Trusts & Estates Bulletin

A Compendium of Recent Cases

  Brought to you by LACBA's Trusts & Estates Section  *  Volume IV, Number 2  *  October 2008 
An E-Publication of the Los Angeles County Bar Association

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IN THIS ISSUE:

 

Trusts & Estates Bulletin is published monthly by the Trusts & Estates Section of the Los Angeles County Bar Association (LACBA), thanks to Co-Editors:
David C. Nelson, Loeb & Loeb LLP, dnelson@loeb.com,
Amy L. McEvoy,
Nelson J. Handy.


A Warm Welcoming to All Section Members

Welcome from the 2008-09 Trusts and Estates Executive Committee. We have exciting news for you and a request to you.

The news is that we are expanding our Monthly Bulletin. In addition to Compendium of Recent Cases, we have added a section to provide announcements to you and a section to provide practice tips for your trusts and estates practice.

In Announcements, we will provide to you information regarding upcoming CLE, information from the courts, pro bono opportunities, and other matters of interest to trusts and estates practitioners.

In Practice Tips, we will provide valuable tips from fellow practitioners to assist you in your practices.

That takes us to our request to you. We would like your input. Please send to us your practice tips that will assist your fellow practitioners avoid some of the pitfalls that we have all navigated around (and sometimes through). Further, we would also like to hear from you regarding your suggestions for additional services that the Trusts and Estates Section can provide to you.

Please send your suggestions and practice tips to: webmaster@lacba.org.

Lastly, thank you for your participation in the activities of the Trusts & Estates Section.


A Compendium of Recent Cases


Cases appear in chronological order, with the oldest cases appearing first.

-Taxation-
Where marital settlement agreement did not expressly state what would happen to spousal support payments on payee spouse's death, Tax Court correctly looked to state law to determine whether payments were to terminate on death of payee spouse, and therefore "alimony" deemed income to recipient and deductible by payor under Internal Revenue Code. Given California Family Code Sec. 4337's provision that spousal support terminates on death of either spouse unless both expressly agree in writing to contrary, tax court did not err in holding that payments were alimony because payee failed to clearly and convincingly establish that payments would continue past her death.
     Johanson v. Commissioner of Internal Revenue - filed September 3, 2008
     Cite as 06-75623
     
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-Trusts and Estates-
Trust provision whereby each settlor reserved "the right and power to revoke this Trust, in whole or in part, from time to time during their joint lifetimes, by written direction delivered to the other Trustor and to the Trustee" was not implicitly exclusive for purpose of Probate Code Sec. 15401(a)(2), which permits revocation of a revocable trust by a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor, unless the trust specifies another method and makes it exclusive. Action by beneficiaries in their capacity as trustees, seeking an accounting from law firm in which settlor owned an interest, did not violate trust’s no-contest clause.
     Masry v. Masry - filed September 4, 2008, Second District, Div. Six
     Cite as 2008 SOS 5383

    
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-Trusts and Estates-
Widow has no right to use late husband’s frozen sperm to attempt to conceive a child where late husband signed an agreement with the company storing the frozen sperm providing that the frozen sperm was to be discarded upon his death; donor’s right to control the disposition of sperm takes precedence over donee’s right to procreate.
     Estate of Kievernagel - filed  September 11, 2008, Third District
     Cite as 2008 SOS 5494
     
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-Family Law-
Estate plan’s express agreement that separate property being transferred to trust was to become community property was sufficient to effect transmutation of property under Family Code Sec. 852, notwithstanding language in transmutation agreement and trust purporting to qualify, limit, or condition transfer upon either spouse’s death.
     In re Marriage of Holtemann - filed September 15, 2008, Second District, Div. Six
     Cite as 2008 SOS 5509
     
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-Trusts and Estates-
A temporary judge assigned to resolve dispute between testator’s family members did not have continuing jurisdiction to hear alleged substantive claims arising from sale of probate estate’s assets against third parties who were not beneficiaries of probate matter 10 years after the probate estate closed. Because stipulation for appointment of a temporary judge need not be express or in writing, where plaintiffs participated in numerous hearings before temporary judge without objection and while represented by separate counsel, plaintiffs implicitly consented to appointment. Where temporary judge’s authority did not extend to adjudication of later dispute, temporary judge also lacked authority to rule on attorney disqualification motion. Temporary judge’s determination regarding scope of authority was a final order and thus appealable.
     Gridley v. Gridley - filed September 23, 2008, First District, Div. Two
     Cite as 2008 SOS 5508
     
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Los Angeles County Bar Association
2008-09 Trusts and Estates Section Newsletter
TRUSTS & ESTATES SECTION REVIEW
Amy L. McEvoy, Co-Editor,  David C. Nelson, Co-Editor,    Nelson J. Handy, Co-Editor

SECTION OFFICERS
Chair
Laura G. Conti

Vice-Chair
Jonathan L. Rosenbloom

Treasurer
Nelson J. Handy

Secretary
Nelson J. Handy

Immediate Past-Chair
David C. Nelson


Section Administrator
Elise Green

EXECUTIVE COMMITTEE MEMBERS

Michael A. Abraham
Susan J. Cooley
Tala R. Davis
Linda N. Deitch
Sibyelle Grebe
Samuel D. Ingham III
Susan Jabkowski

Lawrence J. Kalfayan
Thomas H. Kenney
Jamie Lee Kim
Jane E. Kwon
Matthew W. Mc Murtrey
Amy L. McEvoy
Jacqueline Real-Salas
Leigh Shipp
Kira S. Vincze
Stuart D. Zimring


SUB-SECTION MEMBERS
Barristers Liaison, Laura Narimatsu Wasserman
Liaison Beverly Hills Bar Association, Trudi Sabel Schindler
Ex Officio, James R. Birnberg
Ex Officio, John M. Byrne
Ex Officio, Leslie A. Parrish
Ex Officio, Nancy B. Reimann

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.