I am reading a series of lectures delivered in 1972 by S.F.C. Milsom and collected in The Legal Framework of English Feudalism (Cambridge University Press 1976). The text is difficult, as it frequently refers to rights, remedies, and procedures that long ago ceased to be relevant in the law of English-speaking nations. Still, as I …
Continue reading “The Long-Standing Connection Between Real Estate Law and Probate”
This author has often complained that the trust laws have not kept pace with modern practice as it relates to estate planning. Estate planning trusts (a.k.a. “living trust”) are used as will substitutes. The rules pertaining to wills are well known, and are established by case and by code. In contrast, the statutory rules relating …
This writer has commented regularly that the modern estate planning trust is a legal fiction. A convenient legal fiction, mind you, but still a legal fiction. The estate planning trust (also known by the unfortunate term, “living trust”) is a merely a will substitute. It takes effect – meaning, it provides a benefit to a …
Here is the clearest explanation I have found to date regarding the rise of trusts in English law. Bear in mind that England was still a feudal system in the year 1350. Also bear in mind that a court of law could not enforce a trust – such jurisdiction lay within the court of equity, …
Continue reading “Tracing the Origin of the English Trust to the Year 1350”
The fees in a probate case trigger a reaction that sometimes borders on panic. Part of the reasoning behind the use of an estate planning trust (sometimes referred to as an inter vivos trust) is that the trust will save on attorney’s fees. However, as I tell clients, it only works if the beneficiaries get …
The courts are increasingly faced with the cases involving the interpretation and enforcement of estate planning trusts. In Diaz v. Bukey (May 10, 2011) 2011 DJDAR 6650, the court concisely framed the dispute: “The beneficiary of a trust petitions to remove her sister as trustee of their parents’ trust. The trustee responds by seeking to …
Continue reading “Trust Does Not Create Contractual Rights in Favor of Beneficiary”
In McMackin v. Ehrheart (April 8, 2011) 2011 DJDAR 5122, the court of appeal held that a Marvin-based palimony claim under California law could be asserted against an estate more than three years after the decedent’s death. We remark on the extent to which the law is willing to allow a person to make a …
Continue reading “McMackin v. Ehrheart – The Canary Swallows the Cat”
The decision in Bonfigli v. Strachan (Feb. 24, 2011) 2011 DJDAR 2893 is a reminder not to press for advantage when using a power of attorney. The defendant was a developer who used a power of attorney to reconfigure two parcels so that he got to keep the land, but did not have to pay …
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The recent decision in Kucker v. Kucker focused on a narrow issue. Is a general assignment of assets valid for transfer of stock into an estate planning trust? The court answered in the affirmative, but not before confronting the statute of frauds. And not before stating an important distinction regarding real property. The facts were …
Continue reading “Kucker v. Kucker – General Assignment to Trust Includes Unspecified Stock”
In a recent bankruptcy case, the Ninth Circuit held that a transfer to a trust could be set aside years after the transfer was made. In In re Schwarzkopf (9th Cir Nov. 23, 2010) ___ F.3d ___, the court held that, because the transfer was a fraud on creditors at the time it was made, …
Continue reading “Debtor’s Fraudulent Transfer of Property Set Aside Years After Trust Was Formed”