ONCALL
...Family Law
......Death of a Spouse
26 Cards On This Topic:

If a will creates a trust and names a trustee, that trustee has standing to seek a court order determining their right to take charge of the trust assets.

Restraint on alienation encumbering beneficiaries' fee simple interest, stating they could only sell below market and to other beneficiaries was an unreasonable restraint on alienation in violation of CC §711.

Probate court correctly declined to include the proceeds from H's IRA in W's omitted spouse share because those proceeds were not part of his "estate."

Nothing in PC §17200 limits pet. standing before probate court to only trustees and trust beneficiaries or otherwise constrains ct. from conferring standing on others asserting claim against trust; heir who was never a trust beneficiary has standing.

Father’s omission of four known pretermitted Cs and naming only the two Cs resulting from marriage showed his intent that only those two Cs should inherit; unknown pretermitted C not entitled to share.

Settlement agreement did not release beneficiary's claims for fiduciary duty breach against trustee; Legislature intended a broad definition of standing in elder abuse cases.

Although the lack of a proper signature on trustee's emails and questionnaire was sufficient to find no amendment to the family trust, the writings also did not express an intent to amend the trust by the writings themselves.

Where Trust contained a no contest clause, daughter's share of Trust's assets was not exempt from forfeiture simply because it was specified by an amendment without a no contest clause.

Trust may be modified via PC §15401 unless the trust instrument provides a method of modification it explicitly makes exclusive, or otherwise expressly precludes using revocation procedures for modification.

Stepson had standing to claim natural parentage heirship even though he was not the decedent's biological child.

Family's wrongful death suit against H's employer properly dismissed where his injury and death were employment related, solely within the scope of workers' comp., and no exceptions applied.

Compliance with two-witness requirement not required where former fiancée seeking to probate a letter showed by clear and convincing evidence that testator intended it to be her will when she signed it.

Applying the reasoning of Balistreri and King, the trust terms governing amendments control settlor's purported amendment of a revocable trust.

W's petition to vacate H's conservatorship properly stricken where H lacked capacity, W used myriad means to unduly influence him, and interfered with his appointed counsels.

Child of a marriage under FC §7540 marital presumption is barred from proving a parent-child relationship with a deceased 3d person for purposes of inheritance under intestate succession.

CA probate court to apply CA law in determining if parent-child relationship exists as a condition to heirship claim re CA domiciliary's estate; immaterial whether IN's laws would not recognize such a relationship.

SJ for D reversed where court did not consider effect of divorce decree on ex-H's life insurance policy, and ex-H's agent continued to assure W she was sole beneficiary.

The signed MSA constituted a “complete property settlement” within the meaning of Prob. Code §145 and waived H’s rights in W’s estate as a surviving spouse.

PMA provision waiving all rights upon death of spouse precludes survivor from being named estate's personal representative.

When a trust specifies an amendment procedure, a purported amendment made in contravention of that procedure is invalid.

Under Prob. Code §15402, the method of modification is the same as the method of termination, barring a contrary provision in the trust.

The default rule is form of title controls at death, not the community property presumption.

A party receiving notice of court-ordered probate mediation, who fails to participate, is bound by the result.

The evidence failed to show trustor had a "mental health disorder” as contemplated in Prob. Code §6100.5 (a)(2) at the time she executed the trust instrument.

Cs’ actions of taking advantage of H’s physical weakness and distress and physically separating him from his atty. prevented him from confirming his estate plan and constituted the tort of intentional interference with expected inheritance.

If testamentary documents show intent to exclude potential children, even unknown ones, then decedent did not fail to provide for an unknown child solely because he was unaware of the child’s birth.