Endless Summons: No Statute of Limitations on Spouse’s Claim for Breach of Fiduciary Duty

The appellate decision in Yeh v Tai (2017) 18 CA5th 953 completely misses the main issue in the case but still makes an important point about breach of fiduciary duty claims against a deceased spouse. Continue reading

Just Passing Through: New Deduction for Business Income Expires in 2026

pass through tax benefit dollarsUnder new IRC §199A, business entity owners may be able to deduct 20 percent of passthrough income. This tax boon, which is set to sunset after December 31, 2025, has many lawyers wondering whether they might personally benefit.

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The Times They Are A-Changing (for Estate Planners)

The corporate tax cut is permanent, but most individual provisions of the Tax Cuts and Jobs Act (Pub L 115–97, 131 Stat 2054) are set to expire for tax years beginning after December 31, 2025. These expiring provisions will tax the ingenuity and patience of estate planners and their clients. What to do? Continue reading

Alas Poor Urick: SLAPP-stick Comedy Relieves Probate Court Drama

Updated 2/1/18: In Gaynor v Bulen (Jan. 23, 2018, D070907) 2018 Cal App Lexis 53, the court held that a petition alleging that trust assets were improperly used in probate litigation was not a cause of action arising from protected activity under the anti-SLAPP statute. Although the alleged breach of loyalty may have been carried out by the filing of probate petitions, the petitioning activity itself was not the basis of the claim.

Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Continue reading

Settlors and Shareholders: Who Has Standing to Sue for Elder Abuse?

The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600–15675) provides enhanced remedies for “financial abuse” that results in a loss of property of someone over age 65. This can get complicated because the property interests of elders may not be held in their own name; they often are held in a variety of ownership vehicles for estate planning or business reasons. This raises the question, may the elder sue under EADACPA for injury to those property interests? The answer is, it depends. Continue reading

Revocation-on-Divorce Statute May Have Retroactive Reach

When the marriage is over, former spouses usually want their property to go somewhere else when they die. At least the revocation-on-divorce statute assumes this is so and renders transfers made to the other spouse null and void. The statute became effective in 2001, but it now looks like it may affect transfers made before then. Continue reading

Using Life Estates to Protect Property and Avoid Reassessment

Proposition 13 has allowed many homeowners and other property owners to perpetuate low historical assessments for years or generations using the interspousal exclusion and parent-child (or grandparent-grandchild) exclusion from a change in ownership at death. Rev & T C §§63, 63.1. These property tax opportunities are an important part of California estate planning, and life estates play an important role in making it work. Continue reading

New Foreclosure Protection for Deceased Borrower’s Successor in Interest

115754429California law gives residential borrowers various rights and remedies when it comes to foreclosure prevention alternatives against a mortgage servicer, mortgagee, trustee or beneficiary under a deed of trust, and authorized agent. But what happens after the borrower’s death? Continue reading

IRS Left Holding the Bag After Investors Madoff with Millions

tax_100889473How much is a fictitious brokerage account worth, and what happens when it loses value? The IRS and the Tax Court have struggled with issues arising from the Bernie Madoff scandal. The answer may depend on when (and how) you ask the question. Continue reading

Dead Man Balking: Writ of Execution Doesn’t Work After Debtor’s Death

thinkstockphotos-501575596Updated 5/22/18: In County Line Holdings, LLC v McClanahan (May 2, 2018, B2778790) 2018 Cal App Lexis 392, the court held that a creditor could enforce a previously recorded judgment lien on a deceased debtor’s property more than 1 year after the debtor’s death.

So you have a money judgment, but the debtor dies before you can collect. Never mind. You still have a judgment lien on the debtor’s estate. Right? Continue reading