Santa Clara County is rich in people, talent and wealth. It is home to Apple, Intel and Google. It is also a place of astonishing residential values. Santa Clara’s skyrocketing real estate prices are shattering long held expectations of retiring in place. They also affect how trust and estate disputes arise and are handled. A large percentage of estate and trust disputes revolve around the family home. There are many examples: A caretaker convinces an elderly homeowner with dementia to deed over the elder’s residence shortly before the resident’s death; A child living in the home of his parent uses undue influence to have his parent amend her trust to cut out his three siblings as beneficiaries of the trust; And a mercenary ne[...]

Justice Oliver Wendell Holmes, Jr. said, “The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” [1] I first discovered Holmes’ writings in law school and I still like to go back to them to find perspective. I think that another way to look at the life of the law is to think of it like evolution – it reuses the old, successful parts of everything that has come before. It is not static. It unfolds with new experiences and applications. So, thinking how things have changed over the years, I’m drawn to my own experiences as a plaintiff’s[...]

I listen to hundreds of stories every year. There are dozens of cases for every element of vulnerability. The stories surrounding each element often provide a foundation for the failure of an estate plan that someone tried to make bulletproof. So what kind of stories do I hear about capacity and the other elements of an undue influence claim? Let’s start with capacity, which is where estate and trust litigators first look. For wills the standard questions are whether the individual had sufficient mental capacity to be able to understand the testamentary act, the nature of their property and the memory of the individual’s relations to their family. I hear plenty of stories where the individual thinks that their long-deceased spouse is l[...]

I love my job. That’s a good thing. There’s an older Johns Hopkins study with a finding that lawyers were nearly 4 times as likely as non-lawyers to suffer from depression. That’s really not a good statistic, and I hope that my colleagues with depression find assistance. I think that one of the things I like about my job is hearing stories. We humans like stories. Oral tradition is an ancient part of our heritage. Most of us can remember sitting at our parent’s or grandparent’s knee listening to a story. It’s not unusual that we ask to hear the same story over and over again. So, my initial role in estate and trust litigation is to draw out a story. The call comes in. I listen. Our prospective clients might be classic storytel[...]

Compulsive gambling is a problem for the gambler and his or her loved ones. Gamblers Anonymous members believe that: “Compulsive gambling is an illness, progressive in its nature, which can never be cured, but can be arrested…The Gamblers Anonymous concept is that compulsive gamblers are really very sick people who can recover if they follow to the best of their ability a simple program that has proved successful for thousands of other men and women with a gambling or compulsive gambling problem.” Compulsive gamblers may present a variety of issues in trust & estate litigation. A trustee who is a compulsive gambler may find it hard to satisfy their fiduciary duties. Settlors of trusts might disinherit a child because of their c[...]

“Go big or go home” is now a part of our language. It’s spread from Southern California into the national lexicon. Its general meaning is to go all out – be bold. It fits with California trust litigation. Trust beneficiaries and disinherited heirs litigate over trusts and estates for a variety of reasons – most of them having to do with elder financial abuse, undue influence or trustee wrongdoing. Engaging in a trust and estate fight is not for the faint hearted. Challenged trustees, elder financial abusers and undue influencers do not easily give up their gains. I’ve never seen a drafting lawyer admit that the settlor (maker of the trust) or testator (maker of the will) lacked capacity or was unduly influenced. There is little[...]

Home equity in Bay Area houses constitutes the largest share of household wealth. Older people, a large part of owner-occupied units, are more likely to have spouses and dual incomes. And, they simply have had more time to accumulate wealth. Bay area home values have had some dramatic increases. Home price increase per square foot in 2017 were 11.3% - Alameda County, 14.8% - Contra Costa County, 13.3% - San Francisco City and County and 18.6% for Santa Clara County. These are not small numbers – the median home values are now around $850,000 for Alameda County, $600,000 for Contra Costa County, $1,285,000 for San Francisco City and County and almost $1,400,000 for Santa Clara County. So how do these extraordinary values influence estate[...]

Blundering trust and estate bandits are still bandits – outlaws secretly or openly defiant of laws and responsibilities that go with the legal obligations required of those who possess or are otherwise responsible for estate or trust assets. While the vast majority of trust and estate professionals take their fiduciary obligations seriously, unfortunately some outliers, some might say “bandits” - those who take “unfair advantage over others usually to procure inordinate payment or profit.” [1] Inordinate payment may range from outright theft to unconscionable overbilling that drain trusts and estate funds. Longtime Nevada estate attorney Robert Graham pled guilty last fall “to stealing more than $16 million from clients, many o[...]

Among California’s several high-stakes estate and trust litigation law firms, Hackard Law is among the leaders. When estate and trust beneficiaries have high stakes in litigated disputes, they have a major interest in its outcome. There are no magic bullets in estate litigation – there are processes and knowledge-based strategies that can improve outcomes – but the risks of litigation always exist. The very nature of litigation is risk – risk that the result sought will fail, risk that the expenditure of time and money will not be worth the reward, and risk that the costs of failure can be high. Such risks should be assessed and are a part of reasoned decision-making. Annie Duke’s Thinking in Bets: Making Smarter Decisions W[...]

Petitions to suspend the powers of a California trustee are part and parcel of trust litigation. They’re often filed with the Probate Division of the Superior Court in which the trust is administered or the trustee resides. California Probate Code Section 15642 provides in part “If it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee. . . the court may, on its own motion or on petition of a cotrustee or beneficiary, compel the trustee whose removal is sought to surrender trust property to a cotrustee or to a receiver or temporary trustee. The court may also suspend the powers of the trustee to the extent the court deems necessar[...]