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Editorial Board

Mason Brawley

Carlena L. Tapella

Kristen E. Caverly
San Diego

Ralph E. Hughes
San Diego

Howard A. Kipnis
San Diego

Judith P. Hehir

Cheryl A. Forbes
Red Bluff

Michael J. Rosen-Prinz
Los Angeles

Stella Pantazis
San Francisco

Summary of Articles


 Volume 25
Issue 1, 2019
Issue 2, 2019
Issue 3, 2019
Issue 4, 2019
Volume 24
Issue 1, 2018
Issue 2, 2018
Issue 3, 2018
Issue 4, 2018
Volume 23
Issue 1, 2017
Issue 2, 2017
Issue 3, 2017
Issue 4, 2017
Volume 22
Issue 1, 2016
Issue 2, 2016
Issue 3, 2016
Issue 4, 2016
Volume 21
Issue 1, 2015
Issue 2, 2015
Issue 3, 2015
Issue 4, 2015
Volume 20
Issue 1 2014
Issue 2 2014
Issue 3 2015
Issue 4, 2015
Volume 19
Issue 1 2013
Issue 2 2013
Issue 3 2013
Issue 4 2014
Volume 18
Spring 2012
Issue 2 2012
Issue 3 2012
Issue 4 2013
Volume 17
Spring 2011
Summer 2011
Volume 16
Spring 2010
Summer 2010
Fall 2010
Winter 2010-2011
Volume 15
Spring 2009
Summer 2009
Fall 2009
Winter 2009-2010
Volume 14
Spring 2008
Summer 2008
Fall 2008
Winter 2008-2009
Volume 13
Spring 2007
Summer 2007
Fall 2007
Winter 2007-2008
Volume Twelve
Spring 2006
Summer 2006
Fall 2006
Winter 2006
Volume Eleven
Spring 2005
Summer 2005
Fall 2005
Winter 2005
Volume Ten
Spring 2004
Summer 2004
Fall 2004
Winter 2004
Volume Nine
Spring 2003
Summer 2003
Fall 2003
Winter 2003
Volume Eight
Spring 2002
Summer 2002
Fall 2002
Winter 2002
Volume Seven
Spring 2001
Summer 2001
Fall 2001
Winter 2001
Volume Six
Spring 2000
Summer 2000
Fall 2000
Winter 2000
Volume Five
Spring 1999
Summer 1999
Fall 1999
Winter 1999
Volume Four
Spring 1998
Summer 1998
Fall 1998
Winter 1998
Volume Three
Spring 1997
Summer 1997
Fall 1997
Winter 1997
Volume Two
Spring 1996
Summer 1996
Fall 1996
Winter 1996
Volume One
Spring 1995
Summer 1995
Fall 1995
Winter 1995

Volume 25, Issue 2 • 2019

How Could I Dance With Another, When I Saw No Standing There?

Barefoot v. Jennings demonstrated the limitation on standing provided in Probate Code section 17200. While many in the trust litigation bar were, and still are, taken by surprise by the Court’s ruling (which is before the California Supreme Court), the author concludes that perhaps practitioners should not have been surprised. This article draws attention to systemic limitations on standing and, as discussed in the Barefoot opinion, suggests workarounds by which to proceed.

Brief Survey of Western States’ Laws Relevant to California Estate Planners

California estate planning practitioners often need to address matters arising in other states. Sometimes a client has moved from another state, is moving to another state, or owns property in another state. Because of geographic proximity, multi-jurisdictional issues frequently involve the laws of Arizona, Nevada, Oregon, and Washington. This article provides a brief survey of the laws in these states.

Imperfect Grafts: Legislative and Judicial Additions to California Probate Code Sections 15300 et seq

This article summarizes California’s seemingly-inconsistent spendthrift trust law and discusses the seminal cases that attempt to reconcile the apparent inconsistencies set forth in Probate Code sections 15306.5 and 15307.

Probate Code Section 1310, Subdivision (b): Its Uses and Potential Abuses

Probate Code section 1310, subdivision (b), where necessary to avoid injury to a person or estate, allows for the immediate enforcement of an order notwithstanding an appeal of that order. This article examines the limitations and consequences of its use.

Tips Of The Trade: Getting The Most Out Of Form Interrogatories: Helpful Tips And Common Pitfalls To Avoid

Form interrogatories are not tailored for use in trusts and estates matters. This article provides practical tips on the use of the standard Judicial Council “Form Interrogatories – General” in trust and estate litigation for both propounding parties and responding parties.

Volume 25, Issue 1 • 2019

Wine Not? The New California Trust Decanting Act

The California Uniform Trust Decanting Act became effective on January 1, 2019, and applies to trusts created before, on, or after January 1, 2019. This article explores all aspects of the new law, including decanting applicability, decanting under expanded distributive discretion, decanting under limited distributive discretion, tax limitations, procedural requirements, decanting petitions, and other issues.

International Estate Planning: Traps and Tips For the Domestic Estate Planner

This article provides an overview of common international trust and estate issues, and the rules and best practices that even the most domestic of estate planners should know.

A Lawyer Is a Lawyer Is a Lawyer

The California Supreme Court’s refusal to adopt ABA Model Rule 1.14, which allows attorneys to take limited action to protect their clients with diminished capacity, sends a strong message to California Probate Courts that using a court-appointed attorney to educate the court is not allowed.

2018 Legislation: From Transfer on Death Deeds to Decanting, What a Year, What a Year!

Our annual summary of the new California laws of interest to trust and estate planning professionals.

Tips of the Trade: Ensuring That Your Client Truly Understands the Extent of Mediation Confidentiality

Determining that lawyers need to advise their clients of the extent of mediation confidentiality, the Legislature enacted new disclosure requirements for lawyers to give to their clients before their clients engage in mediation. This article gives practitioners advice how to comply with these new requirements.

Volume 24, Issue 4 • 2018

Autopsy of a Trusts and Estates Case: The Appellate Doctor Is In

This article discusses the appellate process for trusts and estates litigation matters. Considering the standard of review, avoiding waiver, and preserving or avoiding the record through the use of the statement of decision and the use or avoidance of court reporters are issues for practitioners to consider while still at the trial level.

The “Empty Chair”: How To Account for the Rights of Contingent Remainder Beneficiaries in the Event of Incapacity

When a settlor of a revocable trust has become incompetent, is the successor trustee accountable only to the settlor? Or, should the fiduciary be accountable to contingent beneficiaries in order to protect the settlor? This article explores these two points of view under California law and the Uniform Trust Code.

An Estate Planner’s Guide to Family Law Presumptions

With the potential for divorce and trust and probate litigation, estate planners need to consider various presumptions that apply to testamentary documents, property characterizations, marital-property transfers and attempted transmutations. This article provides an overview of the California presumptions in these areas so estate planners can evaluate the various risks and safeguard their clients’ testamentary wishes.

Domesticating Foreign Trusts: The Trust, Tax, and Ethical Considerations in Bringing Foreign Trusts Home

The process of moving a foreign trust from a foreign jurisdiction to the United States is called “trust domestication.” There are many reasons for domesticating a foreign trust, but practitioners must consider the trust, tax, and ethical considerations before undertaking this transaction. This article explores many of these concerns and offers potential solutions when problems are encountered.

Tips of the Trade – Using the Statement of Decision to Maximize Your Chances of Winning a Trust or Probate Appeal

Understanding statements of decision and the strategic opportunities they present is especially valuable for lawyers who handle Probate Code proceedings, where court trials are common and where there are more appealable orders than in civil cases. These Tips provide a roadmap of the process and key considerations along the way.

Volume 24, Issue 3 • 2018

Tips of the Trade – Senate Bill 2 Imposes Additional Recording Fees Statewide: What Practitioners Need to Know to Avoid a Showdown with the Recorder

Effective January 1, 2018, the California Legislature enacted Senate Bill 2 providing a fee of $75 to be paid when recording instruments related to real property. However, SB 2’s language raises many more questions than it answers. This article describes the bill, the express and implied exemptions, and explores some practical strategies for compliance.

Cryptocurrencies and Trustees’ Duty to Invest Prudently: Navigating Fiduciary Duties in the Age of Decentralization

The advent of blockchain technologies—such as cryptocurrencies, like Bitcoin—has left trustees and other fiduciaries increasingly responsible for managing estates that contain investments in a burgeoning asset class that challenges conventional notions of a prudently managed investment portfolio. This article explores what these new technologies are and what they demand of fiduciaries, and it offers guidance on how longstanding investment and related fiduciary duties apply in the shifting landscape governing crypto investments.

Back to the Future: How to Look at an Amendment Contest After Aviles V. Swearingen

This article provides a practical framework and eight pocket-scenarios for estate planners and litigators to gauge whether a challenge to an instrument’s amendment triggers a no contest clause. Multiple documents, including those signed previously, are relevant to the no contest clause analysis. As the author explains, an attorney must look straight, forward and back to determine whether a no contest clause is effective.

The Intersection of Death And Divorce: Where Probate and Family Law Collide

This article identifies areas of probate and family law intersection to assist practitioners in knowing relevant statutes and case law applicable to resolving a decedent’s property rights before the family or probate courts. This article will guide both probate attorneys and litigators who represent a personal representative, surviving spouse, heir or beneficiary.

Volume 24, Issue 2 • 2018

Tips of the Trade: How To Help Clients Avoid Taking Cryptocurrency To The Crypt

2017 Legislation: From Planning to Partnerships, Principal and Income to Proofs of Service: a Plethora of Promulgated Principles Practitioners Must Practice Proficiently

Legislation in 2017 was far ranging, affecting planners, administrators, and litigators alike. This article is a must-read for every practitioner.

Internal Revenue Code Section 2701 and Carried Interest Planning – The Basics

In wealth transfer planning, a key consideration is understanding the value, current and future, of an asset. This article explores the gift-tax value of carried interests in privately-held corporations or partnerships in the context of intra-family transfers and the planning opportunities and pitfalls these interests create. Find out how to avoid triggering IRC Section 2701 special valuation rules when transferring carried interests.

After Winning the Battle, Winning the War: A Review of Attorney Fee Claims

When can a party prevailing in probate, trust, or conservatorship litigation shift the attorneys’ fees to another party or to the estate or trust and what standards apply? This article reviews California statutes and cases that authorize courts to deny fees to fiduciaries or to implement fee shifting among the parties in trust and estate cases. The article also discusses the various ways that the probate court, as a court of equity, can charge fees against unreasonable actors, including objecting beneficiaries.

MCLE Article: The Evolution and Use of the POLST—Physician Orders for Life-Sustaining Treatment—in California

This article reviews the POLST model as it has developed in California, explains its purpose and legislative history, and describes the context in which POLST operates, including other relevant laws and decision-making mechanisms. The article outlines the complex circumstances in which a POLST may be relevant and useful, and offers practical tips for an estate planning lawyer wanting to help clients use a POLST to engage in effective advance care planning.

Volume 24, Issue 1 • 2018

The (Folstein) Mini-Mental State Exam: Just How Useful is it for
Assesing Capacity?

Trust and estate planners and litigators often have to assess a client’s cognitive abilities to determine testamentary capacity and/or issue of undue influence. Yet, the gold standard for assessing cognitive capacity – a comprehensive neurocognitive assessment by a licensed psychiatrist, neurologist or geriatrician – may be cost prohibitive or overkill. This Article explores the benefits and limits of less expensive cognitive screening tools.

California End of Life Option Act

The enactment of the End of Life Option Act made California the fourth state to authorize treating physicians to prescribe lethal medications to patients with terminal diseases. This article provides an overview of this controversial Act, explains its constitutional and statutory underpinnings, details its deficiencies, and ends by discussing current legal challenges.

Tax Me or Don’t… But Stop Stringing Me Along After Estate of Powell, Is Gifting with Strings Attached Permissible?

In Estate of Powell v. Commissioner, the court held for the first time that retention of a limited partnership interest can also be the retention of the right to control the enjoyment of transferred property under Internal Revenue Code Section 2036(a)(2). The Powell court also valued the entity assets’ appreciation from the transfer date to the date of death in a manner that may result in double taxation. Lawyers need to know the pitfalls of 2036(a)(2) set forth in the Powell case.

Achieving a Better Life Experience (ABLE) Accounts: A New Planning Tool for Persons with Disabilities

This article discusses ABLE account eligibility and compares ABLE account types. ABLE accounts allow disabled persons to control their own money, tax free, without jeopardizing their public benefits. For the first time, disabled persons can save and control their own money for their future expenses.

Volume 23, Issue 4 • 2017

Accessing the Black Box – What Every Estate Attorney Needs to Know About Attorney-Client Privilege

When a practitioner becomes involved in litigation in a trust or estate proceeding, knowledge of the application of the attorney-client privilege is essential. This article explores the attorney-client privilege in trust and estate matters, the growing trend towards disclosure, and the caution that should be taken by practitioners and trustees when distinguishing the types of communications exchanged.

MCLE Article: Don’t Answer that! Spouses, Families, and Privilege

What are the rules that apply to communications when the practitioner is performing services on behalf of spouses or multi-generational clients? This articles provide guidance on identifying the client and the potential conflicts which could arise in situation with multiple clients and the application of the attorney-client privilege when dealing with third-party intermediaries.

Land of Confusion: Attorney-Client Privilege and Duty of Confidentiality in Guardianships and Conservatorships

This article discusses the general rules applying to privilege and confidentiality in the attorney-client relationship, how those rules differ in the context of a conservatorship or guardianship, and proposes guidelines in charting a course through the difficult waters the practitioner encounters when navigating through such territory.

Fly on the Wall: Discovery of Attorney Fee Statements

In trust administrations, practitioners routinely maintain records of the services provided to their clients and generate invoices for payment by the fiduciary. What if a beneficiary wants to obtain copies of the invoices? This article discusses the rules in various jurisdictions, public policy issues, and potential solutions for maintaining privilege, yet providing sufficient information for a beneficiary to assess the reasonableness of the fees.

Volume 23, Issue 3 • 2017

Tips of the Trade – Children Are The Enemy

Our clients’ children are often of great help in getting their parents to engage in estate planning. However, too often we overlook the pitfalls that the children present to us as practitioners.

The Revolution in California’s Medi-Cal Recovery Program

Recovery in the state’s Medi-Cal program has undergone a significant change, greatly reducing services for which the state can recover and the scope of assets that are subject to recovery. This article summarizes the history of recovery in California, explains the recent changes in the program, and offers strategies on how beneficiaries and their families can avoid recovery.

Assessing and Litigating Pre-Death Trust Contests: Perils, Pitfalls, and Strategies

In Drake v. Pinkham, the Court of Appeal held that pre-death trust contests were not only permitted in certain circumstances but also may be barred by laches if not brought during the settlor’s lifetime. This article explores the Drake holding, highlights the differences between litigating pre-death and post death trust contests, and offers practical guidance for navigating this new landscape.

Intellectual Property and Estates: Where Creativity and Planning Intersect

This article deals with copyrights, trademarks, patents and the right of publicity as they pertain to estate planning: what they are, what laws apply, and how they should be dealt with in an estate.

Get Out, Get Out, Whoever You Are! How to Oust Occupants From Trust, Estate, or Conservatorship Real Property

When an occupant refuses to relinquish possession of real property, the fiduciary’s attorney should examine whether to file an unlawful detainer, an 850 petition, or an action in ejectment. Unlawful detainers can only be filed against “tenants,” but 850 petition or ejectment actions, or both, may be filed against any type of occupant. The article defines each type of action, suggests factors for deciding which action or combination of actions to file, and cautions the fiduciary from simply changing the locks on wrongful occupants of trust, estate, or conservatorship real property.

Volume 23, Issue 2 • 2017

Tips of the Trade – Planning For Digital Assets
By Thomas Shaver, Esq.

This column discusses a systematic approach to help attorneys assist their clients in understanding and taking advantage of the planning opportunities under the new Revised Fiduciary Access to Digital Assets Act, and to assist fiduciaries in dealing with digital assets in post-death administrations.

Planning For Digital Assets in California, Now With Less Uncertainty!
By Michael Rosen-Prinz, Esq.

California has recently enacted the Revised Uniform Fiduciary Access to Digital Assets Act. RUFADAA provides guidance for California residents seeking to authorize disclosure of digital assets to fiduciaries. This article, in turn, provides guidance to California estate planning attorneys as to the new law and how they can best assist their clients with planning for digital assets.

Subtracting Insult From Injury: How You Can Use California’s “Survivor Bill of Rights” To Protect the Homes of Grieving Heirs
By Lisa Sitkin, Esq.

Successors in interest to residential properties encumbered by mortgages often face difficulties communicating with the loan servicer and obtaining critical information and assistance they need in order to hold on to the family home. In response to this problem, the California legislature recently enacted a law that provides guidance to loan servicers and protections to surviving heirs.

Reports of Their Death Are Greatly Exaggerated: The Viability of No Contest Clauses Against Direct Contests Brought Without Probable Cause
By Andrew Zabronsky, Esq. and Naznin Bomi Challa, Esq.

An analysis of “probable cause” under the 2010 revisions to the No Contest Clause Law. The authors make the case that no contest clauses retain far more potency than many practitioners have come to believe.

Private Annuities Are Fun
By Bruce Givner, Esq. and Owen Kaye, Esq.

Private annuities are potential estate tax miracles: they make the estate tax go to zero (as to the assets being sold) as soon as the sale between the parent and the children’s trust is completed. That alone makes them fun for lawyers and their clients. Explore situations in which you can do more of them.

From the Chair
By Gina Lera, Esq.

From the Editor-in-Chief
By Ellen McKissock, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine M. Swafford, Esq., Matthew R. Owens, Esq., and Courtney A. Sorenson, Esq.

Spring 2017 Tax Alert
By James M. Allen, Esq.

Volume 23, Issue 1 • 2017

Tips of the Trade: Qualifying for the Parent-Child Exclusion By Selling Trust Property to a Beneficiary Pursuant to a Right of First Refusal
By Yvonne A. Ascher, Esq.

Parents frequently leave the family home or other real property to their children at death. When a child wishes to purchase the distributive shares of the other beneficiaries, the purchase may result in a property tax increase. The author explains how a right of first refusal allows a child to acquire the entire property and still qualify the transfer for the parent-child exclusion.

The Planning, Administration, and Litigation of the “HEMS” Standard
By Krista Conover, J.D., Erin N. Kolko, Esq., and Christine M. Kouvaris, Esq.

This article explores three aspects of the frequently used health, education, maintenance, and support (“HEMS”) standard that are crucial for practitioners to understand: how to draft the language, how to administer the trust as a trustee, and how to interpret the language during litigation.

Avoiding the Knot: Estate and Tax Planning for Unmarried Couples
By Nicole M. Pearl, Esq., and Elham Ardestani, Esq.

Couples who chose not to marry forgo property rights, health insurance, tax benefits and inheritance rights. This article warns practitioners of the income and gift tax implications raised in a non-marital relationship, and suggests some estate planning techniques that can uniquely benefit the non-married couple.

Luke, I Am Your Adoptive Father: Adult Adoptions and Inheritance – Contracting With Your “Parents”
By Robert Barton, Esq. and Mary K. deLeo, Esq.

Practitioners should be aware of California’s adult adoption framework so they can properly advise their clients when preparing estate plans or litigating cases involving adult adoptees.

MCLE Article:
Conservatorship Accountings II: Market and Carry Values, Inventory and Appraisal, Bonds, and Using the Judicial Council Accounting Schedule Forms

By Patricia A. Wenthe

This article provides an overview of the most-often misplaced and misunderstood transactions in conservatorship accountings, use of market and carry values, preparation of the Inventory and Appraisal and a review of the mandatory use requirements for the Judicial Council accounting schedule forms.

Volume 22, Issue 4 • 2016

Tips of the Trade: Transferring Public Stock to a Private Foundation
By Michael P. Varela, Esq. and Richard Schachtili, Esq.

Tips of the Trade is a new column appearing in the Quarterly, providing attorneys practical tips that might be of use in their practice. In this issue the authors discuss digging deeper into the stock of the company to determine if it is a qualified appreciated stock.

“I Do … Owe You What Now?”: Spousal Fiduciary Duties and Their Impact on Trust and Estate Practitioners
By Robert Gorini, Esq., Ryan Cunningham, Esq. and Michael Gorini, Esq.

The authors examine the always-complex field of spousal fiduciary duties, with a particular focus on the recent Lintz v. Lintz decision’s burden-shifting application of those duties in the context of an estate plan.

California Could Say No to Nings And Don’t to Dings
By Justin T. Miller, Esq., and W. Martin Behn, Esq.

Incomplete gift non-grantor trusts formed in states such as Delaware and Nevada (“DINGs” and “NINGs”) purport to offer California taxpayers a way to avoid, or at least defer, state income taxation in California. However, there is a possibility that the California Franchise Tax Board could find that the grantor who created the trust not only is subject to state income taxes on the trust’s net income, but also is subject to substantial interest and penalties.

An Overview of Nevada’s Beneficial Trust Laws: What Every California Practitioner Should Know Before Heading East
By Julia S. Gold, Esq.

Many California attorneys are being asked about planning options such as Dynasty Trusts or decanting, and have to look to other jurisdictions. These are all available in neighboring Nevada. This article provides a summary of Nevada’s laws that may be helpful to California attorneys and their clients.

From the Chair
By Gina Lera , Esq.

From the Editor-in-Chief
By Ellen McKissock, Esq.

Fall 2016 Tax Alert
By James M. Allen, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine Swafford, Esq., and Matthew R. Owens, Esq.

Volume 22, Issue 3 • 2016

The New Basis Reporting and Consistency Regime (IRC sections 6035 and 1014(f))
By Michael C. Gerson, Esq.

Effective August 1, 2015, new tax legislation imposes on executors a duty to provide basis information on beneficiaries and a duty of consistency on those beneficiaries for their income tax reporting of inherited assets. This article discusses how to comply with, and the questions left unanswered by, the new laws. It also distinguishes between “value” and “basis” in complying with the new laws. The author will write a companion piece once the final regulations are issued.

Quasi-Judicial Immunity in Conservatorships: A Guide for Court-Appointed Counsel for Conservatees and Proposed Conservatees
By Sarah A. Brooks, Esq., Michelle L. Barnett, Esq., and Charles M. Riffle, Esq.

This article explores the notion that court-appointed counsel should have quasi-judicial immunity. Critical to the analysis is the open question in California—whether the duty of court-appointed counsel is to follow the wishes of his client strictly or to act in his client’s best interests if they conflict with the client’s wishes, as a de facto guardian ad litem. The authors make recommendations to counsel and suggests the need for legislative guidance.

Conservatorship Accountings: How to Get Started and What to Tell Your Clients to Stay on Time!
By Patricia A. Wenthe
The author provides practical tips for preparing conservatorship accountings, and practice issues related to those accountings that often are discovered by experienced practitioners who handle conservatorships or prepare fiduciary accountings for conservators. As the title suggests, the article reviews actions and client discussions that should take place at the beginning of the fiduciary representation — discussions that will result in a less complicated administration and a more efficient accounting process.

Party Competency in Mediation: An Ethical Brain Teaser
By Paul Fisher, Esq., and Neil Solarz, Esq.

An ethical conundrum is posed in mediation when a party’s capacity is a subject of the dispute. The authors pose questions that will keep the reader thinking well after he finishes the article.

From the Chair
By Patrick A. Kohlmann, Esq.

From the Editor-in-Chief
By Elizabeth T. Pierson, Esq.

Summer 2016 Tax Alert
By James M. Allen, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine Swafford, Esq., and Matthew R. Owens, Esq.

Volume 22, Issue 2 • 2016

Inside this Issue: Litigation Symposium

It’s Time To Exempt No-Contest Clause Enforcement Proceedings from the Reach of the Anti-SLAPP Statute
By Douglas E. Lawson, Esq. and Eunice Y. Lim, Esq.

The application of California’s anti-SLAPP statute to no-contest clause enforcement proceedings thwarts the purpose of the statute, turns precedent on its head, and creates an unfair advantage for parties seeking to invalidate testamentary instruments. The Legislature has shown a willingness to amend the anti-SLAPP statute as needed, and the interests of justice demand a change now.

Bien-Venue: Commencing Trust-Related Litigation in the Proper County
By Bryan L. Phipps, Esq.

The proper venue for filing actions involving trusts under Probate Code section 17200 is fairly straightforward – the principal place of administration. Analyzing venue in a case containing trust claims becomes complicated when civil causes of action are simultaneously pled. This article examines the sometimes-conflicting venue provisions applicable to trust-related litigation contained in the Probate Code and Code of Civil Procedure, and it considers whether Probate Code section 17005 overrules the venue provisions for civil actions despite the mixed action rule.

Remedies for Elder Financial Abuse
By Vivian L. Thoreen, Esq., Christopher D. Carico, Esq., and David G. Knitter, Esq.

A follow up to an article from Issue 20-1 on Elder Abuse, this article explains the remedies, both through litigation and alternatives to litigation. The authors examine strategies, including choosing between the probate court and civil court, injunctive relief, and accounting issues. Enhanced remedies under various consumer protection laws are discussed, along with Probate Code provisions for double damages and disinheritance.

Quasi-Judicial Immunity in Conservatorships: A Guide for Conservators and their Counsel
By Michelle L. Barnett, Esq., Charles Riffle, Esq., and Sarah Brooks, Esq.

This article discusses the role of a conservator and its quasi-judicial nature. Exploring the questions whether there is a need for a conservator to have quasi-judicial immunity and whether it is appropriate, the authors distinguish between the functions and relevant statutes pertaining to conservators of the person and conservators of the estate, and provide suggestions for best practices for the practitioner.

California Legislation 2015: Probate Estates, Trusts, Guardianships and Conservatorships
By James R. Birnberg, Esq.

The Legislature was busy in 2015. Here are the highlights of changes that trust and estate
practitioners need to know.

From the Chair
By Patrick A. Kohlmann, Esq.

From the Editor-in-Chief
By Elizabeth T. Pierson, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine Swafford, Esq., and Matthew R. Owens, Esq.

Tax Alert
By James M. Allen, Esq.

From the Chair
By Gina Lera

From the Editor-in-Chief
By Ellen McKissock, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine M. Swafford, Esq., Matthew R. Owens, Esq., and Courtney A. Sorenson, Esq.

Tax Alert
By James M. Allen, Esq.

Issue 1 2016 – Volume 22, Issue 1

Marrying Into Elder Abuse
By Ellen McKissock, Esq.

Marriage, particularly confidential marriage, has become a troubling form of elder abuse, because it gives the perpetrator intestacy and control rights over the victim’s estate. The presumptions favoring the institution of marriage, and the minimal capacity required to marry legally, make an abusive marriage extremely difficult to prevent or terminate. The author examines this trend and options for reform.

Revocable Transfer on Death Deeds: California’s Experiment With a New Method of Nonprobate Transfer
By Mark S. Poochigian, Esq. and Erin L. Prouty, Esq.

The revocable TOD deed has become a statutory option in California. The authorizing legislation has many shortcomings and these deeds will leave many titles clouded. There are numerous questions to be answered, particularly with respect to the rights of spouses and creditors, and restitution rights of the deed creator’s estate. The authors analyze the legislation, explore the major uncertainties created by TOD deeds, and offer suggestions for practitioners who will encounter them in their practices.

Busting the Bypass: Simplifying Irrevocable Trusts
By Daniel G. Brown, Esq. and Jennifer M. Stier, Esq.

With the increased estate tax exemption and the permanence of portability, a bypass trust may no longer make sense for a smaller estate, at least for tax reasons. The article examines the pros and cons of the bypass trust and the means to avoid or eliminate a bypass trust in various situations.

529 Plans: A Useful Tool For Every Estate Plan
By Joelle M. Drucker, Esq.

Many parents, grandparents, and others establish 529 plans to help family members save for college expenses. The unique estate, gift, and income tax aspects of these plans are detailed in this article. The article discusses and compares alternative techniques and the potential impact of 529 plans on financial aid eligibility.

From the Chair
By Patrick A. Kohlmann, Esq.

From the Editor-in-Chief
By Elizabeth T. Pierson, Esq.

Tax Alert
By James M. Allen, Esq.

Issue 4, 2015 – Volume 21, Issue 4

Make No Mistake — Estate of Duke Allows Reformation of Unambiguous Wills
By Jeffrey Loew, Esq. and Steve Braccini, Esq.

In Estate of Duke, the California Supreme Court cast aside stare decisis to permit the reformation of the unambiguous terms of a will to comport with clear and convincing evidence of the testator’s intent. The authors examine the Court’s approach in this groundbreaking decision.

Yellow Light: Trustee May Follow Authorization to Defend Contested Amendment Until Enjoined by Probate Judge
By Jeffrey S. Galvin, Esq.

Trust amendments often have terms authorizing defense of the terms of the amendment at the expense of the trust. The recent Doolittle decision approved such a clause, although the Court of Appeal provided that a probate court may issue a preliminary injunction against the use of trust funds for such a defense, after weighing the equities and upon the beneficiaries’ making a proper showing of the likelihood of success.

Until Death Do Us Part: Marital Property Characterization in the Postmortem Setting
By James P. Lamping, Esq.

Property characterization is frequently among the most hotly contested issues when a marriage ends in divorce. However, it is often glossed over when a marriage is instead ended by death. This article examines the authority relating to property characterization in the postmortem setting, including legislative history which reveals that the rules are not as clear-cut as some would believe.

Fiduciaries (And Others) Beware — An Over-Reaching Release May Be Voidable
By Christopher D. Carico, Esq. and Golnaz Yazdchi, Esq.

A release by a beneficiary of a trustee concerning administration of a trust will often be voidable unless it is fair and reasonable under the circumstances, with the burden of proof as to reasonableness and fairness on the trustee. The authors discuss the issues and provide sample language to include in a release to bolster enforceability.

From the Chair
By Patrick A. Kohlmann, Esq.

From the Editor-in-Chief
By Elizabeth T. Pierson, Esq.

Litigation Alert
By Mary Gillick, Esq., Catherine Swafford, Esq. and
Matthew R. Owens, Esq.

Tax Alert
By James M. Allen, Esq.

Issue 3, 2015 – Volume 21, Issue 3

California Income Taxation of Trusts and Estates
By Richard S. Kinyon, Esq., Kim Marois, Esq. and Sonja K. Johnson, Esq.

The authors present a detailed examination of the principles of California fiduciary taxation. Focused on the treatment of irrevocable, non-grantor trusts, the article also includes a brief overview of California’s taxation of the income of estates and administrative trusts and a technical guide to complying with California income tax reporting and withholding requirements.

Allocating Generation-Skipping Transfer Tax Exemption
By Beth Shapiro Kaufman, Esq. and Megan E. Wernke, Esq.

Practitioners can easily and inadvertently make improper and imprudent generation-skipping transfer tax exemption allocations as a result of the complexity of the law and deficiencies in the form provided by the IRS for making the allocations. This article provides a practical, step-by-step examination of the allocation of generation-skipping transfer tax exemption on Form 709, and identifies best practices to avoid common allocation errors.

A Proposal to Modify the Disclaimer Timing Requirements of Internal Revenue Code Section 2518
By Trent S. Kiziah, Esq.

A review of the timing requirements for making a qualified disclaimer under Internal Revenue Code section 2518, including discussion of the authorities requiring that a qualified disclaimer be made within nine months of the creation of the interest, even when the interest created is contingent and non-possessory. The author puts forth a proposal to modify section 2518 to allow for a qualified disclaimer to be made within nine months of the date on which the interest becomes indefeasibly vested in the beneficiary.

So You Want to Be a Foreign Grantor Trust: Special Rules
By Nancy E. Howard, Esq.

This article explains the benefits of foreign grantor trust status—including the taxation of the grantor (and not the trust beneficiaries) on the trust income, the avoidance of severe throwback rules applicable to U.S. beneficiaries of foreign trusts, and attribution of passive foreign investment company (PFIC) stock to the non-U.S. grantor as opposed to U.S. beneficiaries of the trust—and how planners can use foreign grantor trusts to assist their clients. The author examines the qualification requirements, addresses selected issues, and identifies some areas where practitioners should exercise caution.

U.S. Transfer Tax System and the Non-U.S.-Citizen Spouse
By Cynthia D. Brittain, Esq.

The author notes the transfer tax impediments to transfers from a U.S. spouse to a non-U.S.-citizen spouse, and also reviews the opportunities available to transfer significant assets to a non-U.S.-citizen spouse in a tax-advantaged way.

From the Chair
By Jeremy B. Crickard, Esq.

From the Editor-in-Chief
By Mark S. Poochigian, Esq.

From the Symposium Managing Editor
By Erin L. Prouty, Esq.

Tax Alert
By James M. Allen, Esq.

Issue, 2, 2015 – Volume 21, Issue 2

From the Chair
By Jeremy B. Crickard, Esq.

From the Editor-in-Chief
By Mark S. Poochigian, Esq.

A Primer for California Art Collectors
By Joan M. Cotkin, Esq., Michael Heumann, Esq., Elizabeth T. Pierson, Esq., and Douglas W. Schwartz, Esq.

This article offers a comprehensive treatment of legal issues of interest to California art collectors and practitioners who advise them. From the initial stage of acquiring art by a collector client, through the disposition of the art by the collector client–whether by sale, gift, bequest or otherwise–the authors discuss issues that practitioners should consider, and offer practical solutions for trusts and estates practitioners to employ when planning for the disposition of art.

Establishing a Conservatorship Based Upon Undue Influence: A Practitioner’s Guide
By David G. Knitter, Esq., and Mary K. deLeo, Esq.

Conservatorship cases based on undue influence often involve only circumstantial evidence. The practitioner must understand the indicia of undue influence and the relevant evidentiary rules. These fact-intensive cases require that the evidence of undue influence be presented to the court in a cohesive way that persuades the court that protection of the proposed conservatee is necessary. The authors explore ways for practitioners to present persuasive conservatorship petitions based on allegations of undue influence.

The Uncertain Future of Estate Planning for Digital Assets in California
By Michael Rosen-Prinz, Esq.

Litigation Alert
By Mary F. Gillick, Esq., Catherine M. Swafford, Esq., and Matthew R. Owens, Esq.

Trusts and estates practitioners are increasingly confronting issues raised by their clients’ digital assets. Planning for these assets can be difficult, made worse by the impediments to planning for digital assets, some of which are driven by the uncertainty and lack of adequate legislation governing the administration of digital assets. This article provides a summary of the challenges relevant to planning and administration of digital assets, examines competing efforts in the current legislative session to address certain issues, and offers some suggestions for planners.

Issue, 1, 2015 – Volume 21, Issue 1

From the Chair
By Jeremy B. Crickard, Esq.

From the Editor-in-Chief
By Mark S. Poochigian, Esq.

The Passport to Relief: The Court’s Power to Excuse Trustee Liability
By Matthew P. Matiasevich, Esq.

The court’s authority to excuse liability for breach of trust is often overlooked by trustees who face the threat of surcharge and their counsel. Practitioners should be aware of the court’s authority in this regard–the doctrine of equitable excuse, which has been codified in Probate Code section 16440, subdivision (b)–and the underlying required factual predicates.

Application of the Harmless Error Doctrine in California and Beyond
By Jessica A. Uzcategui, Esq.

The modern trend has been to relax the formalities required in connection with the execution of a will to require only substantial compliance with the requirements. The evolving harmless error doctrine departs even more significantly from insistence on compliance with formalities by allowing a court consider evidence of the decedent’s intent. This article examines the balance that courts attempt to strike between carrying out the decedent’s intent even absent compliance with the relevant formalities and the potential for fraud and abuse if compliance with formalities is excused.

Nonprobate Transfers: Considerations for Estate Planning and Administration
By Danielle E. Miller, Esq.

This article explores options for transferring assets at death without a will or trust and without a formal probate or trust administration. These rules apply to California decedents of all levels of wealth who die without an estate plan, and for decedents who have a funded revocable trust but also own assets outside of the trust, such as retirement plans, joint tenancy accounts, and motor vehicles.

Considerations Related to the Operation or Reorganization of a Business by a Trustee during Administration
By Jenny Hill Bratt, Esq., and Karl F. Mill, Esq.

Many practitioners incorrectly assume that the powers generally conferred on trustees under California law include the power to operate or reorganize a business. This article examines the scope of the trustee’s power to operate or reorganize a business under California law, and the limited decisional authority on point.

When a Psychotherapist Dies or becomes Incompetent, Time is of the Essence and Patient Privacy is Paramount
By Gadi Zohar, Esq.

Private practice psychotherapists–which includes physicians, psychologists, social workers, and marriage and family therapists–or their estates can be held liable for failing to properly plan for death or incapacity. This article examines the primary concerns of the (1) immediate referral of existing patients to clinicians for continued care, and (2) proper maintenance and destruction of clinical records. This article further provides suggestions for attorneys dealing with the planning or administration of a psychotherapist’s estate.

Litigation Alert
By Mary Gillick, Esq.

Tax Alert
By James M. Allen, Esq.

Issue, 4, 2015 – Volume 20, Issue 4

From the Chair
By Jeremy B. Crickard, Esq.

From the Editor-in-Chief
By Mark S. Poochigian, Esq.

Sunrise, Sunset: What to Do About a Trustee with Diminishing Capacity
By John A. Hartog, Esq

California Conservatorship Jurisdiction Act: New Rules for Resolving Interstate Jurisdiction
By Jennifer L. Wilkerson, Esq., and Linda S. Durston, Ph.D., Esq

The State of Title Insurance Five Years After Kwok
By Patrick A. Kohlmann, Esq.

Litigation Alert
By Mary Gillick, Esq.

Tax Alert
By James M. Allen, Esq.

Issue, 3, 2015 – Volume 20, Issue 3

From the Chair
By Bart J. Schenone, Esq.

From the Editor
By Mark S. Poochigian, Esq.

Proposition 13, California Property Taxes, and Planning for Family-Owned Businesses: The Change in Ownership Rules for Real Property and Legal Entities Held in Trust
By Matthew F. Burke, Esq.

Death of a Litigant: What is a Trusts and Estates Litigator to Do?.
By Stacie P. Nelson, Esq., and Lydia Lee Lockett, Esq.

2014 California Legislation Affecting Probate Estates, Trusts, Guardianships and Conservatorships
By James R. Birnberg, Esq., and Karl F. Mill, Esq.

Tax Alert
By James M. Allen, Esq.

Issue, 2, 2014 – Volume 20, Issue 2

From the Chair
By Bart J. Schenone, Esq.

From the Editor
By Mark S. Poochigian, Esq.*

Bringing Beneficiaries to the Mediation Table: Drafting Enforceable Trust Provisions Requiring Mediation of Disputes During Post-Death Trust Administration
By Christopher D. Carico, Esq., and Golnaz Yazdchi, Esq.

California Income Tax Issues for Non-California Trusts – Part 2
By Matthew G. Brown, Esq., David L. Keligian, Esq., and Gregory E. Lambourne, Esq.

Two Easy Ways to Trigger a No Contest Clause by Accident
By Noël Margaret Lawrence, Esq.

Qualifying as a Trade or Business Under the Final Net Investment Income Tax Regulations.
By Thomas W. Shaver, Esq.

Tax Alert
By James M. Allen, Esq.

Issue, 1, 2014 – Volume 20, Issue 1

A Tribute to Neil Horton
By Bart J. Schenone, Esq.

From the Editors
By S. Andrew Pharies, Esq. and James P. Lamping, Esq.

What Every Trusts and Estates Practitioner Needs to Know About Elder Financial Abuse
(Page 5)
By Vivian L. Thoreen, Esq., and David G. Knitter, Esq.

An overview of the law concerning elder financial abuse, and practical tips to assist the trusts and estates practitioner to better identify abusive situations.

Long-Term Care Medi-Cal on the Cusp of the Deficit Reduction Act and the Affordable Care Act
(Page 21)
By Peter S. Stern, Esq.

What your clients and their family members who are confronting nursing home care under Medi-Cal will have to deal with as California edges toward adopting regulations to implement the Deficit Reduction Act regulations and copes with expanded Medi- Cal under the Affordable Care Act.

Elder Abuse Restraining Orders – A Practical Guide
(Page 32)
By Kirsten Voyles, Esq., and James Treggiari, Esq.

Elder abuse restraining orders can be effective tools to protect clients or the seniors in their care. This article defines elder abuse and provides an overview of elder abuse restraining orders.

Educating Seniors Project: Alerting Consumers to the Risks of Elder Financial Abuse
(Page 40)
By Jennifer Wilkerson, Esq.

The Educating Seniors Project, sponsored by the Trusts and Estates Section of the State Bar of California, informs seniors, their families, and the community about laws and resources for protection against elder financial abuse.

Spring 2014 Elder Alert
By Robyn B. Christo, Esq., Ellen Drews, Esq. and Ingrid Tung, Esq.

Issue 4, 2014 – Volume 19, Issue 4

From the Chair
By Bart J. Schenone, Esq.

From the Editor
By S. Andrew Pharies, Esq., and James P. Lamping, Esq.

Gun Laws: A Guide to Laws Affecting the Transfer of Firearms in California from Estates and Trusts
(Page 5)
By Robert Gorini, Esq., and Richard Gorini, Esq.

Fiduciaries face potential civil and criminal liability in administering estates containing firearms. This article defines the various types of firearms a fiduciary may acquire, the various laws that regulate their possession and transportation, and the classes of individuals ineligible to receive them. It addresses the limitations imposed by California law on legal entities, such as gun trusts, and provides a practical checklist for estate planning and administration.

California Income Tax Issues for Non-California Trusts – Part 1
(Page 24)
By Matthew G. Brown, Esq., David L. Keligian, Esq., and Gregory E. Lambourne, Esq.

Recent IRS private letter rulings approved irrevocable incomplete-gift nongrantor trusts (ING trusts) for federal tax purposes. California is no stranger to this type of planning. In Part 1 of this two-part article, we review California’s broad power to tax trusts with California-source income or resident fiduciaries, including advisors or protectors. In Part 2, we will review California taxation of trusts with resident beneficiaries, California’s throwback rules, self-settled trusts, and state taxation limitations imposed by the U.S. Constitution.

Estate Planning Considerations for California Same-Sex Couples in a Post-Windsor and Post-Proposition 8 World
(Page 32)
By Chelsea J. Suttmann, Esq., and Trisha A. Vicario, Esq.

As same-sex unions gain legal recognition, both federally and at the state level, same-sex couples have begun unifying their estate plans. Past legal uncertainty surrounding federal and state recognition of such relationships encouraged many estate planners to avoid joint planning for same-sex couples. This article provides an overview of the federal and California laws pertaining to same-sex couples and offers practical planning strategies and advice to help practitioners better serve the needs of their clients in same-sex relationships.

Spring 2014 Tax Alert
By James M. Allen, Esq.

Issue 3, 2013 – Volume 19, Issue 3

2013 California Legislation Affecting Probate Estates, Trusts, Guardianships, and Conservatorships
(Page 6)
James R. Birnberg, Esq. and Karl F. Mill, Esq.

Summary of selected California legislative changes in 2013 that affect probate, trust and conservatorship practice, including, as relevant, background references.

California’s New Statutory Definition of Undue Influence – Modernization or Game Changer?
(Page 11)
Howard L. Horwitz, Esq.

Effective January 1, 2014, California has a new statutory definition of undue influence. This article addresses how the provisions of this recent enactment should be read together and in relation to existing law, particularly with respect to will and trust contests.

Obliterating the Hasso Decision: New Legislation Protects Remainder Beneficiaries But Gives Income Beneficiaries a Run for Their Money
(Page 19)
Ellen McKissock, Esq.

In the past, if an entity distributed assets valued at less than 20 percent of its gross value, trustees receiving that distribution were required to allocate it to trust income absent a contrary indication from the entity. After the Hasso decision, many saw this as a loophole that wrongly allowed principal to be converted to income. Under new amendments to Probate Code section 16350, any distribution resulting from the sale of a capital asset at the entity level, no matter how small, is allocable to principal at the trust level. This new law provides simple, clear rules that protect remainder beneficiaries from losing principal, but estate planners may want to think twice before placing the family business in a trust, since the rules now make it more difficult to get income from the entity to the trust.

Parental Abandonment and Intestate Succession
(Page 30)
Neil F. Horton, Esq.

California law now bars a parent who intentionally abandoned a child from inheriting from that child by intestate succession. In doing so, the Legislature balanced the need for bright line rules in order to make intestacy proceedings efficient with the goal of making rules for intestate succession that are likely to carry out a decedent’s intent.

Issue 2, 2013 – Volume 19, Issue 2

Enforcing Arbitration Clauses in Wills and Trusts
(Page 5)
Vivian L. Thoreen, Esq. and Robert Barton, Esq.

Until 2012, California law held arbitration clauses were unenforceable in will contests and disputes arising under trusts. Recent case law suggest these clauses may now be enforceable. This article briefly outlines arbitration in the context of testamentary disputes, surveys the law on the enforceability of arbitration clauses, and sets forth alternate proposals for non-judicial resolution of trust and estate disputes.

The Three Legged Stool: Simple, But Sophisticated, Estate Tax Planning
(Page 14)
Bruce Givner, Esq. and Owen Kaye, Esq.

The increase in the estate tax exclusion means most estate planning attorneys will see few estates requiring sophisticated estate tax planning structures. This articles describes an approach that is sophisticated enough to address most such plans while requiring a minimal amount of intellectual upkeep by practitioners.

SB 1021: The $50 Will Lodge Fee (Or “will lodge Tax”?)
(Page 25)
Jennifer M. Stier, Esq.

SB 1021, the Public Safety Omnibus Bill, created a $50 fee to lodge a will with the superior court. Some practitioners decry the fee as an illegal tax. This article examines the “fee or tax” debate and the impact of the fee on practitioners.

Issue 1, 2013 – Volume 19, Issue 1

Medical Decision-Making in California Long-Term Care Facilities: Health and Safety Code section 1418.8, a Mandated Alternative to Conservatorship
(Page 5)
By Robert Gibson, PhD, JD and James G. Boyd, MA, JD

No conservatorship can be established in California when a less restrictive alternative is available. Health & Safety Code section 1418.8 not only provides an alternative to a conservatorship, this article contends that its use is mandatory in applicable cases. California’s use of interdisciplinary teams provides patient-centered, supportive decision-making that is congruent with the dominant trend in disability advocacy.

How Termination of Transfer Rights Under the Copyright Law May Affect Estate Planning
(Page 12)
By Ivan Hoffman, Esq.

Federal copyright law is likely to pre-empt the wishes of the testator when the two are in conflict. This article examines whether copyrights are community property and how the practitioner should advise the client regarding copyrights in the estate planning context.

2012 California Legislation Overview for Trusts and Estates Practitioners
(Page 17)
By Gina L. Lera, Esq.

This article summarizes California legislation passed in 2012 that should be of interest to trusts and estates attorneys.

A Balancing Act: The Appropriate Role of Court Appointed Counsel in Proposed Conservatorships
(Page 22)
By Kevin M. Rodriguez, Esq.

Courts are faced with a difficult balancing act in determining whether it is appropriate in conservatorship proceedings to appoint independent legal counsel to represent a proposed conservatee who is alleged to lack mental capacity but has otherwise retained counsel on his or her own accord. This article analyzes the competing interests at issue in such situations, and recommends the use of Marsden-style hearings to protect both the proposed conservatee’s and the court’s respective rights and interests at issue therein.

Spring 2014 Tax Alert
By James M. Allen, Esq.

Issue 4, 2012 – Volume 18, Issue 4

Estate Planning After ATRA
(Page 5)
By Louis A. Mezzullo

The article covers the provisions of the American Taxpayer Relief Act of 2012 that impact estate planning. Portability of the unused exemption of the first spouse to die is explained. The article then discusses planning in light of the increased gift, estate, and generation-skipping transfer tax exemptions that are now permanent. Next, the article describes the Obama Administration proposals for fiscal year 2014 that affect estate planning. Finally, it points out the nontax services that estate planning attorneys perform for their clients that are not affected by the increased exemptions.

Windsor‘s Impact on Estate Planning And Administration
(Page 15)
By Mark S. Poochigian, Elizabeth T. Pierson, and Gretchen Shaffer

The United States Supreme Court’s decision in United States v. Windsor has many implications for trusts and estates practitioners and their clients. This article summarizes the court’s decision, and examines the primary effects that Windsor will have on estate planning and administration for same-sex couples.

Portability: The Basics and Beyond
(Page 20)
By S. Andrew Pharies and Erin E. Norberg

Portability of estate tax exemption between married couples, which was recently made permanent, provides an additional planning option and greater flexibility when creating an estate plan, but gives rise to many pitfalls and new complexities. This article reviews the basics of portability and examines methods estate planners may use to provide for the appropriate use of portability in an estate plan.

Beyond Form 1040: Tax Compliance Issues for U.S. Citizens and Residents with Interests in Non-U.S. Property
(Page 28)
By M. Read Moore

This article addresses important federal tax reporting requirements for U.S. citizens and residents who have foreign financial accounts, own interests in foreign companies, and are beneficiaries of foreign trusts and estates.

Formula Clauses After Wandry
(Page 36)
By Jeremy B. Crickard

Understanding the relevant federal court decisions is essential for practitioners using formula clauses for lifetime transfers. This article reviews relevant formula clause decisions including Wandry, and then addresses the use of formula clauses in practice providing guidance to practitioners in this developing area.

Unanticipated Estate Tax Consequences of Divorce: How to Treat an Obligation to Maintain Life Insurance
(Page 45)
By Danielle E. Miller

In administering the estate of a decedent, be mindful of any policy of insurance on the decedent’s life if that policy is required to be maintained by the decedent in connection with the decedent’s divorce. This article discusses whether the proceeds of that policy are includible in the decedent’s gross estate for federal estate tax purposes and, if so, whether an offsetting deduction may be available.

Issue 3, 2012 – Volume 18, Issue 3

Tortious Interference with Inheritance: Is It a Brave New World in California? Part II
(Page 5)
Adam F. Streisand, Esq.

The recognition for the first time in California of the tort of intentional interference with inheritance is likely just the beginning of judicial opinions defining the scope and breadth of this cause of action. In this second article of a two-part series, the author explains how other state courts have dealt with certain of the elements of this tort.

“Friending,” “Tweeting,” and “Connecting:” Ethical Issues Arising from Social Media
(Page 12)
Patrick A. Kohlmann, Esq.

With the exploding popularity of social media websites, it has become challenging to apply old ethics to the issues arising from these new media. For example, may an attorney send or direct someone else to send a “friend” request to a represented party to an action, or to an unrepresented party to that action? And, may an attorney approve a connection request from an existing client, or to a potential client?

Property Tax Consequences for Transfers of California Real Property Into, During the Course of Administration, and Out of GST Trusts
(Page 18)
Nicholas C. Fantl, Esq.

The intersection of generation skipping trusts and California property tax rules often presents challenges for estate planning practitioners. This article surveys the landscape of property tax rules, regulations and annotations to explain the property tax consequences that attend the funding of California real property into, the administration of such property within, and the distribution of California real property out of GST trusts.

Before and After: A Trustee’s Duties to Remainder Beneficiaries Before a Settlor’s Death (and After Estate of Giraldin)
(Page 29)
Steven P. Braccini, Esq. and Jeffrey R. Loew, Esq.

In Estate of Giraldin, the California Supreme Court held that remainder beneficiaries have standing, after a settlor dies, to claim a violation of a non-settlor trustee’s fiduciary duty to the settlor to the extent that the violation harmed the remainder beneficiaries’ interests. The Court reasoned that a trustee’s breach of fiduciary duty owed to the settlor can substantially harm the remainder beneficiaries by reducing the trust’s value against the settlor’s wishes. In this article, the authors analyze the impact of Estate of Giraldin and examine its potential shortcomings.

Issue 2, 2012 – Volume 18, Issue 2

Tortious Interference with Inheritance: Is It a Brave New World in California?, Part I
(Page 5)
F. Bentley Mooney, Esq.

In the first of a two-part series, the author discusses California’s newly recognized tort of intentional interference with inheritance. In this first part, the author discusses the development of the tort in California, its recognition in California by Beckwith v. Dahl and application of the tort in a famous case involving an octogenarian oil tycoon and his much younger, Hollywood starlet wife.

Kwok v. Transnation Title Insurance Company: Another Thing for Estate Planners to Worry About
(Page 13)
Adam F. Streisand, Esq.

Estate planners should add title insurance to the list of things to worry about. This article discusses the ruling in Kwok v. Transnation Title Insurance Company and explains what practitioners need to know about title insurance coverage and revocable trusts.

Reverse Mortgage v. Private Annuity: A Comparison
(Page 16)
Patrick A. Kohlmann, Esq.
Private annuities address many of the same needs as a reverse mortgage, but are not as widely understood or used by the public. This article compares costs and benefits of the two techniques and demonstrates that a private annuity may produce superior results for clients and their families.

The California Capacity Declaration — Conservatorship and Dementia Patients: A Physician’s Perspective
(Page 23)
David I. Margolin, M.D., Ph.D., J.D.

The Capacity Declaration — Conservatorship (Judicial Council Form GC-335) calls for a statement about capacity when the conservatee has dementia. This article analyzes why physicians may be unwilling to make the categorical statements regarding such a declaration and offers possible solutions to this practical dilemma.

Asset Protection Planning: Attorneys as Advisors and Targets
(Page 27)
Bruce Givner, Esq. and Owen Kaye, Esq.
Asset protection planning runs through estate planning, estate tax planning and income tax planning. For some attorneys, it is their entire practice. For others, it should not be overlooked both in counseling clients and in protecting themselves. This article analyzes important asset protection techniques that should be considered in estate planning.

  • From the Chair
    By Edward J. Corey, Jr., Esq
  • From the Editor
    By Michael C. Gerson, Esq.
  • Litigation Alert
    By Mary F. Gillick, Esq.
  • Tax Alert
    By James M. Allen, Esq.

Spring 2012 – Volume 18, Issue 1

California’s Uniform Prudent Investor Act — A Call for Legislative Review
(Page 5)
Trent S. Kiziah

In 1995, a year after the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Prudent Investor Act (1994), the California legislature enacted the Uniform Prudent Investor Act with several modifications. This article examines those modifications, places them in historical context, and opines as to whether these modifications should be replaced with the provisions of the Uniform Act. This article also examines other modifications made by other states to determine whether they should be adopted in California.

A Primer on California Residency for California State Income Tax Purposes
(Page 16)
Michael C. Gerson, Esq.

Not every individual who has left California is no longer subject to California income tax and not every individual who is in California is subject to California income tax. This article provides a primer on determining if an individual is subject to California income tax on their worldwide income.

A Summary Guide to California and Israel Estate Planning and Probate
(Page 24)
Marshal A. Oldman, Esq. and Dganit Toren, Esq.

The international aspect of probate arises when decedents accumulate assets abroad. This article examines differences between California and Israel procedures to transfer assets after death.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Tax Alert

Fall/Winter 2011 – Volume 17, Issue 3/4

2011 Legislation Report: A Successful Year for TEXCOM Bills
(Page 6)
Richard L. Ehrman, Esq. and Barry K. Matulich, Esq.

This article summarizes bills of interest to trusts and estates attorneys that were enacted during the 2011 legislative session. TEXCOM actively worked on a number of bills and monitored others of importance to the trusts and estates community.

Tulsa, Yool, Dacey and the Lingering Uncertainty in Claims Against Decedents in California
(Page 13)
Mark J. Phillips, Esq.

The Dacey case is only the latest attempt to address the reach of the one-year statute of limitations for actions against a decedent. It demonstrates that there is still much uncertainty about what claims are subject to that limit and how the statute of limitations interacts with the creditors’ claim process and its separate time limits.

Threading the Needle: SEC Defines “Family Offices” Exempt from the Investment Advisers Act
(Page 18)
Julie K. Kwon, Esq. and Edwin C. Laurenson, Esq.

Wealthy families increasingly are turning to their own family offices to manage family investment activities. This article summarizes the new SEC guidelines that govern what a family office must do to be exempt from the registration requirements of the Investment Advisers Act of 1940.

Recent Legislative Changes to the Powers of an Agent Under a Statutory Power of Attorney
(Page 23)
Rebecca Lee Tomlinson Schroff, Esq.

One of the 2011 laws that most directly affects estate planning attorneys concerns statutory form powers of attorney. Prior law did not expressly require these form documents to set forth expressly in the power of attorney the agent’s power to make gifts, change beneficiaries, or take other actions to dispose of the principal’s assets during life or at death. This article explains these and other changes to the power of attorney law that provide greater protection to the users of the statutory form.

Social Enterprise Comes to California
(Page 20)
Mark E. Powell, Esq.

Many states are experimenting with new forms of business organization that combine profit-making and public good. This article explains several of the new hybrid entities and some factors to consider in using them as part of an overall philanthropic plan.

Concerns in Dealing with Professional Fiduciary Business Entities
(Page 32)
Robert A. Gorini

The author discusses the fact that the Professional Fiduciaries Act does not provide for licensure of any professional fiduciary business entity such as a professional corporation or limited liability partnership. As a result, professional fiduciaries may not be able to validly operate through a business entity of this type or achieve the limited liability that is available to other professionals.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Tax Alert

Summer 2011 – Volume 17, Issue 2

Estate Tax Planning and the Codified Economic Substance Doctrine: An Uneasy Connection
(Page 5)
Bruce Givner, Esq. and Owen Kaye, Esq.

The economic substance doctrine has long been applied to estate and gift tax planning. However, the recent codification of that doctrine, and the increased penalties that now apply when it is violated, bring new urgency to understanding the doctrine and the ways in which it might be asserted against common estate planning techniques. The author discusses the general development of the economic substance doctrine and examines its possible application in the estate planning context.

The Andersen Twist in Trust Contests: Testamentary Capacity Standard Sometimes Applies When Document Resembles a Will
(Page 18)
Jeffrey S. Galvin, Esq.

The Andersen case addressed the important issue of the testamentary capacity that is required for a trust, rather than a will. Unfortunately, it may have raised more questions than it answered. This article examines the Andersen case in detail and discusses its implications for trusts, trust amendments and other testamentary instruments.

Does Your Client Have Testamentary Capacity? Mental Health and Memory Issues That Affect Estate Planning
(Page 25)
Elliott M. Stein, M.D., Geriatric Psychiatry

Estate planners often must informally assess a client’s competency to understand and adopt a particular plan, but most are not trained to do so. Dr. Stein’s article provides concrete suggestions for spotting behaviors or attitudes that may raise questions about a client’s capacity, and advice about how to react to warning signs of incapacity.

Pipe Dreams Can Come True: Gifting Opportunities…At Least Through 2012!
(Page 34)
Jon J. Gallo, Esq., David A. Hjorth, ChFC, CLU, AEP and Nicholas D. Hjorth, CPA, CLTC.

The (perhaps temporary) increase of the gift tax exemption to $5,000,000 and the current low interest rates used by the IRS to value certain transfers create some unique opportunities for clients to transfer wealth to beneficiaries. This article discusses three techniques – a spousal lifetime access trust, a sale to an intentionally defective grantor trust, and a charitable lead trust – that are particularly useful in today’s environment.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Tax Alert

Spring 2011 – Volume 17, Issue 1

To Bypass or Not Bypass, That Is the Question: Using a Formula General Power of Appointment Clause to Address New Estate Planning Uncertainties
(Page 5)
Clay R. Stevens, Esq. and Burton A. Mitchell, Esq.

Due to changes to the federal estate tax rules, estate planners today face a set of additional considerations regarding whether a bypass trust is necessary for a couple uncertain to face estate taxes at the surviving spouse’s death. The use of a formula general power of appointment may permit a couple to maximize their tax benefits by ensuring the lowest estate tax possible and maximizing the use of the step-up in income tax basis at death.

Investor Behavior and the Valuation of Pass-Through Entities
(Page 12)
Gregory A. Barber, CFA and R. Frederick Caspersen, Esq.

The authors demonstrate the proposition that basing the valuation of pass-through entities on investors’ real world focus on after-tax returns will yield more accurate valuations of S corporations and other pass-through businesses that do not pay tax at the entity level than the current methods that are used by the Tax Court and appraisers.

The Trust Creditors Claims Procedure: To Do or Not To Do, That Is the Question
(Page 18)
Patrick A. Kohlmann, Esq.

Probate Code section 19000 et seq. contains an optional creditors claim procedure that can be used by the trustee of a decedent’s revocable living trust during the post-death trust administration. However this process has many dangers and limited benefit, so the choice whether to use the formal claims procedure must be considered carefully. This article provides a guide to the trust claims procedure and its benefits and downsides.

No Good Deed Goes Unpunished: A Look at the Punitive Aspects of Internal Revenue Code Section 2519 and the Need for Reform
(Page 23)
Robin L. Klomparens, Esq. and Mary K. deLeo, Esq.

IRC section 2519 imposes gift tax when any part of the income interest in a QTIP trust is transferred. The statute can have unintended and punitive consequences. The authors propose amendments to allow severance of a QTIP trust and to provide a good faith appraisal defense, to relieve the harsh operation of this rule.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Tax Alert

Winter 2010 – Volume 16, Issue 4

A Practical Guide to the 645 Election
(Page 5)
James P. Lamping, Esq. and Cleet E. Snyder, CPA

Internal Revenue Code section 645 provides an election for a revocable trust to be treated as part of the decedent’s probate estate for income tax purposes. This article analyzes the technical and procedural aspects of the election and provides an overview of its implications from a practical standpoint.

Lickter v. Lickter: Taking The Legs From Under Elder Abuse Standing
(Page 14)
Edward J. Corey, Jr., Esq., Charles L. Post, Esq. and Brendan J. Begley, Esq.

A recent decision by the California Court of Appeal confines standing in elder-abuse actions to plaintiffs who have a financial stake in the outcome of the litigation. This article discusses how the holding in that case frustrates the legislative goal of preventing elder abusers from profiting through their misconduct.

Das Closes The Door On Civil Liability For Financial Institution Failure To Make Mandated Elder Abuse Report
(Page 18)
Christina M. Wickers

The court of appeal in Das v. Bank of America, N.A. ruled on whether the mandated elder abuse reporting duty for financial institutions opened the door to private civil actions. The answer is a clear “no,” leaving injured seniors with no damages remedy for this failure to carry out a statutory duty.

Reducing the Threat of Financial Elder Abuse: a Corporate Trustee’s Perspective
(Page 25)
Kenneth E. Petersen, Jr., Esq.

The use of stop loss and third party reporting protocols offer practical ways to help our most vulnerable clients.

The Ins And Outs Of Change In Ownership Rules For Legal Entities
(Page 27)
Sarah M. King, Esq

Exclusions to the property tax change in ownership rules allow property to pass down generations and between individuals and legal entities without reassessment – if the rules are observed. This article reviews the change in ownership rules for legal entities and sets out some strategies for using those rules to avoid unnecessary and potentially costly easessments of real property.

  • From the Chair
  • From the Editor
  • Errata: Ghost Banks
  • Litigation Alert
  • Tax Alert

Fall 2010 – Volume 16, Issue 3

Can Clients Make Gifts To Non-Family Members Now? The New Law Governing Gifts To Care Custodians
(Page 4)
Neil F. Horton, Esq.

Who is a care custodian? Who is a dependent adult? Who can draft a certificate of independent review? When should an attorney decline to draft a certificate of independent review? This article explains the new law governing gifts to care custodians and the ethical issues that arise when preparing a certificate of independent review.

Providing A Certificate Of Independent Review That Will Work
(Page 13)
Gregory Wilcox, Esq.

As a supplement to the article in this issue regarding gifts to care custodians, this article offers practitioners a way to document their compliance with the new requirements concerning Certificates of Independent Review.

Analyzing The Intersection Of California’s Trust Distribution Ordering Statutes and Subchapter J
(Page 16)
Michael Burnstein, Esq.

In the past decade, states including California have adopted unitrust and power to adjust legislation which has greatly enhanced the administration of trusts by permitting the separation of investment decisions from distribution decisions, thereby facilitating investments for total return. This article examines California’s ordering provisions and analyzes the extent to which they are likely to be respected for Federal tax purposes.

Special Needs Trusts: Responding To SSI POMS September 2010 Retroactive Revisions
(Page 24)
Patricia Tobin, Esq.

The Social Security Administration has revised its guidelines concerning the requirements for a permitted termination of a Special Needs Trust during the disabled beneficiary’s lifetime, applicable to both existing and new Special Needs Trusts. An understanding of the new rule is critical for practitioners in this area. This article explains the new rule and suggests a range of responses to the new requirements.

Ghost Banks: An Update
(Page 34)
Shannon M. Stein, Esq.

In the Winter of 2000, the Quarterly published “Ghost Banks”, written by Richard A. Gorini, Esq., which traced successor bank and trust companies with fiduciary powers from 1980 through 2000. Through this article and chart, Mr. Gorini’s original work is updated to reflect changes over that last ten years.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Tax Alert

Summer 2010 – Volume 16, Issue 2

As Uncertain as the Day is Long: Postponing the Estate Tax Sunset
(page 5)
James P. Lamping, Esq.

While the enactment of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 postponed the sunset of EGTRRA that was scheduled to occur on December 31, 2010, in many ways it only delayed the resolution of previously existing uncertainties. This article examines the new law and explores some of the challenges and opportunities presented by it.

Stress Test Your Client’s Life Insurance to Help Them Avoid the Attractive Impossibility
(page 11)

Many estate planners and their clients do not understand the complexities of modern life insurance policies. Variable life was developed to allow the insured to invest the cash value in a portfolio of investment choices, many of which have experienced extreme volatility in recent years. This article will identify some of the potentially disastrous pitfalls of variable life policies and encourage estate planners and clients to closely monitor their performance.

2010 California Legislaton Overview for Trust and Estates Practitioners
(page 18)

With any new calendar year comes new legislation. This article summarizes new legislation for 2011 that should be of interest to trust and estate attorneys.

The Supreme Court Defines a “Transfer” for Property Tax Change in Ownership Purposes in Steinhart
(page 27)

Property tax treatment of life estates has been at issue in the courts for many years. The California Supreme Court addressed a pivotal question when it became the first court to define a “transfer” for property tax change in ownership purposes in the Steinhart case, but other important issues remain undecided, even after the recent Phelps decision.

  • From the Chair(page 2)
  • From the Editor (page 4)
  • Litigation Alert(page 37)
  • Tax Alert(page 41)

Spring 2010 – Volume 16, Issue 1

The Accidental Foreign Trust
(Page 7)
S. Andrew Pharies, Esq. and Michelle C. Glasser, Esq.

A trust governed by California law that has no significant foreign contacts could be unintentionally classified as a foreign trust for income tax purposes. This article will help practitioners identify and fix such accidental foreign trusts.

Using Private Retirement Plans to Safeguard Assets Against Creditors
(Page 15)
Dennis A. Fordham, Esq.

Private retirement plans that are not qualified under ERISA are protected from creditors under section 704.115 of the California Code of Civil Procedure. This article outlines and explains the numerous case law requirements surrounding section 704.115 that you need to know in order to draft and administer private retirement plans.

Escaping The LPS Revolving Door
(Page 24)
Christopher D. Carico, Esq. and James E. Spar, M.D.

Successful involuntary mental health treatment under California’s LPS conservatorship system is severely limited by the 1-year duration of the LPS conservatorship and the need for a finding of present grave disability for renewal of the conservatorship. This article examines
often-ignored (and/or misinterpreted) California Probate Code section 2357, which provides an option for long-term mental health treatment, using a probate conservatorship, that is unavailable under the LPS system.

Carrying on in 2010: The Modified Carryover Basis Regime and Complying With Reporting Requirements
(Page 33)
Patrick A. Kohlmann, Esq.

The 2001 Tax Act has replaced the estate tax with a “modified carryover basis” regime for all decedents who die in 2010. As a result, attorneys must be familiar with the basis election process and compliance requirements for these estates.

  • From the Chair (Page 2)
  • From the Editor (Page 5)
  • In Memoriam (Page 6)
  • Education Alert (Page 44)
  • Litigation Alert (Page 45)
  • Tax Alert (Page 50)

Winter 2010 – Volume 15, Issue 4

What about the Children? Family Allowances in the Age of the Revocable Trust – Is Parson Still Good Law and Should it be?
(Page 7)
Jeremiah J. Moffit, Esq.

California law provides for a family allowance for decedent’s minor children in estate proceedings, but such concept is generally unavailable in the context of a revocable trust. This article reviews the Second District Court of Appeal decision of Parson v. Parson and explores the ramifications of the decision on minor children of parents that have funded all of their assets into a revocable trust.

Revitalizing a Stale Trust: Improvement, If Not Perfection
(Page 12)
James P. Lamping, Esq.

The administration of a two settlor trust where a substantial amount of time has passed since the death of the first spouse can present unique challenges. This article explores some of the most common problems associated with a stale trust administration, as well as offering possible solutions to the dilemmas posed by this scenario.

Reintroduction of the Term “Trustee de son tort” to the California Trust Lexicon
(Page 20)
Ralph E. Hughes, Esq.

The article discusses the recent publication of King v. Johnston which has revitalized the concept of a “Trustee de son tort” in California trust litigation.

Directed Trusts Come of Age in California
(Page 24)
Philip J. Hayes, Esq.

While California practitioners commonly draft trusts where a trust advisor, protector or committee directs the trustee, they do so without the benefit of a statute enabling the use of a trust advisor. This article discusses directed trust statutes used in other states and outlines a legislative proposal for a California directed trust statute.

Inheritance Rights of Posthumously Conceived Children in California
(Page 37)
Mark J. Phillips, J.D., LL.M

The science of conception is ever changing. This article considers the relevant statutory and case law authority that impacts the rights of posthumously conceived children.

  • From the Chair (Page 2)
  • From the Editor (Page 5)
  • Litigation Alert (Page 40)
  • Tax Alert (Page 44)

Fall 2009 – Volume 15, Issue 3

Avoiding The Witness Stand: Practices and Strategies to Protect Estate Plans and Estate Planners
(page 7)
Mike Masuda, Esq. and Leslie Finnegan, Esq.

Many estate planning attorneys dread the thought of having one of their estate plans challenged, which often includes being deposed. This article discusses potential strategies for the estate planner that may protect both the estate plan and the estate planning attorney.

Over the River and Through the Woods: Creative Estate Planning Ideas for Grandchildren
(page 11)
Steven D. Anderson, Esq. and Sinclair Hwang, Esg.

When grandchildren disappoint their elders, or prior gifts appreciate wildly, serious concerns may arise. This article provides an overview of issues and techniques to consider when planning involves the sometimes too fortunate third and fourth generations.

A Legislative Proposal for Elective Administration
(page 22)
John A. Hartog, Esq.

The topic of elective administration of estates, as an alternative to a formal probate administration, has been discussed by Section members for years. This article discusses a legislative proposal that has been adopted by the Executive Committee of the Trust and Estates Section of the State Bar.

Got Premium? Costanza v. Commissioner and the Tax Treatment of SCINs Cancelled by Death
(page 26)
Gadi Zohar

Practitioners may have heard about self canceling installment notes and their use in estate planning. This article discusses these notes and provides general considerations regarding their use. This article focuses on the risk premium as a threshold for SCIN analysis, and advises against the practitioner relying on Costanza v. Commissioner, a recent decision involving a self canceling installment note.

Sparse Pickings in the 2009 Legislative Session
(page 35)
Bart J. Schenone, Esq.

While the 2009 legislative session produced less trust and probate related legislation than prior sessions, this article summarizes recent legislation that impacts trust and estate practitioners.

Property Tax Reporting Requirements and the Consequences of Not Complying
( page 42)
Dibby Allan Green, ACP

Effective January 1, 2010, new property tax penalties for not reporting a change in ownership were added to the California Revenue and Taxation Code. This article, and an accompanying chart, provides an overview of the current property tax reporting requirements and the various consequences of not reporting.

  • From the Chair (page 2)
  • From the Editor (page 6)
  • Litigation Alert (page 57)
  • Tax Alert (page 62)

Summer 2009 – Volume 15, Issue 2

Drafting No Contest Clauses Under the New Law
(page 6)
Neil F. Horton, Esq. and Richard L. Ehrman, Esq.

Estate planners need to rethink the use and drafting of no contest clauses in light of newly effective legislation that restricts their enforceability. This article advises planners how to use no contest clauses in light of the new restrictions, suggests alternatives to traditional no contest clauses, and provides forms for planners to consider and adapt.

Running Away Will Get You Nowhere: New Taxes Imposed on Expatriates
Erin L. Prouty, Esq.

Federal tax laws that apply to expatriating citizens and long-term permanent residents of the United States have been drastically changed. The article summarizes the “Heroes Act” and recent IRS guidance, and suggests some unanswered questions and potential issues under the new law.

Estate Planning for Registered Domestic Partners: Navigating the State and Federal Conflict
(page 28)
Steven M. Goldberg, Esq. and Naomi E. Metz, Esq.

California gives registered domestic partners (RDPs) rights similar to married couples, but the federal government does not, raising significant problems for RDPs engaged in estate planning. This article makes the case that transfers between RDPs in satisfaction of either community property or support obligations are not subject to gift tax. The article also discusses estate planning techniques for RDPs, and the potential desirability of filing gift tax returns.

California’s New Pet Trust Statute: Maybe the Legislature Will Get It Right Eventually
(page 37)
Kenneth W. Kossoff, Esq.

California has finally joined the nearly forty other states which have enacted legislation enabling the creation of legally enforceable trusts for the care of the trustor’s pets after the trustor’s incapacity or death. This article will introduce the estate planning community to the new law, identify potential problems, and propose solutions.

Why Federal Jurisdiction Matters: The Impact of Marshall v. Marshall on Probate Court Litigation
(page 43)
Daryl M. Crone, Esq.

Few practitioners realize that actions typically litigated in state probate court are potentially subject to federal court jurisdiction. This article discusses the limited scope of the so-called “probate exception” to federal court jurisdiction, as elucidated by U.S. Supreme Court case Marshall v. Marshall, and subsequent federal precedent.

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Litigation Alert (page 47)
  • Tax Alert (page 50)

Spring 2009 – Volume 15, Issue 1

Do You Speak “Portability”? Discussing Clients’ Estate Plans in a New Language
(page 6)
Shirley L. Kovar

Since the advent of the unlimited marital deduction in 1981, the marital deduction-credit shelter, or A-B Trust, has become ubiquitous. Congress is considering legislation that may change all that. This article reviews a bill that would make the estate tax exemption transferable to a spouse, and suggests one approach to integrating such “portability” into estate planning.

A Square Peg in a Round Hole? Civil Law and Motion Pleadings in Probate Proceedings
(page 13)
Andrew Zabronsky, Esq. and Naznin B. Challa

Some probate courts have begun to question whether demurrers may be brought in probate proceedings. This article examines the issue, concluding that probate litigators have at their disposal the full panoply of civil law and motion pleadings.

The Mess Left Behind: Taxation of Post-Death Foreclosures
(page 18)
James P. Lamping, Esq.

The foreclosure of real property after death can raise a number of concerns for the fiduciary administering the estate. This article examines the tax considerations, and discusses several exclusions which may be helpful in avoiding the imposition of tax.

What Every Estate and Trust Attorney Needs to Know About Contingent Fee Representation
(page 29)
Noël M. Lawrence

Now more than ever attorneys and clients are finding it necessary to explore structures other than hourly billing. This article discusses the legal and practical concerns of representing a client on a contingent fee basis in trust and estate litigation.

It’s Never Too Late to Redeem Yourself: Redemptions as an Estate Planning Technique
(page 39)
Lara N Gilman, Esq. and Kristine Waggener, Esq.

The most common methods to transfer a family business are gifts (outright or in trust), sales, and Grantor Retained Annuity Trusts. This article suggests that redemption of the client’s interest by the business will sometimes provide a more tax efficient method.

California Trusts and Estates Quarterly, Summary of Articles (Spring 2000 to Winter 2008)

This index and summary of articles published in the Quarterly picks up after the last such index, which was published in the Summer 2000 issue.

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Litigation Alert (Page 57)
  • Tax Alert (page 63)

Winter 2008 – Volume 14, Issue 4

The Marital Deduction and IRC Sections 2511, 2519 and 2207A: A Three-Headed Hydra
(Page 6)
Adam F. Streisand and Deborah J. Bross

Transfer of even a small part of a surviving spouse’s interest in a QTIP trust can result in gift tax liability greatly out of proportion to the transfer. Moreover, these gift taxes can be triggered even if the transfer was not a gift, such as when it was in settlement of litigation. This article examines the three interrelated sections of the Internal Revenue Code responsible for these potentially ruinous taxes, lest practitioners inadvertently fall into the statutes’ trap.

The High-Risk Will: Where Planning and Litigation Collide
(Page 12)
Charles M. Riffle and Andrea Pierotti

This article provides guidelines to assist attorneys in drafting estate plans that will withstand challenge, from the perspective of the litigator who will be defending the plan.

The Curious Case of QPRTs: Underused and Underappreciated
(Page 19)
Bruce Givner and Owen Kaye

Although qualified personal residence trusts have been available for nearly 20 years and have been recognized by commentators as excellent estate planning vehicles, empirical evidence suggests they remain underutilized. This article argues that a fresh reconsideration is warranted.

Family Vacation Homes: Planning with Qualified Conservation Contributions
(Page 25)
Nancy G. Henderson and Kristen E. Caverly

Part II of a discussion of various options available to vacation-home owners who wish to pass property to children or other family members, this article addresses the challenges presented by the Byzantine, statute-driven method of qualified conservation contributions.

Legislative Update: Will the New No Contest Clause Legislation Prevent Fido from Contesting his Master’s Will
(Page 35)
Bart J. Schenone and Margaret G. Lodise

The last year of this legislative session marked the passage of many bills of interest to trusts and estates practitioners. This article provides an overview.

  • From the Chair (Page 2)
  • From the Editor (Page 4)
  • Alert re Retroactivity of New Harmless Error Rule (Page 44)
  • Litigation Alert (Page 46)
  • Tax Alert (Page 50)

Fall 2008 – Volume 14, Issue 3

The New No Contest Law: New Challenges for Trusts and Estates Attorneys
(page 7)

The Legislature has enacted Senate Bill 1264, which dramatically changes the rules governing the enforcement of no contest clauses. This article describes the changes made by the new law, the reasons for them, and some of the challenges they present to practitioners. While the new law is a substantial improvement over existing law, it fails to resolve certain problems and, like most new legislation, presents some new ones as well.

From the Ashes: Can No Contest Clauses Be Resurrected By Conditional Gifts?
(page 17)

This article examines the extent to which conditional gifts might succeed as a substitute for no contest clauses, and the extent to which they would likely be struck down. The author concludes that conditional gifts are not likely to provide a means to sidestep the new law’s restrictions on no contest clauses.

A Practitioner’s Guide to Heggstad Petitions
(page 20)

After analyzing the Heggstad decision, the article discusses how to file a Heggstad petition, including procedural considerations and various fact scenarios affecting the petition’s prospects for success. On the planning side, the article also considers several drafting points designed to increase the potential that a Heggstad petition would be available for a trust that was not funded completely or correctly.

Transmutation and the Ascendance of Undue Influence
(page 27)

California law pertaining to transmutations has a checkered history. As outlined in this article, while statutory changes in 1985 promised to provide some clarity, the injection of undue influence law has, to an extent, muddled the picture once again.

Planning for Family Vacation Homes
(page 31)

Many vacation-home owners hope to pass their properties on to their children or other family members. This article addresses the challenge of planning for such gifts, including practical issues concerning family and management dynamics, as well as considering the taxes that affect gifts of real property

A House Divided: The Purchase by the Surviving Spouse of an Interest in the Family Residence Following its Allocation to Credit Trust
(page 42)

The allocation of an interest in the family residence to a credit trust can present unique challenges for the trustee and their counsel. This article examines the purchase by the surviving spouse of an interest in the family residence following its allocation to a credit trust as a solution to these challenges.

  • From the Chair (page 2)
  • From the Editor (page 5)
  • Litigation Alert (page 49)
  • Incapacity Alert (page 52)
  • Tax Alert (page 54)

Summer 2008 – Volume 14, Issue 2

The Death of the California Compassionate Choices Act: Will Californians Ever Receive the Right to Die?
(page 6)
Rebecca A. Gardner

This article reviews the most recent legislative proposal to secure right to die protections in
California, the California Compassionate Choices Act, and explores why, more than a decade after Oregonians enacted the Death with Dignity Act, Oregon remains the only state in the Union to enable terminally ill patients to exercise the right to die.

R.I.P. for RAP–California’s Turn to Reform the Rule?
(page 13)
Kristan N. Shepard and Philip J. Haye

A loophole in the generation skipping transfer tax system has sparked a movement in many states to repeal the Rule Against Perpetuities to allow perpetual trusts. These repeal efforts have led to multibillion dollar increases in trust assets of abolishing states. In this article, the authors explain why California should join the repeal movement, not only to increase our trust assets, but also stem the migration of trust assets and trust business to other states.

Executing Printed Wills: Don’t Try This at Home (Why We Needed AB 2248’s Harmless Error Rule)
(page 17)
Silvio Reggiardo III

Many states have relaxed formalistic will execution requirements that more often serve to frustrate the will of the testatator rather than protect beneficiaries from fraud and abuse. Spurred by the California Supreme Court’s decision in Estate of Saueressig, TEXCOM sponsored a bill, signed into law on July 1, incorporating the UPC’s harmless error rule with respect to witness signatures, bringing California in line with the trend to relax will formalities. This article explains the background, purpose and limited scope of the new law.

Addressing the New Return Preparer Standards: Preparation Not Panic
(page 23)
Thomas W. Shaver

In May 2007 Congress amended the tax return preparer penalties prescribed in IRC section 6694 to heighten the standards of conduct that “tax return preparers” must meet to avoid penalties. Using a hypothetical case study, this article reviews the amendments to Section 6694 and the sometimes intriguing interpretation of those amendments in the IRS’s published guidance and proposed regulations.

Income and Employment Tax Implications of Trustee Fees
(page 35)
Susan L. Wertz

The IRS will be scrutinizing trustee fees following the recent Supreme Court case Knight v.
Commissioner, which limits the tax deductibility of fiduciary fees and other administrative expenses. In light of the increased attention, fiduciaries should be aware of the potential for self-employment (SE) taxes arising from the payment of these fees. This article reviews Knight and its interplay with the administrative expense deductions on the estate tax return (Form 706), and also outlines guidelines used by the IRS to determine whether trustees and executors must pay SE tax on their fees.

  • From the Chair (page 2)
  • From the Editor (page 5)
  • Litigation Alert (page 41)
  • Incapacity Alert (page 47)
  • Tax Alert (page 49)

Spring 2008 – Volume 14, Issue 1

Qualifying Under Internal Revenue Code Section 6166: Post-Death Estate Tax Deferral Through Careful Inter Vivos Planning
(page 6)
Alyse Pelavin

Internal Revenue Code section 6166 provides an important estate tax deferral benefit if an interest in a closely held business exceeds 35 percent of a decedent’s adjusted gross estate. This article reminds practitioners that Section 6166 qualification must be considered during the client’s lifetime, and highlights several issues relating to qualification to consider for any client who owns an interest in a closely held business.

The New Alchemy: Hasso v. Hasso and Converting Principal to Income Under the Revised UPIA
(page 11)
Andrew Zabronsky and Claudia J. Lowder

Estate planners have for some time increasingly employed family limited partnerships and LLCs in the estate plans of their clients, usually in the form of gifts to irrevocable trusts. While these plans save clients transfer taxes, they also have created some administrative headaches, mainly in the realm of principal and income. In this article, the authors address a problem with the revised Uniform Principal and Income Act brought to light in the 2007 case of Hasso v. Hasso: the automatic allocation of entity receipts to income, and propose a legislative fix.

A New Use For Confidential Marriage: Elder Abuse
(page 19)
Ellen McKissock

Confidential marriages have been blessed by statute in California since 1863. In recent years, however, while the original purpose of the statute has been rendered practically moot, designing persons have used the statute as a shield to facilitate elder abuse. The author proposes that the statute be eliminated or at least modernized to protect elders from abusive confidential marriages.

Use of Captive Insurance in Estate and Business Planning
(page 24)
Gordon A. Schaller and Scott A. Harshman

Captive life insurance programs are gaining popularity with mid-sized businesses as a way to cope with increasing premiums and reduced coverage. As this article points out, not only do captive insurance programs provide income tax benefits for businesses, they also provide families an opportunity to shift value to younger generations at reduced transfer tax cost. This article alerts us to this new trend and serves as a road map to further understanding of this important shift in mid-sized business practice.

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Litigation Alert (page 33)
  • Tax Alert (page 37)

Winter 2008 – Volume 13, Issue 4

Business Succession Planning
(page 6)
by Louis A. Mezzullo

The unique and combustible mixture of business and personal objectives makes family business succession planning one of the more challenging issues an estate planner can face. Drawing on years of experience, the author, a prolific speaker and author, describes how clients can provide for the orderly transfer of ownership and management, avoid liquidation and unnecessary taxes, all in a manner carrying out the client’s non-tax objectives.

How Can We Help Our Divorcing Clients Plan Their Estates With ATROs in the Way?
(page 14)
by Jennifer Crum, Esq.* and Kim Schoknecht, Esq.

Estate planners owe a duty to their divorcing clients to fully understand the restrictions imposed by the Automatic Temporary Retraining Orders (ATROs) that take effect upon the filing of a petition for dissolution, and remain in effect until the divorce settlement is final and all issue are resolved. The authors, one a family lawyer and one an estate planner, guide the estate planner through the ATROs thicket.

The Single-Page Business Plan
(page 18)
by Edward M. Phelps, Esq.

A business plan is essential is an invaluable management tool for attorneys with solo practices or who practice in small firms, yet the process of creating one intimidates the lawyers who most need it. This article breaks the process of creating a business plan into painless steps. Your reward for the exercise: a comprehensive single-page business plan.

Satisfying the UPIA through Professional Investment Advice and the Creation of the Investment Policy Statement
(page 27)
by Christopher D. Carico, Esq., Larry K. Prutch, CFP, CIMA, Institutional Consulting Director, and Cengiz Volkan, CFP, CIMA, Institutional Consulting Director

For good reason, estate planning lawyers are not known for investment acumen. How then can we dispense advice to clients regarding Uniform Prudent Investor Act compliance? The authors explain how participating in the creation of a detailed investment policy statement can insulate the attorney and the client from claims by beneficiaries unhappy over the management of trust assets.

2008 Legislative Update
(page 32)
by Bart J. Schenone

Although there were fewer fireworks last year than Mr. Schenone would have liked in
probate and trust legislation, the sheer volume of new and revised laws compensates for any lack of excitement. Enjoy Bart’s summary of the new slate of laws we all must become
acquainted with.

  • From the Chair (page 2 )
  • From the Editor (page 4).
  • Incapacity Alert (page 41)
  • Litigation Alert (page 44)
  • Tax Alert (page 51)

Fall 2007 – Volume 13, Issue 3

Executive Committee Proposal for “Elective Administration” of Decedent’s Estates
(page 5)
By Richard A. Burger

The Executive Committee of the Trusts and Estates Section of the State Bar of California
is considering an alternative to formal probate administration of the estates of both testate and intestate decedents. After presenting the pros and cons of its proposal, TEXCOM solicits the opinion of section members.

Adventures in Forgiveness and Forgetfulness, Part 2: Intra-family Sales for Beginners
(page 15)
By Philip J. Hayes

No article about intra-family loans would be complete without a discussion of loans in the
context of sales transactions. Thus, we present Part 2, the abstract counterpart to intra-family loans: intra-family sales.

Contractual Arbitration: Is it Binding on Victims of Elder Abuse?
(page 23)
By Edward J.. Corey, Jr. and Kelly E. Sutter

Arbitration clauses have a particular impact on the elderly because these clauses usually
take away rights guaranteed to the elderly by law. The authors outline a strategy for avoiding mandatory arbitration so that victims of elder abuse may avail themselves of the protections the law provides.

Practice Makes Perfect: Practical Issues for the Practice Administrator
(page 28)
By Herbert A. Stroh

The author explains the necessity of appointing a practice administrator to administer the
practice of an incapacitated or deceased sole-practitioner attorney. The author also provides tips to the sole practitioner who is planning his or her estate and to the attorney contemplating appointment as a practice administrator.

The California Legislative Process
(page 33)
By Tracy M. Potts and Silvio Reggiardo, III

The authors explain the legislative process, highlighting TEXCOM’s role in that process and illustrating the process with examples of recent successful and failed legislation.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Incapacity Alert (page 40
  • Litigation Alert (page 43)
  • Tax Alert (page 48)
  • Property Tax Alert (page 55)

Summer 2007 – Volume 13, Issue 2

Adventures in Forgiveness and Forgetfulness: Intra-family Loans for Beginners
(page 5)
By Philip J. Hayes, Esp.

The intra-family loan may lack the aura of sophistication that surrounds some of the
newly-popular estate planning tricks, but these loans offer an effective and easily understoodopportunity to save gift and estate taxes.

Family Law and Estate Planning: Transmutations, Tax and Malpractice Prevention
(page 15)
By Charlotte K. Ito and Garrett C. Dailey, Esq.

Family law attorneys view estate planning attorneys as the Evel Knievels of the law,
daring to undertake joint representations fraught with danger. This article identifies the risks to which many estate planning attorneys are blind and recommends ways these risks may be avoided.

You Can Lead the IRS to the Law, but You Can’t Make it Think: Why Section 2053 Proposed Regulations are Wrong
(page 21)
By Michael C. Gerson, Esq.

On April 23, 2007, the IRS issued proposed regulations providing that the estate tax
deduction for a claim against the estate will be limited to the amount actually paid. The author explains why these regulations are fatally flawed.

  • From the Chair (page 2)
  • From the Editor (page3)
  • Incapacity Alert (page 31)
  • Litigation Alert (page 36)
  • Tax Alert (page 39)

Spring 2007 – Volume 13, Issue 1

Donating Real Property to Charity
(page 6)
By Chris Nicholson, Esq., Bruce H. Coblentz, CPA and Edward Faircloth, CPA

Roughly 50 percent of American wealth is invested in real property, yet few donors consider giving realproperty when they consider making charitable donations. This article examines charitable donations of real property from both the donor’s and the charity’s point of view.

New Probate Code Section 6132: An Improvement or Just a Stimulus for Litigation?
(page 18)
By Bart Schenone, Esq.

Probate Code section 6132 changes existing California law by permitting a Will to refer to a writing that directs disposition of certain tangible personal property. The definition of “writing” is flexible, and the process is intended to be informal. Unfortunately, this informality and the statute’s other problems will mar its usefulness and may frustrate testators’ intentions.

Sleepless Nights for Estate Planning Attorneys: What to do About the Care Custodian Statute?
(page 22)
By Neil F. Horton, Esq.

The author warns that, after Bernard v. Foley, each time a client over age 64 considers making a gift to a non-family member, the estate planning attorney must explore in great detail the nature of the client’s relationship with the donee. Is a certificate of independent review necessary? Who is sufficiently “independent” to conduct the review? What is a sufficient review?

Out of State, Out of Mind? Not so for Conservators Since Hume
(page 28)
By James J. Brown, Esq.

Since Hume, conservators and guardians must inventory out-of-state real property. This requirement has generated a great deal of concern, to which the Executive Committee of the Trusts and Estates Section has responded. This article explains practitioners’ concerns and the Executive Committee’s proposed solution.

The Trustee’s Million Dollar Question: Who Should Get Notice of a Trust Administration?
(page 33)
By James P. Lamping, Esq.

California law is not entirely clear regarding whether a beneficiary whose name was deleted by a trust amendment is still entitled to notice of the trust administration. The author compares notice requirements in probate administrations with those in trust administrations and warns of the significant liabilities trustees may face if they fail to give proper notice.

Does Your Elder Have Standing?
(page 37)
By Steven Riess, J.D., LL.M

Plaintiffs now routinely include in their complaints causes of action for elder financial abuse, but care must be taken when considering whether a plaintiff has standing to assert such claims.

A Claim is a Claim is a Claim: Post-death Events and Section 2053 Deductions
(page 40)
By Michael C. Gerson, Esq.

The author summarizes the Ninth Circuit’s jurisprudence and concludes that whether certain, disputed or contingent, in the Ninth Circuit, all claims against the estate are valued as of the date of death.

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Incapacity Alert (page 48)
  • Litigation Alert (page 49)
  • Tax Alert (page 54)
  • Education Alert (page 60)

Winter 2006-2007 – Volume 12, Issue 4

Understanding Property Tax Treatment of Trusts
(page 6)
By Wayne H. Gilbert and Timothy S. Galusha

Property tax reassessment – how can it be avoided? In drafting and administering trusts, practitioners must be wary of real property transfers triggering reassessments. This article examines the “change in ownership” rules specifically affecting trusts and explains how, with careful planning, reassessment may sometimes be averted.

Importance of Trusts in Asset Protection
(page 17)
By Jacob Stein

Not all types of trusts are effective asset protection devices, but a properly drafted and structured trust may be an almost impregnable form of asset protection.

The Trouble with Trusts
(page 26)
By John A. Hartog

Trusts are appropriate in limited circumstances, but they rarely accomplish the purposes for which they are frequently touted. Instead, many settlors would be bettor served by a simpler and under-appreciated estate planning device.

Valuation Benefits with Leveraged Co-Ownerships May Exceed Entity-Related Valuation Adjustments for Minority Interests
(page 34)
By Keith Schiller

Tenancy in common ownership of real estate may provide greater tax savings than is available with limited partnerships or limited liability companies, especially when the real property is subject to recourse debt.

Crisis in Conservatorships
(page 43)
By Edward J. Corey, Jr., Margaret G. Lodise, and Peter S. Stern

The laws that govern the creation and administration of conservatorships have changed dramatically and not entirely for the better. This article provides an in depth analysis of the new laws.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Incapacity Alert (page 60)
  • Litigation Alert (page 61)
  • Tax Alert (page 65)

Fall 2006 – Volume 12, Issue 3

First-Party Special Needs Trusts and Probate Code Sections 3600 et seq.–What AB 1851 (Stats. 2004, Ch. 67) Accomplished
(page 6)
By Thomas E. Beltran and Peter S. Stern

The authors explain how recent amendments to the Probate Code correct shortcomings in the statutory scheme for first-party, special-needs trusts.

Preserving Eligibility for Public Benefits and Inherited Assets when There Has Been No (or Ineffective) Planning for a Disabled Person
(page 10)
By Kevin Urbatsch and Polly Levin

The authors provide practical advice when there has been inadequate or ineffective planning for disabled persons.

California’s Recent Experience with Premarital Agreements: A Practice Guide for the Future
(page 21)
By Christopher M. Moore

More practical advice from frequent contributor Mr. Moore, this time in drafting premarital agreements to make them stick.

Inclusion of Adoptees in Class Gifts to Issue: The Uncertainties and Incongruities of Probate Code Section 21115
(page 28)
By David C. Nelson

The author advocates change in the ambiguous provisions of the Probate Code relating to the inclusionof adoptees in class gifts.

Timing Is Everything: What Is the Period of Limitations for Elder Financial Abuse Actions?
(page 33)
By Steven Riess

Hardly a contest omits claims of elder abuse any longer, but is it an independent tort, and what statute of limitations applies?

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Incapacity Alert (page 37)
  • Litigation Alert (page 38)
  • Tax Alert (page 48)
  • Mike’s Minutiae (page 55)

Summer 2006 – Volume 12, Issue 2

Crossed Circuits on Estate Tax Deductibility of Disputed or Contingent Claims
(page 6)
By Jeffrey M. Loeb

Depending on the locale of administration, the date-of-death value of a disputed or contingent claim against the estate may or may not be deducted. The author explains how it came to pass and the unfair consequences that result, and argues for a resolution by the Supreme Court.

Speak Now or Forever Hold Your Peace: a Legislative Proposal for Collateral Estoppel of Substituted Judgment
(page 17)
By David W. Baer and Kim T. Schoknecht

Our last issue featured an article promoting the concept of the pre-death will contest, and here, the authors offer a proposal for legislation to prevent parties with notice of a substituted judgment petition from relitigating the efficacy of a will or trust established by such a petition.

A Charitable Catch-22: Standing for Private Attorney General Actions in California
(page 23)
By Geraldine A. Wyle and Stacie Polashuk Nelson

The magnanimous, charitable donor may be perplexed, bothered and bewildered to know that her gift of a wildlife preserve is being converted to a golf course, but what is she to do? The answer may be equally wrenching.

Risky Business: Family Business Succession and the Rules of Professional Conduct
(page 29)
By John W. Ambrecht and Elyce Pike

For lawyers and families alike, the California Rules of Professional Conduct create risks and pitfalls to accomplishing the shared vision to ease the transition of a family business from generation to generation.

The Fiduciary’s Conflict: One Lawyer or Two?
(page 41)
By Jeffrey A. Jaech and Kathleen A. Meehan

A topic of continuing interest and complexity, the fiduciary’s conflict between her duties as a fiduciary and her personal interest leads our authors to argue that in most instances, one lawyer notwithstanding may be sufficient.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 46)
  • Tax Alert (page 49)
  • Incapacity Alert (page 57)

Spring 2006 – Volume 12, Issue 1

Rumors Of Their Death Are Greatly Exaggerated: The Pre-Death Will Contest And Other Strategies In Conservatorship Litigation
(page 6)
By Adam F. Streisand

The conservatorship boom is just beginning and it is the wild, wild west of trust and estate litigation; our Editor shares cutting edge courtroom strategies where the law is scarce but the cause is noble.

Discretionary Distributions: To Pay or Not to Pay?
(page 16)
By Kathleen A. Knight and James P. Bessolo

Follow this thoughtful, methodical approach in deciding to pay or not to pay, and avoid a Shakespearean tragedy of your own making.

Putting an End to the Shirtsleeves-to-Shirtsleeves Phenomenon: A New Wealth Management Paradigm
(page 26)
By Maryann S. Meggelin

Think children, grandchildren, great-grandchildren, think … dynasty; the author proposes a strategy to preserve wealth for the generations.

Beyond Traditional Estate Planning: Addressing the Personal Impact of Inherited Wealth
(page 33)
By William Soskin

Wealth can enrich or it can spoil, and estate planners, who become trusted family advisors, can help guide and counsel clients to enrich the recipients of their largesse.

Helping the Incapacitated Client: A Response to Warren Sinsheimer’s “In This Lawyer’s Opinion”
(page 36)
By Peter S. Stern and Margaret G. Lodise

The debate rages on as our clients increasingly need our help at the most vulnerable times in their lives and attorneys are constrained under rules of professional conduct from helping them.

Recent Developments in Ownership Rules: What T&E Practitioners Should Know
(page 38)
By Frayda L. Bruton

New domestic partner laws affect property tax assessments and other legislative changes impact California property tax law.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Incapacity Alert (page 45)
  • Litigation Alert (page 49)
  • Legislative Alert (page 53)
  • Members Only Alert (page 54)
  • Tax Alert (page 55)

Winter 2005 – Volume 11, Issue 4

Making the Other Guys Pay: Attorney Fees and the Common Fund Theory
(page 6)
By Margaret M. Hand

Fight back against the injustice of paying attorneys’ fees when it is your adversary who caused harm to the estate or filed the frivolous action. The author explains how to overcome the American Rule that each side bears its own fees.

Can You Hear Me Now? Drafting a No Contest Clause under the New Rules
(page 12)
By Shirley L. Kovar and John A. Hartog

Having deconstructed the illusion of a logical body of law on the enforceability of no contest clauses in our last edition, and decrying that system under which we currently find ourselves laboring, the authors now advise and educate on how to draft those clauses in this legal minefield.

What Is a Care Custodian Under Probate Code § 21350?
(page 18)
By Terrence M. Franklin and Matthew W. McMurtrey

The Districts of the Court of Appeal are split and the Supreme Court has granted review. A primer on this important debate and critical analysis for reaching resolution and a sensible path.

In This Lawyer’s Opinion: A T&E Lawyer’s Role in Protecting the Vulnerable Client
(page 23)
By Warren A. Sinsheimer

This provocative piece bites into the nape of the controversy over an attorney’s obligation to maintain sacrosanct her client’s confidences while feeling compelled to help and protect the client who becomes vulnerable because of age or infirmity.

Private Real Property Sales in Probate Proceedings–Let the Seller Beware
(page 26)
By Carmen A. Alberio

Everything you need to know but were afraid to ask, or simply failed to find in pulling the pieces together from the Probate Code, Rules of Court and local rules, to ensure a successful probate sale of real property the first time around.

Heard from the Court
(page 31)

Reprising the popular column in which our prestigious probate judges share invaluable advice for success in their courtrooms, the Quarterly brings you straight talk from the Hon. Marjorie Laird Carter and the Hon. Richard G. Cline.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Incapacity Alert (page 33)
  • Tax Alert (page 36)
  • County Recorder Alert (page 42)
  • Litigation Alert (page 49)

Fall 2005 – Volume 11, Issue 3

The New Unitrust Conversion Power under the California Uniform Principal and Income Act – a Useful Complement to the Adjustment Power
(page 6)
By James L. Deeringer and Silvio Reggiardo III

A new amendment to the California Uniform Principal and Income Act specifically authorizes conversion of a net income trust into a unitrust. The unitrust conversion power provides a helpful alternative to the adjustment power and will be more broadly available

And Now the Rest of the Story: No Contest Clauses Under The New Rules of Section 21305
(page 17)
By John A. Hartog and Shirley L. Kovar

The authors illustrate the difficulties of employing no contest clauses under California’s current statutory and judicial regime

Realities of the Trust Situs Marketplace
(page 25)
By Philip J. Hayes and Kay E. Henden

In recent years, trust situs selection has been marketed to practitioners like prescription drugs to seniors – but without the disclaimer. The authors attempt to cut through the murk and present an objective survey of practical state situs considerations

Hearsay Evidence in Trust and Estate Litigation
(page 40)
By Darrell Thompson

Hearsay evidence may be the most probative testimony available to the lawyer who is
involved in trust and estate litigation. The author describes some of the more common exceptions which allow the introduction of hearsay evidence

Advising Trustees of Special Needs Trusts
(page 47)
By Ruth A. Phelps

The author describes the unique challenges faced by a trustee of a special needs trust and how proper administration may ensure the beneficiary’s continued receipt of public benefits Elder Abuse and Dependent Adult Civil Protection Act:

Elder Abuse and Dependent Adult Civil Protection Act: Governmental Aspects
(page 55)
By Leonard W. Pollard III

Suspected financial elder abuse is currently reported to designated local governmental agencies under EADACPA, and banks become mandated reporters in 2007. The author reviews the governmental aspects of EADACPA

  • From the Chair (page 2)
  • From the Editor (page 5)
  • Trust Administration Alert (page 59)
  • Ethics Alert (page 64)
  • Incapacity Alert (page 66)
  • Tax Alert (page 67)
  • Legislation Alert (page 74)
  • Litigation Alert (page 76)

Summer 2005 – Volume 11, Issue 2

Sharpen Your Pencil – The New Circular 230 Regulations
(page 6)
By Thomas W. Shaver

The author explores changes to estate planning practice in light of the most recent revisions to the Circular 230 Regulations.

Dead Man Talking: Is There Life After Death for the Attorney-Client Privilege?
(page 17)
By William R. Burford and Terence S. Nunan

The authors review the application of Evidence Code §§ 953 and 954 to posthumous claims of attorney-client privilege and compare California’s “personal representative” rule to the federal and common law of privilege. They identify uncertainties created by the personal representative rule and propose means to maintain or revive the attorney-client privilege after a client’s death.

Cross-Border Tax Planning: Outbound
(page 26)
By Charles G. Stephenson and Debra L. Kasper

The authors explain how a U.S. citizen or resident might become a “non-U.S. person” for income tax and estate and gift tax purposes, and the tax consequences in light of changes made to the “expatriation tax” by the American Jobs Creation Act of 2004.

The Case for Mediation
(page 34)
By Kay Henden

In those California counties where pretrial mediation is not an accepted part of the litigation process, the attorney must convince both his client and opposing counsel of the advisability of mediation. The author provides a “checklist” of the benefits of mediation for discussion with both.

  • From the Chair (page 2)
  • From the Editor (page 5)
  • Litigation Alert (page 38)
  • Tax Alert (page 41)
  • Incapacity Alert (page 48)
  • Heard from the Court (page 50)

Spring 2005 – Volume 11, Issue 1

When is the Estate Planning Attorney Subject to a Malpractice Claim by a Nonclient Beneficiary?
(page 6)
By David W. Baer, Esq. and Michele K. Trausch, Esq.

The authors examine the evolving duty of an estate planning attorney toward the beneficiaries of the estate plan. The existence of such a duty determines whether the attorney may be held liable for malpractice by the nonclient beneficiaries. The article includes an analysis of three important recent decisions in this area.

When Death and Divorce Collide
(page 17)
By Charles M. Riffle, Esq., Kathleen A. Durrans, Esq. and Melissa R. Karlsten, Esq.

When one spouse dies before a marital dissolution proceeding has been concluded, many unresolved issues may remain. The authors explain how different outcomes are dictated, depending on whether family law or probate law governs a particular issue, and they offer strategies that may influence which law will be applied.

Gone but Not Forgotten – Celebrity Estates and Intellectual Property Rights
(page 28)
By Adam F. Streisand, Esq. and Tiffany J. Zwicker, Esq.

The authors discuss federal copyright law and California’s right of publicity statutes and how these laws govern the transfer and control of a deceased celebrity’s intellectual property. The authors explore the additional complications and questions that arise when California community property and probate law are included in the analysis.

Settlement Agreements “With Legs”: Drafting for Stability and Enforceability
(page 35)
By Shirley L. Kovar, Esq.

This article provides practical suggestions for drafting a settlement agreement that is comprehensive and that achieves finality. The author has included numerous sample clauses for consideration.

  • From the Chair (page 2)
  • From the Editor (page 5)
  • Litigation Alert (page 42)
  • Tax Alert (page 45)
  • Incapacity Alert (page 51)
  • Trust Administration Alert (page 53)

Winter 2004 – Volume 10, Issue 4

Planning Multi-Generation Trusts with the Client
(page 5)
By Margaret R. Roisman

The author discusses the need to address multi-generational possibilities with any client whose estate plan involves the creation of an irrevocable trust, and the issues to be addressed in the conversation with the client.

Protecting and Moving Wealth Forward–An Important Factor Is the Jurisdiction You Select
(page 17)
By Stephen E. Greer

The author compares and contrasts state laws concerning the rights of creditors to reach assets in trust or other planning vehicles such as limited partnerships or limited liability companies. The author also discusses choice of law to protect beneficiaries from creditors.

The Doctrine of Virtual Representation of Incapacitated, Minor, Unborn and Unascertained Beneficiaries in Relation to Notice of and Representation in a Probate Code § 17200 Proceeding
(page 25)
By Josef D. Houska

The author analyzes the doctrine of virtual representation, under which one person represents the interests of beneficiaries not actually represented in the proceeding. The author also discusses the notice requirements of Probate Code § 15804, and relevant case law.

Breaking Up Is Easy to Do: Avoiding Mistakes that Unravel Settlements
(page 36)
By Shirley L. Kovar

The author discusses preventing errors during negotiations that can disturb the stability of the settlement the parties believed existed. The author also addresses avoiding claims by the client against the attorney for malpractice in reaching the settlement.

Divorce Complications in Estate Planning: Unraveling Common Provisions for the Former Spouse
(page 44)
By Thomas B. Garrett

The author discusses pitfalls and complications arising from undoing an estate plan when a married couple subsequently divorces. The author discusses problems that arise under state law, as well as potentially adverse income and transfer tax consequences. The author points out that these problems may exist in straight-forward estate plans as well as sophisticated estate plans.

Ode to the Estate Tax Return…A Poetic Approach to Form 706, Audits and Estate Planning
(page 54)
By Keith Schiller

Estate tax return preparation suggestions, audit tips, and tax planning recommendations are highlighted by poetic verse, and followed by insightful discussion in this whimsical– and pragmatic — article.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Trust Administration Alert (page 62)
  • Litigation Alert (page 65)
  • Legislation Alert: Family Law (page 68)
  • Selected Federal Tax Legislation, Cases & Rulings (page 69)

Fall 2004 – Volume 10, Issue 3

A Legislative Proposal to Abolish Enforcing No Contest Clauses in California
(page 6)
By Neil F. Horton

The author summarizes the legislation that the Trusts and Estates Section Executive has sponsored to abolish enforcing no contest clauses and the reasons for it. The proposal would not enforce in terrorem clauses, but would impose an attorneys fees award on contestants who prosecuted or defended actions without reasonable cause.

Why Repealing the No Contest Clause Is a Good Idea
(page 9)
By John A. Hartog, Neil F. Horton, and Shirley L. Kovar

The authors argue the reasons for repeal. As a result of courts’ liberal interpretation of no contest clauses and the complex legislative response, a careful attorney preparing an estate plan containing a no contest clause cannot reasonably predict how a court will enforce it. The present morass can best be resolved by repeal and the fee shifting mechanism of the proposal.

California’s No Contest Statute Should Be Reformed Rather Than Repealed
(Page 18)
By James B. MacDonald and Randolph B. Godshall

The authors argue that no contest clauses have been valid in California for more than 100 years and advance important public policies. They argue for reforms that will address the current problems in the administration of California’s no contest clauses, while retaining their underlying objective and important social policy of allowing testators to control their gifts.

No Contest Clauses Need to Be Reformed, Not Abolished
(page 27)
By Adam F. Streisand, Esq. and Albert G. Handelman, Esq.

The authors argue that recent reforms to the Probate Code have shown great promise and have simply not been given ample time. They believe that the system may be broken, but it is not beyond repair. The authors argue for a uniform effective date to Probate Code § 21305.

A Practitioner’s View
(page 31)
By David A. Baer

The author argues that the frequent use of Probate Code § 21320 petitions is creating substantial additional expense and delay in probate litigation. The author contends that in many cases an appeal from the declaratory judgment is filed, resulting in a delay of at least another year and potentially far longer. The author then observes that delay has a greater potential to result in prejudice in probate litigation than in most other kinds of litigation due to the likelihood that important witnesses are elderly or infirm.

  • From the Chair (page 2)
  • From the Editor (page 4)
  • Incapacity Alert: Medi-Cal (page 33)
  • Litigation Alert (page34)
  • Summary of Selected 2004 Probate and Trust Legislation (page 37)
  • Selected Federal Tax Legislation, Cases & Rulings (page 38)

Summer 2004 – Volume 10, Issue 2

Alice in Tulsa-land: The Dobler Effect on Creditors of Revocable Trusts
(page 4)
By John A. Hartog and Bart Schenone

The authors compare and contrast the procedures available to creditors in probate proceedings, summary administration proceedings, and in revocable trust administrations. The authors point out several traps for the unwary in these different actions. The authors then discuss the burden placed on creditors of revocable trusts in consequence of recent case law developments.

Alternatives for Funding Gifts to Minors
(page 18)
By Linda J. Retz, Esq.

The author describes several different options that have become available to persons wishing to make gifts to young family members without petitioning the court to have a guardian of a minor beneficiary’s estate appointed. The article examines the options, from the simplest to the more complex.

The PI Lawyer: Different Animal, Same Stripes
(page 27)
By Adam F. Streisand

The author brings a new definition to “PI” lawyer, explaining that the Uniform Principal and Income Act, together with the Prudent Investor Act, have created a new category of plaintiff’s attorney. The author then sets out possible defenses for trustees, and also describes potential statutory reform.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 33)
  • Selected Federal Tax Legislation, Cases & Rulings (page 37)

Spring 2004 – Volume 10, Issue 1

New Domestic Partnership Legislation and Its Impact on Estate Planning and Administration
(page 4)
By Sondra J. Allphin

This article on the recently enacted AB 205 discusses the new legislation on Domestic
Partners. The changes scheduled to take effect on January 1, 2005 should cause practitioners to discuss these changes with clients who are, or who may become, Domestic Partners. Beginning in 2005, Domestic Partners will have extensive intestacy rights, and will generally have community property rights akin to surviving spouses.

From Roles to Rules: A New Model for Managing Family Dynamics in the Estate Planning Process
(page 19)
By John W. Ambrecht, Esq. Howard Berens, M.D. Richard Goldwater, M.D.

The authors discuss estate planning for families who own businesses and other significant
assets. The authors address circumstances that often present difficulties that derive from a
family’s internal dynamics and psychological issues. The article provides case examples and discusses ways in which trust and estate practitioners can deal with a family’s psychological issues in the planning process.

Drafting Readable Petitions for Court Review
(page 30)
By Carmen Alberio

The author discusses several techniques for lawyers to assist the court in reviewing the pleadings submitted by advocates. Her suggestions to make our petitions readable and effective will be useful to all practitioners who file pleadings.

  • From the Chair (page2)
  • From the Editor (page 3)
  • Litigation Alert (page 34)
  • Selected Federal Tax Legislation, Cases & Rulings (page 39)
  • Legislative Alert (page 46)

Winter 2003 – Volume 9, Issue 4

Looking at Medical Privacy Rules from an Estate Planner’s Perspective
(page 5)
By Neil F. Horton, Esq.

The author reviews the difficulties which may be faced by estate planning attorneys under the HIPAA regulations and CMIA and suggests possible approaches for obtaining needed information.

HIPAA Privacy Rules: What’s an Estate Planner to Do?
(page 13)
By Paul L. Basile, Jr., Esq.

The author presents drafting suggestions to address the requirements of the HIPAA regulations and CMIA while enabling fiduciaries to do their jobs.

The Dead Hand Writes – And, Having Writ, Moves On: The Increasing Prevalence of No Contest Litigation In California
(page 18)
By John A. Hartog, Esq. and Charles P. Wolff, Esq.

The authors review the evolution of “no contest” law in California and discuss proposals for legislative changes to address problems under current law.

Death of a Litigant: What is a Trusts and Estates Litigator to Do?
(page 29)
By Stacie S. Polaskuk, Esq.

The author explains the procedural difficulties arising from the death of a party to litigation and presents specific ideas for properly handling such an occurrence.

Adjustment Powers, Unitrusts and Annuity Trusts – the New “Income Definition” Regulations
(page 36)
By Russell G. Allen, Esq.

The author considers the new Treasury Regulations defining trust “income,” suggests drafting approaches for maximum flexibility and ponders potential California clean-up

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 42)
  • Federal Tax Alert (page 47)
  • Administration Alert (page 56)

Fall 2003 – Volume 9, Issue 3

The Use of Family Investment Companies in Estate Planning
(page 5)
By Richard S. Kinyon, Esq.

The author reminds us of the many practical uses of family business entities as investment vehicles and reviews important tax rules which often are applicable to them.

Utilizing the Law to Give Your Clients Control Over their Cemetery and Funeral Arrangements
(page 53)
By Timothy Applegate, Esq.

The author explains the laws which enable a client to control the arrangements which will be made after his or her death for disposition of his or her remains.

What Clients Can Teach Us
(page 62)
By William H. Soskin, Esq.

The author reflects on the opportunities for personal growth inherent in our interactions with clients, and presents two examples from his own practice.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 64)
  • Federal Tax Alert: Selected Federal Tax Legislation,Cases & Rulings (page 68)
  • Incapacity Alert (page 75)

Volume 8, Number 3 -Fall 2002

A Risk Primer for Investment Fiduciaries: With Special Attention to the Management of Endowment Funds
by Patrick J. Collins, Ph.D., CLU, CFA
Our fiduciary clients handle signficant investment responsibility, including the need to assess risk in evaluation investment alternatives. The author provides describes a number of ways that investment professionals analyze risk to help us and our fiduciary clients carry out these responsibilities.

Alaska’s Five Year Experience With Self-Settled Discretionary Spendthrift Trusts
by David G. Shaftel, Esq.
The author reports from Anchorage, Alaska, on the experiences of practitioners there in response to Alaska’s easing the rules governing grantor spendthrift trusts and repealing the rules against perpetuities.

Ninth Circuit Reverses Position on Time Period For Refund Claims Involving Late Filed Tax Returns
by James R. Chisholm, Esq.
The author describes the hisotry of taxpayers’ desputes with the internal Revenue Service Concerning how to seek a tax refund when the tax return is filed late and the Ninth circuirt’s recent protaxpayer decision in Omohundro v. United States.

  • From the Chair
  • From the Editor
  • Caught in the ‘Net
  • Litigation Alert
  • Federal Tax Alert
  • Nominating Committee

Summer 2003 – Volume 9, Issue 2

The Kaleidoscopic World of Family Limited Partnerships: Issues to Note En Route to the Successfully Planned California Real Estate Family Limited Partnership
(page 5)
By Steven D. Anderson, Esq. and Quynh T. Tran, Esq.

The authors explain that issues affecting California real estate family limited partnerships far transcend the transfer tax arena, dictating a multi-disciplinary approach encompassing transfer, property and income tax law, and trust/estate considerations.

The Basics of Derivatives for Trust and Estate Lawyers: Puts, Calls, Collars and Forwards
(page 23)
By James B. Ellis, Esq.

The author familiarizes trust and estate lawyers with some common derivatives, describes their use in trusts, and outlines how they are taxed.

Diversification: Recent Legal and Academic Perspectives
(page 35)
By Patrick J. Collins, Ph.D., CLU, CFA

The author examines the tension between traditional fiduciary investment patterns and judicial interpretations of trust language, on the one hand, and academic research regarding true investment diversification on the other.

Client-Driven Estate Planning: A Different Approach to Estate Plan Design
(page 43)
By J. Christopher Toews, Esq.

The author reminds trust and estate practitioners that drafting for clients rather than themselves can eliminate much of the confusion that often plagues clients.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 51)
  • Selected Federal Tax Legislations: Cases & Rulings (page 55)

Spring 2003 – Volume 9, issue 1

Federal Securities Law and Administration of the Grantor Retained Annuity Trust
(page 5)
By Diana Hastings Temple, Esq. and Nicholas Unkovic, Esq.

The authors help to untangle the thicket of federal securities laws issues which arise in the context of a GRAT funded with a company founder’s publicly traded stock.

A Mechanism to Empty the Bypass Trust
(page 11)
By Margaret M. Hand, Esq.

The author explains an estate planning approach which can enable a cooperative family to empty a bypass trust no longer needed to meet the family’s tax planning goals.

Navigating the New Domestic Partner Rules
(page 14)
By Mark Powell, Esq.

The author provides insight into estate planning for domestic partners in light of the continuing barriers to effective dispositive and tax planning despite many legislative changes.

Tapping the Trust to Fund the Battle: When Trustees Can Use Trust Funds To Litigate With Beneficiaries
(page 21)
By Adam F. Streisand, Esq. and Miguel Sanqui, Esq.

The authors bring clarity to the dilemma faced by a trustee in determining when it is appropriate for the fiduciary to engage in litigation involving beneficiaries at the trust’s expense.

Modification and Update of Simplified Chart of Distribution Choices Following Death of Participant of Qualified Plan/IRA under Final Regulations
(page 26)
By Scott Edward Darling, Esq.

The author updates his highly useful chart which illustrates the distribution choices availableto the designated beneficiary of a qualified plan or IRA account.

  • From the Chair (page 2)
  • From the Editor (page 3)
  • Litigation Alert (page 28)
  • CA IncomeTax Alert (page 33)
  • Alert on AB21 (page 34)
  • Alert: Statute of Limitation for Legal Malpractice (page 37)
  • Federal Tax Alert (page 38)

Volume 8, Number 4 – Winter 2002

What A Long Strange Trip It’s Been: The Past, Present and Future of Equity Collateral Split-Dollar
by Ellen H. Whelan, Esq. and Kristopher E. Storti, Esq.

With Notice 2001-10, Notice 2002-8 and new proposed regulations, the IRS has developed a new system of rules governing the taxation of life insurance purchased under split-dollar arrangements. The authors explain the chronology of these recent developments, analyze the law today and recommend planning strategies for practitioners and their clients.

A Practitioner’s Guide to the Change in Ownership Rules
by Frayda L. Bruton, Esq.

In 1978, the California property tax rules changed dramatically with the adoption ofProposition 13. Since then these rules have been revised considerably by subsequent voterapprovedpropositions, enabling legislation and litigation. The author provides acomprehensive review of the current state of the law.

The Community Foundation Value Proposition: An Introduction to Community Foundations and the Services they Provide to Estate Planners and their Clients
by Terence Mulligan and Chris Nicholson

The subject of charitable giving has changed profoundly in recent years. The authors review recent changes in the charitable giving marketplace, provide a background on the community foundation field in California and illustrate the services that these organizations offer to estate planners and their clients.

Mediation in Trust and Probate Practice
by Kay E. Henden, Esq.

The author reviews the use of mediation in the various court systems and administrative agencies serving trust and probate practice in California. The author reports the results of a recent survey of courts, agencies and practitioners regarding the success of mediation today.

Early Termination of Irrevocable Trusts
by William H. Soskin, Esq.

Given the 2001 Tax Act, estate planners must consider methods for the future termination of otherwise irrevocable trusts. The author examines: (1) how our clients can take advantage of existing California statutes that permit early termination of trusts; and (2) drafting ideas to facilitate the termination of an irrevocable trust by an independent or independent trustee.

  • From the Chair
  • From the Editor
  • Litigation Alert
  • Federal Tax Alert

Volume 8, Number 2 – Summer 2002

Mellinger, Fontana & Valuation Lessons
by Owen G. Fiore, Esq.
The author reports from the trenches on recent Tax Court litigation, including the author’s representation of the taxpayer in Fontana v. Commissioner.

The Tax Aspects of the New Uniform Principal and Income Act
by James L. Deeringer, Esq.
The author describes the recent complete restatement of California’s principal and income act. The author explains how the changes offer trustees new powers and the flexibility to achieve better and more equitable economic results in trust administration. Finally, the author analyzes the uncertainties about the tax treatment of a trustee’s exercise of these new powers.

Subchapter J: The Proposed Section 643(b) Regulations, the Definition of Income and the Allocation of Capital Gains
by James R. Chrisholm, Esq.
Total return trusts — also called private unitrusts — are becoming popular with some drafters, and many states have passed recent legislation modifying traditional income and principal accounting rules. The author reviews the IRS’s response to this phenomenon in its proposed regulations governing allocation of a trust’s income between an estate or trust and its beneficiaries.

Agatha Christie, Probate Litigator: Proving a Will Contest Through Circumstantial Evidence
by Michael B. McNaughton, Esq.
Will contests based on mental incapacity of undue influence, by their nature, often must be proven by circumstantial rather than direct evidence. This article describes legal principles and offers practice techniquest that will assist a probate litigator to successfully prosecute a will contest through circumstantial evidence.

  • From the Chair
  • From the Editor
  • Retirement Plans Alert
  • Litigation Alert
  • Federal Tax Alert
  • Ethics Alert

Volume 8, Number 1 – Spring 2002

Asset Protection: An Overview of Prudently Managing and Structuring One’s Assets
by Robin P. Jamplis, Esq.
The author reviews a range of strategies and techniques, both simple and complex, to be considered for the client concerned about asset protection.

New Rules for Allocating Generation-Skipping Transfer Tax Exemption
by Laurelle Gutierrez-Lundquist, Esq.
The author discusses the new automatic GST excemption allocation rules, including suggestions to avoid wasting of GST exemption, and to take advantage of the retroactive allocation of GST exemption.

California Irrevocable Trust: A Preferred Strategy for Protecting the Family Residence from Medi-Cal Recovery Claims
by Conrad M. Wilkinson, Esq. and Patricia J. Wilkinson, Esq.
The authors compare several alternatives to insulate a family residence from Medi-Cal recovery claims.

The Jury Is Back: Where There’s A Will, Finding New Ways
by Adam F. Streisand, Esq.
The author criticizes recent pleading efforts by the plaintiffs bar to obtain jury trials of will contests.

Charts to “Gifts to Minors After 2001: Minors’ Trusts, Qualified Tuition Programs, Education IRAs and Custodial Accounts”
Supplement to Winter 2001 Issue
These charges illustrate and compare investment results and other issues in selecting among various methods of making gifts to minors and accompany the article published in the Winter 2001 issue.

  • From the Chair
  • From the Editor
  • Legislation Alert
  • Federal Tax Alert
  • GST Tax Alert
  • Litigation Alert
  • Caught in the ‘Net
  • Luther J. Avery: An Appreciation
  • John A. Cohan: A Memorial

Volume 7, Issue 4 – Winter 2001

Keeping the “Family” in the Family Home: Special Planning Challenges Posted by QPRT Trusts
by Steven D. Anderson and Chang H. Chae
The author illustrate creative uses of Qualified Person Residence Trusts in five illuminating case studies.

Gifts to Minors After 2001: Minors’ Trusts, Qualified Tuition Programs, Education IRAs and Custodial Accounts
by William H. Soskin
The author discusses the advantages and disadvantages of four different approaches to funding education for minors.

The Transfer Tax Treatment of Gift to Minors
by Jeffrety T. Antonchuk
The transfer tax issues of irrevocable trusts, qualified state tutuition programs, educational IRAs and custodial accounts are examined.

Community Property Retirement Benefits and IRAs
by Edward V. Brennan
The community property aspects of retirement planning, including the use of community property agreements, transmutations, and the aggregate theory.

Naming a Trust as Beneficiary of a Retirement Plan or IRA
by Edward V. Brennan
A discussion of issues to be considered before diesgnating a Trust as beneficiary of a retirement plan or IRA.

California 2001 Legislation Affecting Probate, Trusts, Estate Planning, Guardianships and Conservatorships
by James R. Birnberg
The Quarterly’s annual Summary of Legislation for the coming year.

  • From the Chair
  • From the Editor
  • From the Editor
  • Legislation Alerts
  • Federal Tax Alert
  • Litigation Alert
  • Mike’s Minutiae
  • Caught in the ‘Net

Volume 7, Issue 3 – Fall 2001

Issues in Interstate Transfer of Trusts and/or Trustees
by Kay E. Henden
The benefits and perils of transferring the location of a trust from one state to another, including a discussion of inadvertent transfer

The Flip-Side of Valuation Discounts
by Keith Schiller
The author identifies potential negative consequences of valuation discounts.

Life (Insurance) After Tax Reform: Advising Clients in Uncertain Times
by Philip B. Feldman
A guide to life insurance planning in the midst of uncertainties following tax reform.

Expanding Adoption Rights May Create Havoc For Estate Planners
by John W. Ambrecht and Dibby Allan Green
A case study and discussion of the changing face of adoption law in California.

Entrepreneurial Charity: Guiding Donors and Nonprofits Alike in the Minefield of Venture Philanthropy
by Steve D. Anderson and Penelope C. Greenberg
A look at the new entrepreneurial approach to philanthropy and a discussion of the issues involved in this active form of charitable giving.

  • From the Chair
  • From the Editor
  • Trust Accounting Alert
  • Federal Tax Alert
  • Litigation Alert
  • Caught in the ‘Net
  • Technology Now

Volume 7, Issue 2 – 2001

The Valuation Spectrum – A Winning Valuation Discount Strategy
by Owen G. Fiore, Esq.
A guide to maximizing valuation discounts and minimizing the opportunity for a successful Internal Revenue Service challenge.

Diversification, Due Care and the Duties of an ILIT Trustee
by Patrick J. Collins, Ph.D., CLU, CRA
A discussion of the risks that ILIT trustees take when failing to diversify insurance holdings in an ILIT.

Drafting Advance Health Care Directives
by William H. Soskin, Esq.
The statutory form and the CMA form are reviewed and a prototype form is provided.

California Trustee Compensation in Practice
by Robert S. Tippett, Esq.
A survey of corporate and individual professional fiduciary fees and a sample calculation.

Family Law Presumption and Passing Property at Death
by Marshal A. Oldman, Esq.
A discussion of relevant Family Code and Probate Code provisions and a survey of recent case law.

  • From the Chair
  • From the Editor
  • Legislative Alert
  • Selected Federal Tax Legislation, Cases & Rulings
  • Litigation Alert
  • Mike’s Minutiae
  • Caught in the ‘Net
  • Ethics Committee Alert

Volume 7, Issue 1 – Spring 2001

The Munificent Conservation Easement
by William T. Button, Esq.
An analysis of the charitable conservation easement and its surprisingly beneficial tax consequences.

The Dragon Slays Itself: IRS Simplifies Required Distributions From Retirement Plans
by Michael J. Jones, CPA
A summary of the new IRS regulations and tips as to their current application.

Modification and Update of Simplified Charts of Distribution Choices Following Death of Participant of Qualified Plan/IRA
by Scott Edward Darling, Esq.
An updated version of a flow chart illustrating retirement plan distribution choices.

The Effect of the California Uniform Principal and Income Act on the QTIP Trust Created Under the Revocable Living Trust: A Memorandum to the Client or C.P.A.
by Lorraine Clark, Esq.
A review of principal and income issues arising in the administration of a QTIP trust.

So Your Client is Getting A Divorce: Selected Family Law Issues for Estate Planning Lawyers
by Christopher M. Moore, Esq.
A discussion of several important family law issues of interest to estate planning attorneys.

  • From the Chair
  • From the Editor
  • Legislative Alert
  • Federal Tax Alert
  • Litigation Alert!
  • Ethics Committee Alert

Volume 6, Number 4 – Winter 2000

Ghost Banks
by Richard A. Gorini, Esq.
A discussion of dealing with an old will or trust which names a bank or trust company no longer doing business in California.

California Bank and Trust Company Genealogy
by Richard A. Gorini, Esq. and Margo M. Gorini
A compilation of historical information concerning over 200 banks and trust companies that have been qualified at some point since 1980 to act as a fiduciary in California.

A Pick and Choose Approach to the Marital Deduction Formula
by Paul J. Barulich, Esq.
An analysis of giving a personal representative the post mortem authority to choose an appropriate marital deduction formula provision.

Equity Meets Probate: the Enforcement of Contracts to Make a Will
by Catherine Duggan, Esq.
A review of current California law concerning enforcement of mutual wills and of promises to bequeath property in exchange for services.

Is There a New Trust Code in California’s Future? A Comparison of the Recently Adopted Uniform Trust Code with Current California Trust Laws
by Danell Love and Robert E. Temmerman, Jr., Esq.
The authors describe several provisions of the new UTC which are not in current California law.

  • From the Chair
  • From the Editor
  • California Legislation in 2000 Affecting Estate Planning
  • Incapacity Committee Alert
  • Caugfht in the ‘Net
  • Litigation Alert
  • Income and Transfer Tax Committee Alert
  • Federal Tax Alert
  • Disability Alert

Volume 6, Number 3 – Fall 2000

QPRTs for Co-Tenancy Interests-Do They Work?
by John A. Hartog, Esq. and Linda L. McCall, Esq.
The authors share their experiences trying to obtain IRS approval of qualified personal residence trust status for co-owned property.

Tulsa v. Pope Revisifed: An Interview with the Attorney for Tulsa Professional Collection Services
by Terence Nunan, Esq.and Betty J. Orvell, Esq.
An interview with Randall Rose, the creditor’s attorney in this landmark case, follows a summary of the background and conclusions of the case.

The California Law Revision Commission and Probate and Trust Law Reform
by Nathaniel Sterling
The Executive Secretary of the CLRC explains the purpose of the Commission and reviews its role in the development of California probate and trust law.

California Legislature Speaks Out on the No Contest Clause: Strict Construction and Public Policy
by Shirley L. Kovar, Esq.
A detailed review of the provisions of new Probate Code section 21305 and its effects on the enforcement of no contest clauses.

Proof of Witnessed Wills and the Presumption of Due Execution
by Thomas C. Taylor, Jr ., Esq.
An examination of the statutory rules governing execution of witnessed wills in light of the recent Burdette case.

  • From the Chair
  • From the Editor
  • Legislative Alert
  • Federal Tax Alert
  • Litigation Alert!
  • Ethics Committee Alert

Volume 6, Number 2 – Summer 2000

The Estate Administration of Contaminated Property
by Paul J. Barulich, Esq.
A thorough and practical review of the issues involved in administering a contaminated property and suggestions for ameliorating the potential liability.

How the New California Uniform Principal and Income Act Treats Distributions to Trusts from Qualified Retirement Plans and IRAs
by Michael J. Jones, CPA
The author highlights the problems caused by the new California statutory rules when a trust is the beneficiary of retirement benefits

An Opportunity Amidst Tragedy — A Planning Opportunity Where Death Is Imminent
by Warren A. Sinsheimer, III, Esq. and Kelley A. Bannon, Esq.
Allocation of wrongful death proceeds, if properly handled, may have advantageous tax consequences.

The Ins and Outs of a Virtual Private Network
by James V. Quillinan, Esq.
An introduction to technology that is likely to transform the law office of the future

Summary of Articles (Spring 1995 to Winter 1999)

  • From the Chair
  • From the Editor
  • Federal Tax Alert
  • Ethics Committee Alert
  • Litigation Alert
  • Income and Transfer Tax Committee Alert
  • Legislative Alert!
  • Mike’s Minutiae

Volume 6, Number 1 – Spring 2000

The California Principal and Income Act
by Professor David M. English
An analysis by the Reporter for the Unform Trust Act of the provisions of California’ s new Principal and Income Act.

Anticipating the Estate Tax Audit and Proving the Real Estate Valuation Case in Tax Court
by Keith Schiller, Esq.
Counsel for the taxpayer in a recent Tax Court valuation case describes the legal and tactical issues in that case.

Planning for Clients Who Can’t Say “I Do”
by Mark Powell, Esq. and W. Edward Dean, Esq.
An introduction to legal and tax issues which arise in estate planning for same-sex or unmarried couples.

Revenue Ruling 2000-2 Makes it Easier to “QTIP” a Retirement Plan
by Michael J. Jones, CPA and Steven E. Trytten, Esq., CPA
A discussion of the Internal Revenue Service’s new postion concerning the designation of a qualified tenninable interest property trust as beneficiary of a retirement plan benefit.

The New Health Care Decisions Law: Revision and Supplement to Existing Law
by Leah V. Granof, Esq.
A description of the reorganization and amendment of California’s statutory provisions concerning health care decisions, also including the text of the new Advance Health Care Directive.

Moeller and Boltwood: Confidentiality for California Trustees and Their Attorneys
by Russell G. Allen, Esq.
A discussion of these two opinions by the California Supreme Court concerning the attorney-client privilege and attorney work product doctrine as applicable to trustees and trust beneficiaries

  • From the Chair
  • From the Editor
  • Selected Federal Tax Legislation, Cases & Rulings
  • Incapacity Committee Alert
  • Litigation Alert!
  • Uniform Trust Act Status Report

Volume 5, Number 4 – Winter 1999

As the Trust World Turns
by John A. Hartog, Esq.
A discussion of factors that cause or contribute to disputes in trust administration and some suggestions for coping with them.

Practicalities of Post-Mortem Distribution Planning for Community Property Retirement Benefits and IRAs — Trusts as Beneficiaries, Separate Shares and Aggregate Theory Agreements
by Edward V. Brennan, Esq.
A description of the revised requirements to allow trust beneficiaries to be treated as designated beneficiaries for retirement plan benefits, a discussion of the use of aggregate theory community property agreements and some suggested language and forms.

California 1999 Legislation Affecting Estate Planning, Trusts, Probate Estates, Conservatorships and Guardianships
by James R. Birnberg, Esq.
An outline of 1999 legislation, including the new Uniform Principal and Income Act and the new Health Care Decisions law.

Executors at Odds with Beneficiaries: Anomalies and Strategies in California Creditors’ Claims Statutes
by Kenneth G. Petrulis, Esq.
A discussion of the limitations on the time for filing claims against probate estates and trusts, conflicts between the fiduciary and the beneficiaries in deciding whether to give notice to creditors and problems that remain after recent legislative changes.

Volume 5, Number 3 – Fall 1999

Aggregate Theory Agreements: Don’t Get “Bogg’ed” Down
by Steven E. Trytten, Esq.
An analysis of the use of “aggregate theory” community property agreements to allow a non pro rata division of community property, particularly retirement plan benefits, on the death of a spouse, including a sample agreement.

Trust Design and Investment Strategy for the Next Millennium: Pulling the Plug on Income Rule Trusts
by David A. Diamond, Esq.
A discussion of the use of “prudent return unitrusts” to replace “net income trusts” in light of California’s adoption of the Uniform Prudent Investor Act and the Uniform Principal and Income Act.

A New Principal and Income Act for California — A Long Overdue Update of Existing Law
by James L. Deeringer, Esq.
A review of the purposes of California’s new Uniform Principal and Income Act and a description of the changes it makes to California law.

Updating the No-Contest Clause
by Shirley L. Kovar, Esq.
A discussion of the use of no-contest clauses in light of recent cases, some drafting considerations and a sample clause.

The ABCs of Supporting Organizations: Why They Are Advantageous to High Net Worth Individuals and How Community Foundations Make Them Easier To Establish and Operate
by John M. Kemp, Esq. and Chris M. Nicholson, Esq.
A description of the requirements for supporting organizations, their advantages and how community foundations can facilitate their use by potential donors.

Volume 5, Number 2 – Summer 1999

California Estate Tax: California Offers Deferral in Conformity with IRC Section 6166
by George F. Montgomery II, Esq.
An analysis of 1998 California legislation authorizing deferral of the California estate tax attributable to a closely-held business and changing the interest rate on unpaid estate tax.

A User’s Guide to Transfer on Death Securities Registration
by Warren A. Sinsheimer III, Esq.
A description of the purposes, procedures and some pitfalls under California’s legislation permitting TOD registration.

Transmutation of Separate Property to Community Property: Family Code Section 2640 Lays a Trap for the Unwary
by Christopher M. Moore, Esq.
A discussion of the requirements for an effective waiver of the right to reimbursement for separate property contributions to community property.

Of Fiduciary Bondage: A Look at Bonding Requirements for Retirement Plan Assets in Conservatorship Proceedings
by Terence S. Nunan, Esq. and Robert S. Tippett, Esq.
An exploration of whether retirement plan assets are or should be exempt from bonding requirements.

Viatical Settlements — If It Looks Too Good To Be True…(Part II)
by J.J. MacNab, CFP, CLU, Licensed Life Analyst
A description of the potential risks facing investors in viatical settlements.

A Review of CEB’s California Trust and Probate Litigation
by Marshal A. Oldman, Esq.
A review of a useful resource in both planning estates and presenting contested matters to the court.

Volume 5, Number 1 – Spring 1999

Fiduciary Delegation of Investment Power Under the California Uniform Prudent Investor Act
by John A. Hartog, Esq. and Paul Sanderson, CIMA, CFP
A discussion of the delegation of portfolio design and strategy and of daily investment activity by a fiduciary.

Viatical Settlements — If It Looks Too Good To Be True. . .
by J.J. MacNab, CFP, CLU
A review of considerations involved in deciding whether to sell a life insurance policy to a viatical settlement company.

Will a Probate Court Order for Modification of a Trust Determine Federal Estate Tax Results?
by Albert G. Handelman, Esq.
An analysis of whether a state probate order modifying a trust will be binding for federal estate tax purposes.

Back to the Basics: Using MEDI-CAL to Help with the High Cost of Nursing Home Care
by Donald R. Travers, Esq. and Neil A. Harris, Esq.
A review of the Medi-Cal requirements and procedures to assist in planning for qualification.

Modification and Update of Simplified Charts of Distribution Choices Following Death of Participant of Qualified Plan/IRA
by Scott Edward Darling, Esq., Randolph B. Godshall, Esq. and Michael V. Vollmer, Esq.
Revised and updated flow charts illustrating distribution options for qualified plans and IRAs following the participant’s death.

ERISA and Community Property Rights: Emard v. Hughes Aircraft
by Betty J. Orvell, Esq.
A discussion of the Ninth Circuit’s Emard decision, dealing with preemption of community property rights in insurance proceeds distributed from a welfare benefit plan.

Volume 4, Number 4 – Winter 1998

Is It Prudent and Suitable? Estimating the Value of a Trust-Owned Life Insurance Contract
by Patrick Collins, Ph.D., CLU, CFA
An analysis of an insurance policy’s cost and value from the perspective of a trustee of an insurance trust.

Out-of-State Practitioners in Our Midst? The Impact of Birbrower and Estate of Condon
by Andrew Zabronsky, Esq.
A review of the recent decisions in Estate of Condon and Birbrower, involving the issue of when an out-of-state practitioner may properly receive fees for legal services rendered in California.

Back to the Basics: Administration of Special Needs Trusts
by Donald R. Travers, Esq.
A primer on when and how to use special needs trusts for beneficiaries who are or may be receiving public benefits.

In Propria Persona: When Can a Fiduciary Represent Himself?
by Mary F. Gillick, Esq.
An analysis of the policy considerations involved in whether a trustee should be allowed to represent a trust in court without assistance of separate legal counsel.

Selected 1998 Federal Tax Legislation, Cases, and Rulings
by James M. Allen, Esq.
A summary of many of the federal tax decisions, rulings and legislation of the last year.

California 1998 Legislation Affecting Estate Planning, Trusts, Probate Estates, Guardianships, and Conservatorships
by James R. Birnberg, Esq.
A brief review of California legislation adopted in 1998 of interest to trusts and estates attorneys.

Volume 4, Number 3 – Fall 1998

State Bar Funding Crisis-The Effect on the Sections
by Arthur H. (“Mike”) Bredenbeck, Esq.
A review of the difficulties faced by the Sections of the State Bar as a result of the lack of legislation to allow the Bar to collect dues.

Myths and Realities Regarding Life Insurance Advice
by Patrick J. Collins, Ph.D., CLU, CFA
A discussion of some of the myths and fallacies of the process of purchasing life insurance, particularly through a life insurance trust.

Another Oxymoron: Amending the Irrevocable Trust
by Sandra Price, Esq.
An analysis of non-tax considerations involved in amending or terminating an irrevocable trust under California law.

Simplified Charts of Distribution Choices Following Death of Participant of Qualified Plan/IRA
by Scott Edward Darling, Esq., Randolph B. Godshall, Esq. and Michael V. Vollmer, Esq.
Flow charts illustrating options for the distribution of qualified plan and IRA benefits. [See also the modified charts in the Spring 1999 issue.]

Family Enterprise Planning: The Forgotten Component in the Family Business Succession Plan
by John W. Ambrecht, J.D., MBA, LLM and Ralph M. Daniel, Ph.D.
Developing a successful succession plan for a family business often involves complicated and difficult family and personal issues.

Back to the Basics: Some Thoughts on Drafting
by Donald R. Travers, Esq.
A commentary on drafting some common estate planning provisions.

Ninth Circuit Reduces Value of Estate’s Shares Based on Decedent’s Rule 144 Restrictions
by Philip B. Feldman, Esq. and Keith Evans-Orville, Esq.
An attorney involved in the Ninth Circuit’s recent McClatchy case discusses the decision’s conclusions about the estate tax valuation of restricted stock.

Two Recent Rulings on Gifts of Stock Options
by James B. Ellis, Esq.
The Internal Revenue Service has issued two published rulings approving the transfer of stock options as an estate planning technique.

Volume 4, Number 2 – Summer 1998

A Trustee’s Crime and Punishment: Managing Fiduciary Liability Under the California Uniform Prudent Investor Act
by John A. Hartog, Esq. and Paul Sanderson, CIMA, CFP
A discussion of a trustee’s potential liability for failing to comply with the requirements of the Uniform Prudent Investor Act, with suggestions for actions to minimize the risk of such liability.

Trading Property Can Be Hazardous to Your Adjusted Basis
by Paul Barulich, Esq.
An analysis of issues raised when a taxpayer dies after initiating, but before completing, a like kind exchange under Internal Revenue Code Section 1031.

When Does Influence Become Undue?
by Martin Binder, M.D. and Marita K. Marshall, Esq.
A case study of undue influence in its legal and medical context.

My Uncle Oscar
by Terence S. Nunan, Esq.
An anecdotal description of how “standard” survivorship clauses can produce unintended results.

Volume 4, Number 1 – Spring 1998

The California Trustee’s Attorney-Client Privilege: Leave It Behind When You Resign
by Richard E. Llewellyn, II, Esq.
The impact of the Moeller decision is discussed.

Notification by Trustees: Two Views of the Requirements of New Probate Code Section 16061.7
by Trusts and Estates Group, Carr, McClellan et al. and Kenneth M. Klug, Esq., Lynard C. Hinojosa, Esq. and Bruce S. Ross, Esq.
A point/counterpoint discussion of the new notice and disclosure requirements for trustees.

Elder Law Update: Transfers for Less Than Fair Market Value
by Kathryn Eden “Kate” Smith, Esq.
Recent legislation has affected Medi-Cal planning involving transfers for less than fair market value.

Special Needs Trusts and the Payback Trap
by Sterling L. Ross, Jr., Esq.
Third-party special needs trusts without payback provisions are still permissible.

Dementia and Decision-Making Capacity in Older Adults, Part II
by Patrick Fitzsimmons, M.D.
An evaluation for decision-making capacity by an expert in mental illness may be valuable for an older adult with dementia.

Reflections on the Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel
by Frayda L. Bruton, Esq.
A description of the genesis of the Guide and several ethical dilemmas it discusses.

Volume 3, Number 4 – Winter 1997

1997 California Legislation Affecting Probate, Trusts, Conservatorships and Guardianships
by James R. Birnberg, Esq.
Annual summary of legislation affecting the trusts and estates practice area, including Section’s Omnibus Bill (AB 1172).

The New Self-Settled Trust Statutes
by Karen Cannon, Esq.
This article explores the new Alaska and Delaware statutes authorizing self-settled spendthrift trusts. The discussion focuses on the new statutes’ provisions and the enforceability of the trust’s spendthrift provisions.

Dementia and Decision-Making Capacity in Older Adults, Part I
by Patrick Fitzsimmons, M.D.
Older adults with dementia may have impaired decision-making capacity with respect to estate planning, self-care, contracts, marriage and health care. This article discusses the value of a medical-legal evaluation of decision-making capacity by an expert in mental illness.

Volume 3, Number 3 – Fall 1997

Special Ethics Committee Alert: Opinion on Attorneys Assisting Non-Attorneys in Marketing Trusts Could Be Subject To Discipline
by Section Ethics Committee
The State Bar of California has issued Formal Opinion No. 1997-148 on unethical conduct by attorneys who assist non-attorneys in marketing living trusts.

The U.S. Supreme Court’s Decision in Boggs v. Boggs: What does it Mean to Estate Planners?
by Randolph B. Godshall, Esq.
The Supreme Court has simplified life for estate planners dealing with qualified retirement plan benefits, but has left open issues as to IRAs.

Disclosure of Administrative Advice of a Fiduciary’s Counsel
by Dominic J. Campisi, Esq.
Case law and the practice of professional trustees distinguishes between non-confidential administrative advice and confidential personal advice from a trustee’s attorney.

Book Review: Drafting California Irrevocable Trusts
by Robert L. Sullivan, Jr., Esq.
This review of CEB’s new practice book, Drafting California Irrevocable Trusts, concludes that it would be a practical and useful addition to an estate planning attorney’s library.

Foreign Gifts? Rules Formulated By Count Dracula
by Harry Gordon Oliver II, Esq.
Federal legislation now requires a U.S. citizen or resident to report gifts from foreign nationals. A recent notice provides guidance for reporting the receipt of gifts until regulations are promulgated.

Volume 3, Number 2 – Summer 1997

A Special Mike’s Minutiae
by Michael V. Vollmer, Esq.
This special column completes the two part article on beneficiary designations for IRAs and qualified plans, and contains a practitioner’s checklist and sample forms.

Special Ethics Report: Truth Squad…Success
by Section Truth Squad
The Sections’ Truth Squad reports on the successful settlement of the Alliance for Mature Americans litigation, IRS efforts to halt tax abuse trusts, and two state supreme court decisions on the unauthorized practice of law.

U. S. Supreme Court Rules That ERISA Preempts Testamentary Rights Under State Community Property Laws
by Robert E. Temmerman, Jr., Esq. and Randolph B. Godshall, Esq.
The U.S. Supreme Court has issued its opinion in the Boggs case. The authors, members of the team that wrote the Section’s amicus brief in Boggs, report on the decision.

The California Trustee’s Magical Attorney-Client Privileges: Now You See It, Now You Don’t
by Richard E. Llewellyn, Esq.
The California Supreme Court has granted review of two appellate decisions that reached opposite conclusions as to the attorney client privilege applicable to trustees.

Be A Certified Specialist
by Sterling R. Ross, Jr., Esq.
The author gives five reasons to be a certified specialist and discusses public awareness efforts, including the free directory of certified specialists.

Book Review: California Trust Practice
by Frayda L. Bruton, Esq.
This book review summarizes Matthew Bender’s new California Trust Practice treatise, and concludes that it is an essential library addition for attorneys who handle revocable trust administration after the settlor’s death.

Volume 3, Number 1 – Spring 1997

Tripping Over the Gopher Holes (Part II)
by John A. Hartog, Esq. and Bart J. Schenone, Esq.
The authors explore more traps for the unwary in real property taxation when engaging in planning and probate or trust administration.

Practitioner Checklist — Attorney’s Death or Disability
by the “2Ds” Committee
The Practitioner’s Checklist was developed as an aid to attorneys who take over, sell, or wind down the law practice of a disabled or deceased practitioner. The Checklist suggests steps and considerations that should be taken in the event of death or disability and can be used as a practice management tool to preserve and protect the value of any law practice.

Drafting for Certainty — Defining “Children” in an Era of Change
by Janet Evans, Esq.
The recent California Supreme Court case of Newman v. Wells Fargo, N.A. illustrates the complexity of addressing the exclusion of adoptees and others from class gifts.

A Report on the Oral Argument Before the U.S. Supreme Court in Boggs v. Boggs
by Randolph B. Godshall, Esq. and Robert E. Temmerman, Jr., Esq.
The authors, members of the Section’s Task Force that co-authored the Section’s amicus curiae brief in Boggs, report their observations of the oral argument conducted before the U.S. Supreme Court on January 15, 1997.

Back to the Basics: Tinkering with a Trust
by Warren A. Sinsheimer III, Esq. and Michael C. Ferguson, Esq.
This installment of the Back to Basics series addresses some tools attorneys can consider using to enhance, or limit, flexibility in making changes to trusts.

Volume 2, Number 4 – Winter 1996

Tripping Over the Gopher Holes; An Estate Planner’s Guide to Proposition 13 (Part I)
by John A. Hartog, Esq. and Bart J. Schenone, Esq.
The authors explore many of the traps for the unwary in real property taxation when engaging in estate planning and probate or trust administration.

Summary of 1996 California Legislation Affecting Probate, Trusts, Conservatorships and Guardianships
by James R. Birnberg, Esq.
The Section was successful in having enacted almost all of its legislative proposals (in AB 1467, AB 2751, and SB 392) and in responding to the proposals of others.

Community Property Interests in Retirement Plans: Some Interesting Recent Developments
by Jerry A. Kasner, Esq.
Recent developments relating to community property interests in qualified plans and IRAs.

A Post-Mortem Surprise: Problems Caused by Standard Trust Depreciation Clauses
by Richard A. Gorini, Esq.
Using standard clauses for creating depreciation reserves in trust administration can lead to litigation — suggestions are offered in this article for avoiding such exposure.

Nursing Home Resident Care
by David W. Tate, Esq.
Nursing home residents are a rapidly growing segment of the population, making it increasingly important for legal professionals and the population at large to be informed about nursing home resident care standards.

Volume 2, Number 3 – Fall 1996

Impact of S.B. 141 on Valuation Discounts for Interests in California LLCs
by John C. Suttle, Esq. and Mark M. Tucker, Esq.
An analysis of S.B. 141’s impact on valuation discounts in family limited liability companies with a comparison of the discounts available in valuing interests in family limited partnerships.

Mediating Probate & Estate Disputes
by Michael E. Klingler, Esq. and David W. Hettig, Esq.
This article discusses the growing use of mediation in resolving probate and estate disputes, how the process works, and what the resulting benefits can be to both clients and their attorneys.

The Use of Mediation in Estate Planning, A Preemptive Strike Against Potential Litigation
by John A. Gromala, Esq.
A mediator’s separate confidential discussions with interested parties will help clients focus on and resolve suppressed sensitive issues that might abort the planning process or result in a flawed plan.

Proposed Qualified Personal Residence Trust Regulations Issued
by Diana Hastings Temple, Esq.
This article analyzes the new QPRT proposed regulations, and suggests language necessary to comply with them.

California Property Tax: Clearing a Path Through the Legislative Underbrush
by Frayda L. Bruton, Esq.
This article explores the application of property tax exclusions to common estate planning situations.

Back to the Basics: Drafting Part II
by Michael C. Ferguson, Esq. and Warren A. Sinsheimer, Esq.
This Back to the Basics article focuses on drafting “boilerplate” and reviews some of the issues confronted in drafting common boilerplate clauses.

Federal Trends Affecting Medi-Cal Planning
by Jeffrey T. Killeen, Esq.
The author offers a summary of recent federal legislation affecting Medi-Cal planning, including the 1996 asset transfer criminal penalty.

Volume 2, Number 2 – Summer 1996

Report of the Executive Committee on the Proposal for Informal Decedent’s Estate Administration
by Section Executive Committee
The Estate Planning, Trust and Probate Law Section’s Executive Committee has adopted the recommendation of the Informal Decedent’s Estate Administration Committee that the informal estate administration proposal not be carried forward as proposed legislation.

California’s New Delegation Rule: A Practical Approach with Unanswered Questions
by Kathryn A. Ballsun, Esq.
California’s new Prudent Investor Act authorizes a trustee to delegate the trustee’s investment responsibilities; practical aspects of implementing the new delegation rule include determining the effect of such delegations upon a trustee’s compensation.

Back to the Basics: Drafting, Part I
by Michael Ferguson, Esq. and Warren A. Sinsheimer, Esq.
This Back to the Basics article focuses on drafting and (recognizing that most practitioners suffer from chronic, low-level “form anxiety”) reviews drafting sources, preferences, and styles.

Estate Planning After Dad Dies: Should Mom Gift or Disclaim?
by Thomas Curtiss, Jr., Esq. and Charles A. Shultz, Esq.
Because of the tax-exclusive nature of the federal gift tax and the tax-inclusive nature of the federal estate tax, substantial gifts by a surviving spouse are generally preferable to estate equalization.

Creditor’s Rights in Probate and Trust Proceedings: Constitutional Issues
by Terence S. Nunan, Esq.
The Fourteenth Amendment, the Supremacy Clause, and the Full Faith and Credit Clause may change the rules for probate lawyers with respect to creditor’s issues.

Volume 2, Number 1 – Spring 1996

Representing the Absconding Fiduciary: The Ethical Issues
by Monica Dell’Osso, Esq.
Representation of the absconding fiduciary poses a number of ethical problems for the attorney. The limited solutions available under the Rules of Professional Conduct are often less than satisfactory.

Back to the Basics
by Michael C. Ferguson, Esq. and Warren A. Sinsheimer, Esq.
This is the first of a series of regular columns which will revisit some familiar issues. This column discusses self-proving wills and custodianships for minors.

New Form Available for Probate Real Property Sales
by Valerie J. Merritt, Esq.
A new, improved form is available for bids to purchase real property subject to probate court jurisdiction.

Transmutation of Property Between Spouses-Another Point of View
by J. Richard Johnston, Esq.
The author disagrees with the prevailing view that Family Code Section 853(a) requires a written declaration for the transmutation of marital property from community property to joint tenancy or vice versa.

Volume 1, Number 4 – Winter 1995

Executive Committee’s Analysis of Proposal for Informal Administration of Decedents’ Estates in California
by Informal Administration Committee
The Executive Committee of the Estate Planning, Trust and Probate Law Section has proposed legislation for informal estate administration as an alternative to court-supervised administration. The Executive Committee’s analysis of the proposal is published for comment.

Lessons From Estate of Irwin Re: Publication and the Rights of Omitted Spouses
by Richard A. Gorini, Esq.
The Sixth District has ruled that any post-marital codicil defeats claims under Probate Code Section 6560, raising questions of policy and casting doubt on generally accepted norms of will drafting.

Summary of 1995 Legislation
by James R. Birnberg, Esq.

The Effect of Elder Abuse Law on the Conduct of Estate and Trust Litigation
by Noel M. Lawrence, Esq. and James A. Barringer, Esq.
Elder abuse claims can profoundly influence the resolution of all disputed issues in estate or trust cases. This article addresses certain problems facing plaintiffs, defendants and both, in such litigation.

“The Punctilio of an Honor the Most Sensitive”: An Uncomfortable Perch
by Dominic J. Campisi, Esq.
A survey of the ethical problems confronting estate and trust practitioners, how to deal with clients and conflicts you may not know you have.

A Brief Introduction to the Due Process In Competence Determinations Act
by Marc B. Hankin, Esq.
Determinations of legal mental capacity to contract, consent to medical treatment, marry, execute trusts or do almost anything else are now governed by a new set of mental science oriented statutes.

Volume 1, Number 3 – Fall 1995

Undistributed Income From Pass-Through Entities-The Trustee’s Dilemma
by James L. Deeringer, Esq. and Silvio Reggiardo, III, Esq.
Undistributed income from a partnership, S corporation, or other pass-through entity can present a trustee with difficult cash flow, income tax, and beneficiary relations problems. Proper drafting can help the trustee avoid these problems.

Winding Up: Do You Want the State Bar As Your Buddy?
by Terry R. Vaccaro, Esq. and Charles G. Schulz, Esq.
Proper planning can avoid the inevitable: having the State Bar as your “buddy” in the event of disability or death.

Radovich v. Locke-Paddon: Is the “Backover Defense” Now Viable in a Legal Malpractice Action for Negligent Estate Planning?
by Michael G. Desmarais, Esq.
Is an attorney less culpable for negligently failing to timely prepare a Will than for negligently preparing a Will? The Sixth District Court of Appeals thinks so.

LLCs In Estate Planning-Part II
by John C. Suttle, Esq.
Part II discusses the impact of IRC sections 2704(a) and (b) in valuing interests in LLCs and contrasts valuation discounts available to such interests with discounts available to limited partnership interests.

Hanging Powers and Interest-Free Loans
by Terence S. Nunan, Esq.
This article discusses the possible transfer tax consequences of unintended interest-free loans by the use of hanging powers.

Specialization: Looking From the Inside Out; It’s Your Program
by James R. Goodwin, Esq. and John A. Hartog, Esq.
This article offers practical insight into the process of board certification and invites estate planning, trust and probate law practitioners to utilize this professional opportunity.

The Valuation Wars-A Change in IRS Battle Strategy?
by Dennis W. Reilly, Esq.
The use of a subtraction method of valuation in “allegedly” abusive transactions may be the latest attempt by the IRS to tax value which legitimately disappears under the fair market value standard.

Suicide and Medical Treatment Decisions for the Incompetent
by Paul J. Constantino, Esq.
Terminally ill clients can be a suicide risk and have the right to know their medical treatment options and the right to accept or refuse medical care.

Volume 1, Number 2 – Summer 1995

LLCs In Estate Planning-Part I
by John C. Suttle, Esq.
Part I discusses valuation discounts available to closely-held business generally and sets the stage for Part II’s analysis of IRC Sections 2704(a) and (b) [in the Fall 1995 issue] by explaining LLCs’ tax and operating attitudes.

How Bad is Bad Faith?
by Richard A. Gorini, Esq.
A study of the definition and development of the concept of bad faith in other legal disciplines, their application to trusts and estates, and proposals for legislation to create a definition for the term as used in the California Probate Code.

Guess What? The IRS Recognizes Survivorship Rights in Community Property
by Jerry A. Kasner, Esq.
A review of the IRS rulings which lead the author to the conclusion that the IRS does recognize community property with right of survivorship.

Oral Contracts Regarding Wills: Sometimes Good Cases Make Bad Law
by Stephen A. Bond, Esq.
An analysis of the law pertaining to oral succession contracts after the decision in Juran v. Epstein, and a proposal for revision of Probate Code Section 150.

Asset Protection and Estate Planning for IRS Qualified and Nonqualified Retirement Plans-Part II
by Peter Spero, Esq.
In California nonqualified plans are excellent asset protection tools; their use, however, is complicated by the value of such plans, which may change with the shifts in the applicable federal rate.

Informal Decedent’s Estate Administration
by James B. Ellis, Esq.
A survey of effective unsupervised procedures in use outside of California that could serve as models for a new California informal decedent’s administration statute.

Trust Distributions to Avoid the Trust Penalty Tax: Problems and Proposals
by David Weston, Esq. and Barry C. Fitzpatrick, Esq.
Probate Code restrictions limit a trustee’s options in distributing income to a custodian for a minor beneficiary to avoid punitive trust income tax rates. The authors propose legislative changes.

Volume 1, Number 1 – Spring 1995

Review of California Creditor Claims Statutes and Proposal for Revisions
by Betty J. Orvell, Esq.
A discussion of current California law vis-a-vis Tulsa v. Pope and proposals for further statutory revisions designed both to increase compliance with the Tulsa standard and to make the creditor claim statutes more “user-friendly.”

An Estate Planner’s Checklist of Some “Plain Vanilla” Approaches to Asset Protection
by Warren A. Sinsheimer, Esq.
A fresh look at several familiar estate planning techniques in the context of creditor protection.

Asset Protection and Estate Planning for IRS Qualified and Nonqualified Retirement Plans
by Peter Spero, Esq.
A discussion of IRS qualified plans as excellent asset protection tools, but ones which must be coordinated with sometimes competing income and estate tax planning.

The Secret, Special Estate and Gift Tax Liens: A Primer
by Sandra Price, Esq.
An introduction to the statutory framework for the creation and divestment of the special estate and gift tax liens created automatically under IRC §§ 6324, 6324A and 6324B without assessment, notice, demand, recordation or filing.

A Tort of “Negligent Disinheritance”?: Point and Counterpoint
by J. Robert Foster, Esq., Michael J. Levy, Esq. and Bruce S. Ross, Esq.
A debate on whether an attorney may be held liable in tort to a disinherited heir where the disinheritance arises as a result of the client’s incapacity that the attorney “negligently” fails to realize.

Community Property Held in Joint Tenancy Title: Have the Transmutation Statutes and Recent Cases Revived the Concept of Joint Tenancy Only for Convenience?
by Valerie J. Merritt, Esq.
An analysis of the issues relating to the concept of “joint tenancy only for convenience” revived by the Petersen case and transmutation statutes.

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