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Trusts and Estates

Ca. Trs. & Estates Quarterly 2019, Volume 25, Issue 3

Inside this Issue:

How to Get Rid of a Dead Body……………………………………………6
Daniel C. Kim
This article provides an overview of various topics relating to the disposition of human remains including who has control of the remains, which laws and documents govern such control, the transportation and disposition of remains, and the removal of remains after burial.

Tax Issues When Settling a Trust or Estate Dispute: A Guide For The Litigator……………………………………………………15
Brian G. Fredkin, Esq., and Ryan J. Szczepanik, Esq.
This article helps trust and estate litigators to identify the tax issues most likely presented in a trust or estate dispute, to reach a settlement agreement that the IRS and federal courts are more likely to respect, and to avoid an unexpected tax surprise.

Both Attorney and Trustee: Doubling Down or a Bad Bet? ………35
Patrick A. Kohlmann, Esq., and Jennifer F. Scharre, Esq.
This article addresses the potential conflicts between ethical and fiduciary duties that an attorney should be aware of before agreeing to act as a trustee and suggests a possible roadmap to contest such an appointment for a beneficiary who is dismayed to learn that a parent’s attorney is acting as trustee.

Urick v. Urick: (Re)Opening the Floodgates of Trust Contests…..42
Craig S. Weinstein, Esq.
In 2010, the California legislature overhauled the Probate Code with respect to no contest clauses, aiming to limit their enforcement to specific challenges and decrease litigation. However, the 2017 ruling in Urick v. Urick permitting a trust contestant to use California’s anti-SLAPP statute as a defense to the enforcement of a no contest clause could have the unintended consequence of increasing trust contests and related litigation. This article discusses how to reconcile the competing policies between the law governing no contest clauses and California’s anti-SLAPP statute and offers a proposal to resolve those differences.

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