Probate, Trust and Estate Planning Tidbits: May 2011

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Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at www.trustlaw.ws or contact my office at 562.424.8619.

Tuesday, May 31, 2011

Shapiro v. USA: Cohabitant Rights

May 31, 2011

Shapiro v. USA: Cohabitant Rights

The Federal Court has, once again, gotten into the area of State Family Law and Estates when the U. S. Court of Appeals for the 9^th District ruled on the application of “Marvin-type” facts (Marvin v. Marvin, 557 P.2d 106) that facts on cohabitation could support a deduction on decedent’s estate tax return.

In Estate of Bernard Shapiro et al v. USA, No. 08-17491 DC No 2:06-cv-01149-RCJ-LRL, the couple had set-up housekeeping without the benefit of marriage approximately one year after they started dating. Twenty years later, girlfriend discovered boyfriend had another woman friend and sued him in Nevada State Court for all the Marvin causes of action. While the matter was pending in State Court, boyfriend died. Ultimately, the estate settled with girlfriend.

In filing the estate tax return for boyfriend, estate took a deduction excess of the ultimate settlement, for the amount the claim exposed them to. IRS rejected the deduction. The Tax Court agreed with IRS that, looking at Nevada State Law (which is similar to California’s), girlfriend’s contributions of “22 years of cooking, cleaning, and other homemaking services did not constitute sufficient consideration to allow the estate to deduct her claim against it.”

The Federal Court of Appeals reversed the decision, finding widespread “acceptance of non-marital cohabitation” and an “expansion of co-habitant’s legal rights.” Implied contracts “manifested by conduct” are enforceable.

The “type of consideration necessary to support a contractual agreement between co-habitants” is not the only element to look at. The parties conduct determines “whether their actions support the conclusion that they intend to share their property as though married.”

Although the Nevada Supreme Court has not addressed the sufficiency of homemaking services as adequate consideration for a contract, California has found it to be sufficient [Chiba v. Greenwall (2007) 67 Cal.Rptr.3d 86]. So, the palimony claim was valid under Nevada law. The value of the claim is subject to factual determination.

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John T. Anderson, Section Chair

Certified Specialist in Probate, Trust and Estate Planning

By the California State Bar Board of Legal Specialization

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\2011.05.31 Shapiro v. USA cohabitant rights.docx

Wednesday, May 18, 2011

Estate of Stoker: “The Urinary Revocation”

May 18, 2011

Estate of Stoker: “The Urinary Revocation”

Be sure to calendar our upcoming Long Beach Estate Planning, Trust, and Probate Law Section Brown Bag Lunch, set for Thursday, June 2, 2011 at noon in Department G of the Long Beach Superior Court. Our Speaker, Attorney Michael T. Lebeau, will be discussing Propositions 13 and 58.

Concerning the Estate of Steven Wayne Stoker, two primary issues discussed: the effective the urinary revocation of a trust (no joke), and the courts admitting of a formal will to probate that did not meet the requirements of formal will execution. The decedent executed a will and trust in 1997. In 2005 decedent asked her friend to get a piece of paper out and write down what he told her to write. The decedent dictated the will and the friend wrote it down verbatim. Decedent then signed the new document. He then got the 1997 trust out, urinated on it in front of them, and burned it up.

The issue then was whether or not the 120 day notice sent out to restrict the timing of any challenges to the trust was successful in doing so and secondly whether or not the failure of any witness to execute the dictated will of the decedent caused it to be invalid.

The court said that the 120 day restriction on challenging the trust was not in place because the trust was revoked prior to becoming irrevocable. The 1997 Trust was revoked (no, not because Decedent urinated on it) because Decedent specifically revoked it by reference in the 2005 document.

With regard to the 2005 formal will lacking witnesses the trial court ruled that the 2005 will evidences "decedent Stokers intent." Probate code section 6110 subdivision two provides "that if the will was not executed in compliance with paragraph 1 it shall be treated as if it was executed in compliance with that paragraph if the proponent of the Will establishes by clear and convincing evidence that at the time that testator signed the will testator intended it to constitute the testators will." Since the trial court made the finding that the 2005 document constituted decedents will. The statutory language is clear and broad.

So, the 1997 Trust is revoked by the 2005 Will prior to becoming irrevocable. The 120 day notice for any challenge to the trust was thus ineffective. The filing of the 2005 document for probate and service on the proponents of the trust was an effective challenge to the trust; and, though having someone else write-out one's wishes makes the document a formal will requiring two witnesses and not a holographic will, the code allows proponents of the will to overcome the deficiency by the very stiff standard of clear and convincing evidence that the will set forth the intentions of decedent.