The Consumer Financial Protection Bureau reports that 30% of homeowners 65 and older have mortgage debt. For those 75 and older, the rate is over 21%. A significant number of California trust and probate estates have mortgage debt. For those who administer such estates – trustees, administrators and executors – questions often arise as to whether the mortgage or trust deed may be assumed by a beneficiary, heir or trustee. These are important questions and the answers are impacted by a number of factors.
California home lenders and title companies secure borrower debts on real property by deeds of trusts (trust deeds). Such deeds of trust are usually on title company or institutional lender forms. A deed of trust includes three partie[...]
Estate disputes are ugly – sometimes really ugly. So when trustees, beneficiaries, and heirs step into the fight, good counsel – that is, probate and trust litigation attorneys – should help their clients count the costs. Many times that is easier said than done. Given the complications of estate fights, estimating costs can be an elusive process.
One particular estate fight focused on the decedent’s domicile may become like a runaway train. Fighting estate battles in two or more states can seriously tax a trust, heir, or beneficiary’s bank account. The fight over of a decedent’s home may be protracted and susceptible to inconsistent state rulings. A person may reside in multiple states but only be domiciled in one. A Califor[...]
People with probate, estate and trust disputes often ask us to discuss how a contingency fee arrangement might work in their cases.
I first note that California has both statutory and ethical rules that govern attorney-client fee arrangements. All of our attorney-client fee agreements must conform to these statutory and ethical requirements.
The nature of a contingency fee is that the client pays fees to a lawyer only if the lawyer handles the case successfully. This arrangement only works where money or valuable assets are being claimed.
In an estate related contingency fee arrangement, the attorney agrees to accept a fixed percentage (often 40%) of the total recovery. If the case is won or resolved the lawyer’s fee comes out of[...]
Hackard Law, a California law firm representing clients in trust, estate and probate litigation, is regularly called upon to enforce a wronged beneficiary’s right to an accounting from an uncommunicative, recalcitrant or duplicitous trustee. While California probate courts will follow the law and order a trustee to provide an accounting, this is only part of what is often necessary to safeguard the beneficiary’s trust interests and to prevent further harm to an innocent beneficiary.
Trustee actions leading to the necessity of filing a petition for a court-ordered accounting often include the trustee’s refusal to make trust distributions. Waiting on an inheritance is a continual source of frustration to estate and trust heirs or ben[...]
When it appears you are cut out of an estate, probate distribution or inheritance from a trust, you should promptly seek counsel. Time is critical, as there are a number of statutory provisions that limit will, estate and trust challenges. The law does not favor those who sit on their rights. Statutes of limitation are uniform throughout California – whether the trust or probate dispute arises in San Francisco, Oakland, Sacramento, Los Angeles or San Diego.
Those confronted with disinheritance often face stark choices. Grief, betrayal and disbelief are a potent mix that may easily delay or eliminate any challenge against a wrongdoer. For those who seek action, there may be difficulties in paying for an estate and trust litigation attor[...]
Over years of litigating probate, trust and estate battles in California Superior Courts, our clients frequently ask the question: Do many families go through estate battles like the one we are experiencing?
Estate litigation battles, often outgrowths of disputes within families, have their own distinctive troubles. That said, the more estate fights we see, the more certain prevalent patterns become evident.
We've identified five of the most common court motions in probate, trust and estate battles. We hope that this list helps those who may be facing trust or estate battles.
Petitions against Former Trustees Alleging Wrongful Acquisition and Misappropriation of Trust Assets
Petition For Order Removing Co-Trustee and Appointin[...]
Woody Allen says, "Showing up is 80 percent of life." He also said that once you start your project “you are half way towards something good happening.” Now I can’t say that I view Woody Allen as an exemplar of great wisdom, but he really has a good point when it comes to showing up. I think that my mother actually taught me this lesson at a young age.
In forty years of practicing law I’ve had to show up at a lot of events, hearings, and meetings. I’ve traveled the country – appeared in court in eleven different states and personally met with associated lawyers in four foreign countries on their home turf. At one time we had clients in thirty-one states and I visited all of the states. I knew that showing up is 80% of success[...]
You petition the Probate Court for an Order To Suspend the Powers of a Trustee or to remove the Trustee of a Trust. You also seek to enjoin the Trustee from using trust funds for his or her defense. The Probate Judge grants a hearing. The hearing is held and the California Superior Court grants the Petition and a suspension and/or removal of the trustee is ordered. The Court also orders the appointment of the Successor Trustee. The Court will also order the former trustee to turn over all the assets of the trust to the Successor Trustee. The former trustee is usually ordered to render an accounting to the court within 30 to 60 days of the order.
The Successor Trustee begins the process of deciphering the financial actions of the predeces[...]
If you’re a trust beneficiary in California, you need to know your rights. As a trust beneficiary, you’re entitled to receive a regular distribution from funds designated to you under the rules of the trust. The trustee, the person who is in charge of administering that trust, has a legal duty toward you, the beneficiary. The trustee has the responsibility to inform you of the status of the trust and ensure that you receive your full share of distributions from a trust on time and in the right amount. Above all, a trustee is called to be fair and ethical in managing trust assets.
When a trustee isn’t fair to beneficiaries, that means beneficiaries are being abused. For protection from further abuse and in order to get rightful dist[...]
Are you about to challenge or contest a trust in a Superior Court in California? Whether you are filing in Sacramento, Los Angeles, Alameda, Santa Clara or Orange, then you should consider your battle plan. Have you retained a California trust attorney and opened the case? Before you get started, here are five things that you might consider.
Statutes of Limitation.If a beneficiary receives a trustee notice, they may have as little as 120 days in California on filing certain kinds of claims against a will or trust (CA Probate Code 16061.7). California courts do not favor those who delay. If you can “smell the coffee” and see that something is wrong, you may want to engage a lawyer and start making an effort at securing your rights.