Revocable or "Living" Trusts have become wildly popular in California as an alternate mechanism to wills for transferring a family's wealth to the next generation. Lawyers who practice estate planning often tout trusts as a simpler and cheaper way to handle an estate. However, trusts are not without problems of their own and trusts are far from a panacea. Trusts are designed so that one or more "successor-trustees" can administer the trust and carry out its provisions without the need for court involvement. In this way the trust "avoids probate" which is the main advantage of a trust as opposed to a will.
As a small business owner, are you prepared for a lawsuit?
You may have owned your business for decades or only for a year or two. Do you know what to do if a lawsuit arises? People in the know say that anyone who operates a small business may expect to face a lawsuit at least once in his or her career, and litigation can be more damaging to a small business than to a large company.
However, if you have a plan in place to confront the unexpected, you will be able to deal with a lawsuit from a position of strength and keep your business up and running. Here are four tips that will help you prepare for the possibility of litigation.
Why Can't I Get This Frivolous Lawsuit Thrown Out Before Trial? Part 3
In earlier Blog articles we discussed the difficulty in causing the Court to throw out meritless lawsuits before trial. Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits. A Plaintiff can survive Demurrer merely by alleging facts, even improbable "facts" of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion requires only a slight controversy concerning key facts. These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit.
Living Trust Problem Trustees and Trust Accountings
Buffington Law Firm's trust dispute attorneys have been asked to solve many problems relating to misbehaving problem successor-trustees of revocable or "living" trusts. One of the most common problems with trusts once the trustors die and a successor-trustee takes over is the way successor-trustees sometimes handle trust money. Since living trusts "avoid probate," they are ordinarily not under the supervision of the Superior Court. While avoiding probate is often touted as a benefit of living trusts, it can also lead to problems with successor-trustees and the way they handle the trust money and assets.
Testamentary Capacity to Make a Trust under California Law
Buffington Law Firm's Trust and Elder Law litigation attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, whether that person posesses testamentary capacity -- the ability to make a will or trust. To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not. However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.
Why Dynasty Trusts are Usually a Bad Idea -- Dissolve that Trust!
Buffington Law Firm's California Trust Litigation attorneys have handled numerous cases involving so-called "Dynasty Trusts" as well as alternative forms of estate plans similar to these. A "Dynasty Trust" is an estate plan in which the trust does not simply distribute assets, wind up, and dissolve when the trustors pass away --the way wills usually work. Instead, the trust is set up to live on for an indefinite period after its creators die, retaining most assets of the estate in the trust, and usually paying mainly income only to the beneficiaries. This type of trust is designed to control the beneficiaries even after the trustor passes away. Perhaps the trustors believed that their children are irresponsible with money. Lawyers sometimes call this type of scheme "dead hand control" as the "dead hand of the past" is controlling the trust, its assets and income, and thereby the beneficiaries.
Why Can't I Get This Frivolous Lawsuit Thrown Out? -- Part 2
In Part 1 of this Blog article we discussed two common procedures for forcing pretrial dismissal of a lawsuit: the Demurrer and the Motion for Summary Judgment. We saw that the way the law operates plainly "stacks the deck" in favor of the Plaintiff with respect to early dismissal of a lawsuit. This is because of the law as enacted by the California legislature. These laws reflect a strong public policy of allowing plaintiffs, under most circumstances, to have their day in court.
Why Can't I Get This Frivolous Lawsuit Against Me Thrown Out? Part 1
Buffington Law Firm's civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: "Why can't I get this frivolous lawsuit thrown out before trial?" The question is, for many cases, understandable. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.
Surprising facts you must disclose when selling your home
The buying and selling of residential real estate goes on at a dizzying pace in California. If you are about to put your home on the market, what do you need to tell a prospective buyer?
From drainage issues to bedbugs, here are six types of disclosures that the law requires you to make, some of them very surprising.
Removing a Bad Successor-Trustee of a California Living Trust
One of the frequent questions asked of Buffington Law Firm's trust and estate litigation attorneys is whether a successor-trustee of a revocable "living" trust can be removed by a court action. As discussed in recent Blog articles, California living trusts are designed to operate without court supervision. The notion is that after the trustors (the person or persons who created the trust, e.g. husband and wife) have passed away, one or more designated successor-trustees will have the power under the trust instrument to carry out the provisions of the written trust instrument. When this process works as the law intends it is often cost-efficient and quick, and avoids the cost of probate.
