Trust assets solely for the benefit of the trust’s beneficiaries.
  • Provide for a deferred distribution on a minor’s share of the assets of the Revocable Trust so that they do not receive all of their share of the assets upon their 18th birthday.

Wills

A Will is a legal document in which you specify who is to receive your property at death and name an executor to handle the administration of your estate after your death. You can also use your Will to name a guardian for your young children. To be valid, a Will must be signed by the person who made it (called the testator), dated, and witnessed by two people. A Will totally in the handwriting of the testator, signed and dated (a “holographic will”) but without witnesses, is also valid in California. Your Will can be amended or revoked by you while you are alive, but becomes irrevocable when you die.

In your Will, you can name:

  • Beneficiaries: You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your will. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets (any assets that your will does not dispose of by specific gift).
  • Guardian: You may nominate a person to be responsible for your minor child’s personal care if you and your spouse die before the child turns 18. You may also name a guardian (who may or may not be the same person) to be responsible for managing any assets given to the child until he or she is 18 years old.
  • Executor: You may nominate a person or institution to collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute your assets to your beneficiaries according to the instructions in your Will. Your executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose your executor carefully.
  • Durable Powers of Attorney: A Durable Power of Attorney is a legal document that gives a person you choose the authority to manage your financial affairs during your lifetime and can also be very helpful if you ever become incapacitated. It deals with assets that were not transferred to your Revocable Trust before you became incapacitated and any assets that you receive afterwards which you do not transfer to your Revocable Trust. With this Durable Power of Attorney, you appoint another individual (the “attorney-in-fact” ) to make financial decisions on your behalf regarding assets not held in your Revocable Trust (your successor trustee will handle trust assets). Under normal circumstances, the successor trustee and attorney-in-fact is the same person and can coordinate and handle all of your property including property held in the Revocable Trust and property held outside the Revocable Trust.
  • A Durable Power of Attorney expires upon your death so it cannot substitute for a Revocable Trust or Will which provide instructions for the distribution of your assets after your death.
  • Advance Health Care Directives: An Advance Health Care Directive is a written document that allows you to set out your written wishes in regard to health care treatment and to designate the person(s) who will make health care decisions for you when you can no longer make such decisions for yourself. In your Advance Health Care Directive, you may state your wishes regarding life-sustaining treatment, organ donation, funeral arrangements and who should serve as your conservator if you should need to have a conservator. An Advance Health Care Directive can also allow an authorized agent to access your medical information, which can be a very important provision in light of strengthened federal and state privacy laws.

 

PROBATE

Probate is the court-supervised process where the executor named in your Will or an administrator appointed by the court if you have no Will, files a petition with the court seeking official appointment as the executor/administrator of your estate. Once the executor/administrator is appointed they will take charge of your assets, identify and inventory your property, pay your debts, organize your assets for distribution, identify your heirs and, after receiving court approval, distribute your estate to your beneficiaries.

Simpler procedures are available for transferring assets to a spouse or registered domestic partner, or for handling small estates with assets under $150,000.

The probate process has advantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews and supervises the executor’s handling of the estate, which can help protect the beneficiaries’ interests. It is often a better process if the assets of the estate are limited, if the nature of the assets is complex or confusing, or if it is anticipated that there will be conflict amongst the beneficiaries regarding the administration of the estate or the distribution.

There are also a number of disadvantages to the probate process. The cost of probating an estate as opposed to administering a trust can be significantly greater because lawyer’s fees and executor’s commissions in a probate are based on a statutory fee schedule which increases as the size of the estate rises. Probates are also public so your estate plan and the value of your assets will become a matter of public record. Time can be a factor as well since a probate proceeding generally takes longer than the administration of a living trust.

You should carefully discuss such advantages and disadvantages with an estate planning lawyer before making any decisions since every factual situation is different.

 

TRUST ADMINISTRATION

The administration of a Revocable Trust during the lifetime of the person(s) who created the trust (trustor(s)) involves management of the trust assets by the trustor(s), much as they managed these assets before the Revocable Trust was created.

The administration of a Revocable Trust upon the death of the trustor(s) involves many of the same issues that are dealt with in a probate proceeding including sending out statutory notices, identifying and taking inventory of trust property, paying your debts, organizing trust assets for distribution, identifying your heirs and beneficiaries, paying any taxes you might owe and distributing the assets of the Revocable Trust to the beneficiaries. The administration of a Revocable Trust does not proceed under court supervision, normally is less expensive than a probate proceeding, remains confidential and typically moves more quickly than a probate proceeding. It is a process that also allows for a simpler process for partial or preliminary distributions.

 

Mediation

Mediation is a form of alternative dispute resolution in which the parties to a dispute agree to have a neutral mediator (usually an attorney or retired judge) help them work toward a settlement that resolves their disputes rather than continuing with the emotional and financial strains inherent to litigation. The mediation process is completely confidential, allowing the parties to focus on resolving their disputes.

Joe Morrill is certified as a mediator included on the Contra Costa Superior Court Alternative Dispute Resolution Panel of Neutrals.

Discovery Referee

Discovery referees are appointed by the Court following an agreement of the parties or a motion. They serve to decide discovery matters in a manner that frequently results in much faster decisions and relieve the Court of the burden of heavier dockets. Discovery referees review pleadings just as the Court would, conduct hearings, and issue written opinions. Particularly with respect to probate litigation, by choosing a discovery referee with significant experience in probate, the need to educate the discovery referee regarding the reasons discovery is relevant or necessary, as well as the corresponding cost, is greatly reduced.

Partition Referee

Partition referees are appointed by the Court following an agreement of the parties or a motion. They serve to decide partition issues in a manner that frequently results in much faster decisions and relieve the Court of the burden of heavier dockets. Partition referees review pleadings just as the Court would, conduct hearings, and issue written opinions or recommendations that the Court may adopt. Particularly with respect to probate litigation, by choosing a partition referee with significant experience in probate, the need to educate the referee regarding the underlying probate issues, as well as the corresponding cost, is greatly reduced.

General Civil Litigation

In life, things go wrong. People take what is not theirs, do not abide by contracts, and, generally, have disagreements. The civil court system is how we resolve these issues. From fraud to breach of contract to conversion (the civil equivalent of theft), the civil courts allow people recourse when they feel they are wronged. This allows the courts to decide who should pay whom without the imposition of criminal penalties, and can serve to compensate someone who is wronged and prevent the conduct from continuing in the future.

Probate and Civil Appeals

After a decision is made by a judge or jury, a losing party has a right to appeal to a panel of judges who review the ruling of the court below, and decide whether it conforms with the current body of law. The procedures to pursue an appeal are very different than those in the trial court, and are decided primarily on the written briefs. The procedures and rules governing appeals can be complex, and require the ability to analyze and distill large numbers of cases and draft persuasive briefs. To maximize the chances of success on appeal, a party should retain counsel who is well versed in both appellate procedure and the underlying field of law.