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 …
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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”
In the recent decision in Citizens Business Bank v. Carrano (Nov. 05, 2010), the court sensibly applied the rules for construing a will to the interpretation of an estate planning trust. This is an appropriate result, considering that the trust was intended to serve as a substitute for will. However, the law authorizing such a …
Continue reading “Citizens Business Bank v. Carrano – A Strange Conception”
The recent decision in Lickter v. Lickter (Oct. 27, 2010) — Cal.Rptr.3d —-, 2010 WL 4231300 highlights of three important points. First, a trust beneficiary does not have standing to pursue a claim on behalf of the trust after the beneficiary has received his or her distribution pursuant to the trust. This may seem like …
Some estate plans make use of a “five-or-five” provision to help reduce the estate tax. In the recent decision in Estate of Cairns (Sept. 15, 2010) 188 Cal.App.4th 937, the court had to interpret such a five-or-five provision many years after the death of the testator. As the court explained, “Margaret Cairns executed a will …
Continue reading “Estate of Cairns – Judicial Interpretation of Five-Plus-Five Power”