“The Jolly Testator Who Makes his Own Will”

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

“The Jolly Testator Who Makes his Own Will”

NOTE: Darciann Horton, our Long Beach Probate Attorney,  has changed her office hours in Long Beach. They will now be Wednesday from 10-12 and Thursday from 1-3.

The following was on the Los Angeles County Trust & Estates Listserve and I thought everyone might enjoy it.  This was shared by Norman H. Green who states that it is attributed to Scottish Jurist and Theologian Charles Lord Neaves (1800-1876).

Ye lawyers who live upon litigants’ fees,

And who need a good many to live at your ease,

Grave or gay, wise or witty, whate’er your degree,

Plain stuff or Queen’s Counsel, take counsel of me.

When a festive occasion your spirit unbends,

You should never forget the profession’s best friends;

So we’ll send round the wine and bright bumper fill,

To the jolly testator who makes his own will.

He premises his wish and his purpose to save

All dispute among friends when he’s laid in the grave;

Then he straightaway proceeds more disputes to create

Than a long summer’s day would give time to relate.

He writes and erases, he blunders and blots,

He produces such puzzles and Gordian knots,

That a lawyer, intending to frame the thing ill,

Couldn’t match the testator who makes his own will.

   
                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and  Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2009.12.18  To the Jolly Testator Who Makes His Own Will.docx

Heggstad and the Unfunded Trust Postmortem Planning to Avoid Probate

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Heggstad and the Unfunded Trust

Postmortem Planning to Avoid Probate

NOTE: Darciann Horton, our Long Beach Probate Attorney,  has changed her office hours in Long Beach. They will now be Wednesday from 10-12 and Thursday from 1-3.

At the September 2009 meeting of the Orange County Trusts and Estate Section, speaker Jeremy B. Crickard, Esq. presented some thoughts on “Heggstad and the Unfunded Trust–Postmortem Planning to Avoid Probate.”  Mr. Crickard is the author of an article in the Fall 2008 California Trusts and Estates Quarterly Vol 14, Issue 3, entitled, “A Practitioner’s Guide to Heggstad Petitions.”  I had previously read the article and I have written several articles on Heggstad itself, the cite for which is Estate of Heggstad (1993) 16 Cal.App.4th 943.

There has been widespread use of this case by practitioners to fund or re-fund living trusts after the Settlor’s death and a difference of opinion by courts (important) and practitioners (less-so) as to its application.  In some courts the bottom-line is that Settlor’s Will leaves assets to the Trust so the outcome will be the same; absent a Probate and resultant Probate fees.  Some courts accept that ultimate argument/plea and others reject it as irrelevant.

A.    The speaker first presented a summary of methods for avoiding Probate.

§13100 Affidavit for transferring personal property within current fair marketvalue of $100,000 or less. §13050 excludes some property, as does §13500 (spousal property) and §13600 (up to $5,000 in salary or compensation. §13006 sets forth who can used §13100 (Beneficiary of Will, Decedent’s Intestate Heirs and Sister-State Personal Representative).

B.    Next was an Order Determining Title to Decedent’s Property under §13150 et. seq.

§13150 is for use with real or personal property with a current value of $100,000 or less.      §13006 sets forth that the Successor of Decedent can use this provision.  It requires an Inventory and Appraisal.  A court order is the result.

C.    An Affidavit Procedure for Real Property with a gross value of $20,000 or less is provided for in §13200.  Six months must have passed since Decedent’s date of death. The resultant court order is the equivalent of an Order for Distribution.

D.    §13500 et seq provides for the passage of property to the Surviving Spouse with formal administration.  This method can be used by the Surviving Spouse or Domestic Partner regarding property left to that person by Will or intestate succession.  A 40 day survival period is required.  The court order is conclusive, but the recipient is liable for decedent’s debts.

E.    §13600 allows the surviving spouse or domestic partner to collect up to $5,000 in wages or benefits.

F.    The speaker advised NOT to use Summary Proceedings when there are:

    (1)    Debt/liability issues (no statutory claim period);

    (2)    Disputes over person(s) entitled to inherit (no means to resolve multiple claims).

G.    Heggstad Petitions

There is no direct statutory support for these.  It is primarily caselaw.  California has supervised probate; some states do not–or have limits.  California has had a rise in revocable trusts not seen in many states.  Heggstad has been defined, incorrectly, as “I’d really like to avoid probate.”

Heggstad had a Trust and a Pourover Will. Schedule A of the Trust listed a partnership in a piece of property.  Actually, he owned a 38% interest as a tenant-in-common.  Months later, he re-married.  He did not amend his Will or Trust post-marriage.  He died and his son was appointed Successor Trustee and Executor.  Son filed a Petition for Instructions (Probate Code §17200).  Wife objected, claiming that it was not a proper action; and she filed as a pretermitted heir.  The Trial Court sided with the son, finding that the Declaration of Trust that Mr. Heggstad had set-up held the property as Trusteee and that was sufficient.

If you (Settlor/Trustor) are the Trustee, §15200(a) a declaration that the asset is Trust property.  If another person is Trustee, §15200(b) requires a “Transfer”, so the Court found a deed was not required.  §15206 (The Statute of Frauds) requires a writing.  So a written declaration describing the asset sufficiently on Schedule “A” is required.

Successful filing of Heggstad:

1.    Trustor/Trustee declaration of Trust with property set forth;

2.    Co-Trustee.  Will a Declaration of Trust work or is a transfer needed?  In the unpublished case Estate of Santo 2008 there was a refi-deed out of trust with no transfer back into the Trust.  Wife then died and one son became co-Trustee with dad.  The Trustee filed a Petition to have the property declared to be part of the trust, but the other son contests the action.  The Court found that Heggstad was inapplicable; the property was taken out of the Trust and there was no proof of an intent to put it back.  To put it into the trust with a co-Trustee involved you must make a transfer.

3.    Independent Trustee.  Heggstad is not applicable, although some courts are granting them.

4.    Personal Property.  There is no concern with Statute of Frauds.  You could have an oral trust (something more than an oral declaration of Settlor).   

5.    Property Description.  Need not be perfect.  Heggstad had the correct address, not interest (partnership vs. tenants in common).  Evid Cod §662-overcome deficiency. “All my assets” is not sufficient.   

6.    Use care using a General Assignment as it might sweep assets into the Trust which were not intended and/or cause tax consequences such as with retirement accounts.

7.    Pay on Death Accounts versus later trust amendment listing those accounts-may bring them into the trust.
   
8.    Gerrity vs. Lyons was unpublished two weeks ago.  Husband had inherited from his parents and made a General Assignment to a Trust, but no deed to the trust was done.  The Court said that the General Assignment is not sufficient; you need “general certainty” such as an address/map.

9.    Probate Code §850 Petition based on Heaps might work to get property back into Trust. 

        Heaps v. Heaps (2004) 124 Cal.App.4th 286
        Nominee Clause.  In trust paragraph, title can be held in various vestings and still be in Trust.
   
                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and  Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2009.12.18 Heggstad and the Unfunded Trust.docx

“No-Contest Clause Enforced in Fight Over Time-Barred Debts”

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

“No-Contest Clause Enforced in Fight Over Time-Barred Debts”

NOTE: Darciann Horton, our Long Beach Probate Attorney, has changed her office hours in Long Beach. They will now be Wednesday from 10-12 and Thursday from 1-3.

Donald D. Cook, Jr., as Trustee, etc . . .vs. Daniel W. Cook, Defendant and Appellant (2009 Second District No. B205793) involved the integrated estate plan of parents Donald and Nancy Cook.  Donald and Nancy executed their estate plan in 1997.  They had four children and distribution was to be equally between the four, taking into account any outstanding debts owed to the Settlors.  The Trust contained a no contest clause against direct or indirect contests, opposing, objecting or seeking to invalidate . . ., or seeking to succeed to any part of estate other than in the manner specified.

At the same time as they executed the estate plan the Settlors executed a writing, prepared by Donald, Jr., who would become their successor Trustee, at the request of Settlors, that they desired that their children be treated equally.  That they “would like for there to be no misunderstanding regarding certain debts owed by children who are beneficiaries.  We would like any and all debts to be offset against any and all assets which is bequeathed, prior to distribution of the assets to the beneficiaries.  The writing referred specifically to funds “lent to help Daniel during a difficult time with his business.”  The amounts lent were set forth.  The court went through a discussion of no-contest clauses; public-policy; and strict construction to avoid forfeiture.  Citing Miller’s Estate (1963) 212 Cal.App.2d 284 and Burch v. George (1994) 7 Cal.4th 246 among others.

After the death of the Settlors, Donald Jr., as Trustee, filed a §17200(b)(6) Petition requesting instructions from the court regarding the application of the provision to various debts including over $900,000 from son Daniel.

Daniel responded, in propria persona, that the debts were satisfied; barred by the Statute of Limitations; were oral; and were not pursued in his bankruptcy.  Two other children “responded that Daniel’s assertions and his request for ruling violated the Trust’s no contest provision.”

After hearing, the trial court ruled that Daniel’s pleadings were a direct attack on the intended distribution in the document and violated the no-contest clause causing his disinheritance.  On appeal, Daniel contends that his pleadings were protected by P.C. §21305(b)(9) and “merely advocated a Trust interpretation.”  Further, that his pleadings were sheltered by P.C. §21305(b)(6) and (8) as a challenge to “the exercise of fiduciary power and to accountings of a fiduciary.”  Daniel alleged that time barred debts are not debts owed, citing Estate of Schaeffer (1921) 53 Cal.App. 493.

The Appellate Court found that Daniel’s pleadings sought “to frustrate his parents’ unequivocal expressed intent.” Estate of Strader (2003) 107 Cal.App.4th 996.  The Settlors did not qualify the debts by stating that the Trustee must offset only enforceable debts (Estate of Tompkins (1901) 132 Cal 173.)  “The term ‘owing’ does not necessarily imply an enforceable obligation.”  In fact, when Settlors executed the writing, many of the debts were barred by the Statute of Limitations.

Daniel “went beyond seeking an interpretation . . . or challenging the exercise of the Trustee’s power or his accounting.”  What Daniel sought was a determination that his debts were time-barred and should not be deductions from his share.

Daniel was not protected by P.C. §21307 since he did not allege facts supporting probably cause that a no-contest clause is unenforceable against a beneficiary contesting a provision benefitting a person who drafted it.

Estate of Schaeffer, supra, did not apply to support Daniel as it did not involve a “Settlor or testator’s expressed intent to offset debts . . . to treat each beneficiary equally.”

Though P.C. §21320's safe harbor provision remains in effect through 2009, Daniel did not avail himself of its protections in this proceeding.

A reminder that a challenge that affects settlor’s express intentions as to distribution is very risky.  Obviously Daniel’s share was not completely offset by the 900,000 time-barred (and apparently bankrupted) debt.  Had it not been so, he had little to risk except the expense of litigation (guess $50,000 to $100,000?).  But he lost it all.


                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2009.12.18  No Contest Clause Time Barred Debts.docx

Seniors and Substance Abuse AND Why You Should File Your Estate and Trust Matters in Long Beach

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Seniors and Substance Abuse

AND

Why You Should File Your Estate and Trust Matters in Long Beach

NOTE: Darciann Horton, our Long Beach Probate Attorney, has changed her office hours in Long Beach. They will now be Wednesday from 10-12 and Thursday from 1-3.

The Elder law Section of the Orange County Bar met on September 11th with Dr. Max A. Schneider the speaker.  Dr. Schneider has been around for a while.  I was fully prepared to be bored-to-death getting 1 hour of MCLE in a required topic.  I begrudge the Mafia . . .also known as the Bar, for requiring these topics.  I don’t smoke, and I don’t drink.  My vice is weight lifting and teaching karate.  But, I found Dr. Schneider to be a very intelligent and interesting fellow who made the hour well worth it.

But, before I comment further on Dr. Schneider and my efforts to get him to drive to Long Beach from Orange, I want to comment on the low number of Probate, Trust, Conservatorship and Guardianship filings in Long Beach.  Okay, Judge Paul rode into town, took the Bench and laid down his methodology.  Some of you got scared at the new Sheriff-in-Town; and like a deer in the headlights, your eyes went BIG and you leap to Central; or find some “excuse” to legitimately file elsewhere (yeah, right!)  YOU WERE PREMATURE!  Its okay to file in Long Beach.

Sure, the courthouse is ready to fall down and there is asbestos.  It’s our effort to save the State(the taxpayers) the cost of demolition.  It has been a longtime coming.  We saved annually on upkeep and maintenance by doing none.  We let the wind and occasional rain clean-off the walks.

But listen, like the vast majority of Probate judicial officers to sit in Long Beach over the past 40 years, Judge Paul is really decent to appear in front of.  He will hear you on your case.  He is clear about his expectations.  He is working on moving the calendar more expeditiously; AND where else do you get Darci Horton as our Probate Attorney? 

The only negative I hear regarding Darci is accessibility.  But, it goes with the territory.  She takes e-mails.  She works with you to clear notes.  She is extremely pleasant to work with.  If you don’t get Darci, you work with LaKendra McGlothin and she is also great to work with and pleasant to speak with.  I have found that if, as soon as you get your Probate Notes (3 to 4 weeks in advance) you work to clear them, they will be cleared prior to hearing.  When you file supplements with upcoming hearing dates they get to the Probate Attorney.  If your notes are not cleared and do not reflect that you filed a Supplement, e-mail her with the case name, number, hearing date and calendar number and attache the file-stamped supplement and documents to clear notes by scanning them.

SO, COME BACK TO FILING HERE!!!

Back to Seniors and Substance Abuse.  My credit to Charles Strickland, Esq., Secretary of the Orange County Bar Association, Elder Law Section, for the following:

Anything and everything we eat, drink, breathe, etc. affects our brain.  The use of alcohol or drugs, even if only done once, affects our brain.  To what degree and for how long was expressed allegorically by the presenter.  If one hits ones thumb with a hammer, even once, it definitely affects the thumb.  To what degree and for how long depends upon the age of the person whose thumb was hit.  Additionally, if the thumb is hit more than once then the immediate effect and lasting effect is greater and if hit repeatedly irreparable damage can be done.  The actual damage is greater in the older person and the lasting effect is greater in the older person.

So, the older you are the greater the initial impact, the greater the damage and the longer lasting the impact.  The recovery is delayed considerably the older you are.

The effect of alcohol and drugs on the senior can be seen by reason of the effect it has on: ability, nutrition, diabetes, endurance, bladder problems, kidney disease, cancer, hypertension, digestive problems, respiratory disease, vision, anxiety and depression, to name only a few.  He discussed the effects of alcohol.  The old wound or scrape medication, tincture of iodine.  Tincture is an alcohol mix.  It first agitates the wound, then it puts the nerves to sleep.

Seniors have a decreased tolerance for drugs and alcohol, a decrease in the metabolism of the drug or alcohol, decreased excretion and quite often decreased body mass, physical activity and memory.  The senior begins hiding their drinking, begins sneaking drinks, too frequent refills, decreased tolerance to their medications, confusion, change in grooming habits, behavior or mood, frequent burns and falls and social withdrawal.  These are all items that should alert anyone concerned about the senior of the possibility of substance abuse.  Additionally, youths have been known to, when not in their own home, excuse themselves for a “potty break”, and after the door is closed they will rummage through the medicine cabinet and take what they want.  If there is an experience of missing items in a medicine cabinet this should be added to the list of danger signals.  When a senior goes to the doctor they should “brown bag it”, that is, take their medications with them to tell the doctor what all his prescription is going to be reacting with in the senior’s body.

The body pays for everything placed into it.  If you take uppers there will be a corresponding downer after the uppers wear off.  Additionally, there are withdrawal problems and the withdrawal from each drug gets longer and longer with use.  The withdrawal from downers are evidenced by aggravation and agitation quite often.

A drink is a drink.  One 12 oz. beer, one 5 oz wine and one 1.5 oz shot of whiskey normally contain the same amount of alcohol.

The effect of the blood alcohol level on the brain is different depending upon whether it is measured during the drinking process or measured after the drinking process has terminated.  Thus a .8 on the scale if drinking continues, may have less serious effects than a .8 on the downward side of the curve after alcohol use has terminated.  Concerning some of the addictive drugs, the ½ life of cocaine in the body is 1½ hours but the normal high is only 20-25 minutes.  The combination of alcohol and cocaine is not merely a combination of drugs.  There is an actual metabolism of the combination, and the Secretary believes it was said, by the liver, into a new drug called cocaethylene so the effect of the combination of drugs is not just 1 + 1 = 2, but 1 + 1 could = 3.

The use of mood altering drugs starts out as FUN, then fun and problems, then only problems.  Addiction follows it, affecting the brain by increased compulsion, impaired control and other consequences with chronic disease and a change in lifestyle following.  The younger the drug use starts, the more it is used and the longer it is used, the more difficult is the recovery.

The user is almost always in denial, very seldom will it be admitted by the patient to anyone in the family, their physician or their attorney.  Be on the alert for some immediate memory loss, some short-term memory loss and long-term memory loss and even blackouts.  The blackouts do not necessarily mean unconsciousness but that the individual is unable to recall substantial periods of time and when they “wake up” from these blackouts, they wonder how they got where they are or don’t know what they did during the blackout.  These blackouts can be for a very prolonged period of time where basically the long-term memory takes over for the motor actions while the short-term memory does not function at all.

Alcoholism and drug addiction are brain diseases and as seniors, you are more likely to have “brain disease” and drugs and alcohol only increase the probability and the severity.

The presenter says his approach is a little different, everyone is guilty until proven innocent.  If there are any symptoms of abuse, always assume guilty until proven innocent.

The time for recovery from each use increases with age and the recovery symptoms become more acute and possibly more varied.  In discussing it with the elder make it easier for them to tell the truth.  By way of a small example, only ask the senior if they’ve had 20 or 30 beers or drinks over whatever period you’re interested in and let them assure you it was only 5 or 10, etc.

There is absolutely no cure for alcoholism or drug addiction, one can only change one’s lifestyle.  By way of example, if you have diabetes, there is no cure, but it can normally be controlled by the change of lifestyle.  In that regard, court schools for DUI or drug diversion programs, it appears that for the non-violent drug offender, 11% of graduates only are re-arrested while 80% of non-completers are re-arrested.  Quitting is tough, staying quit is tougher!!  Additionally, there are other health issues involved, food, shelter and clothing for the individual, their transportation is affected and their socialization or re-socialization is changed.  It can result in domestic abuse, loss of job, misdiagnoses (a very severe effect), sex diminutions, sleep deprivation, and a severe change in their attitude.

Pain, uncontrolled, can be the cause of addiction so it should only be under the control of a doctor not self-medicated for pain.

Treatment programs are essential to stop, to recover and to not start again.  It is extremely difficult for an individual to do all 3 of these on their own.  Not to say it can’t be done, but it is difficult.  Assistance can be received through psychotherapy, behavior modification, group therapy, one-on-one, or faith based.

Seniors are quite prone to “share” their medication and this should be monitored by their loved ones.

Dying from substance abuse is hell!!

                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2009.12.04  Seniors and Substance Abuse and File in LB.docx

Partnerships Involving Living Trusts: Who Are the Partners?

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Partnerships Involving Living Trusts: Who Are the Partners?

NOTE: Darciann Horton, our Long Beach Probate Attorney,  has changed her office hours in Long Beach. They will now be Wednesday from 10-12 and Thursday from 1-3.

Presta v. Tepper (2009) G040427 deals with the issue of terms of a Buy-Sell Agreement which require the sale by deceased partner’s estate to the surviving partner upon the death of a partner.  One-half of the partnership is held in one partner’s trust and one-half was held in the other partner’s trust.  One of the men, Tepper, died.  His surviving spouse agreed to sell to Presta, her husband’s interest in a partnership held in his individual name but refused to sell the interest in other partnerships held in her husband’s trust.  Her position was that the Trust was the partner of the latter partnership and thus there was no death of a partner which would require a sale.

The trial court ruled in favor of plaintiff, Presta, finding a partner had died and a sale was required under the Buy-Sell Agreement.  The Appeals Court affirmed the decision of the trial court.  The opening paragraph of the Appeals Court decision said all that needed to be said:

Two men enter into a real estate investment partnership, each acting in his capacity of trustee of a family trust.  The question is: who are the “partners,” the men, or the trusts?  The answer is “the men.”  A trust of the type formed by both men in this case is simply a fiduciary relationship, governed by the Probate Code, by which one person or entity owns and controls property for the benefit of another.  Such a trust is not an entity separate from its trustee, and cannot independently do anything–it cannot sue or be sued; it cannot enter into agreements; and it cannot fulfill the fiduciary duties of a partner.  Consequently, we agree with the conclusion of the trial court in this case, that the provision of the partnership agreement which required that upon the death of a “partner,” the partnership shall purchase his interest in the partnership, was triggered by the death of one of the two men.  We affirm its judgment.

But, the Court went on and so shall I. The two men executed the partnership agreements as trustees of their respective trusts.  The Agreements state “The parties are sometimes hereinafter individually referred to as ‘Partner” and collectively referred to as ‘Partners.’” By referring to that provision, the court makes it appear that that was a key factor.  I do not believe it is, although that makes the decision easier to see.

The court found that, “as a matter of law” the two men were the partners and not the trusts.  A Trust like the men had creates a relationship, not an entity.  In contrast to a corporation which is a “distinct legal entity separate from its stockholders and from its officers” Merco Constr. Engineers Inc v. Municipal Court (1978) 21 Cal.3d 724, “an ordinary express trust is not an entity separate from it’s trustee . . .”  Powers v. Ashton (1975) Cal.App.3d 783.    “It is for this reason a trust itself can neither sue or be sued in it’s own name.  Instead the real party in interest in litigation involving a trust is always a trustee.”  Powers v. Ashton, supra.

The court suggests that different wording might have made the trusts the parties as opposed to the individuals.  But this was dicta and had no application in determining who a “Partner” was whose death would trigger the buy-out.

Tepper argues that Corp. Code §16101 allows a trust to be a partner.  The court says this has “surface appeal.”  She does not distinguish between types of trusts such as Trust Companies or Real Estate Investment Trusts.  Tepper argues that a Trustee, not an attorney, cannot represent the Trust’s interest in litigation because there are interests of others.  She argues that “others” distinguishes from the Trust and thus the trust is an entity.  But the court says “others” are the Trust beneficiaries.

Tepper argued that IRS recognizes the Trust as a separate entity in that they can be issued taxpayer identification numbers.  The court held that the fact “that the taxing authorities chose to create a separate category for assessing tax liabilities . . .” does not make them a separate entity.

The court gets into semantics indicating the agreements never refer to the partners as “it.”

As I indicated, the opening paragraph said it all.

                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2009.12.04 Partnerships in Trusts Presta v Tepper.docx