Archive for September, 2009

I have repeatedly stated to my clients that one of the functions of estate planning is the avoidance of probate related matters.  Not all probate actions are bad or ill advised, and in the absence of complete planning, might be the best option available.  Certain matters handled by probate courts, such as admitting wills to probate and appointing executors, are routine and not contested. Routine probate matters can be handled very efficiently.

Here is a list of some of the factors (in no particular order) involved in probate litigation, grouped by categories:

“Contested matters” handled by probate courts (aka “probate court litigation”) is a broad term that includes a variety of situations, including, but not limited to,

• will contests (a challenge to the validity of a will);

• will and trust construction suits (a request that the court make a determination regarding the legal meaning or effect of particular wording used in a will or trust);

• guardianship contests (a fight over (1) whether a guardian should be appointed for a particular individual who allegedly has lost his mental capacity (and did not do any advance planning, such as executing powers of attorney), and (2) if so, who should be appointed as the guardian to make medical decisions and handle financial matters for that mentally incapacitated person);

• trust modification and trust reformation suits (a proceeding that requests the court to change (or “fix”) the terms of a trust because something is wrong with the way the trust is worded);

• trust termination suits (a legal action brought to terminate a trust because the purpose of the trust has been fulfilled or can no longer be fulfilled); and

• breach of fiduciary duty actions (suits by beneficiaries against an executor, trustee, guardian, or agent alleging that the fiduciary failed to act in accordance with the law and/ or the instrument appointing her and thereby caused damage to the beneficiaries).

There are several high risk factors for probate litigation such as sibling rivalry and multiple marriage situations, the so-called “second marriage” situation. Many people marry for a second (or even third or fourth) time without signing a premarital agreement (“Pre-Nup”) before the wedding. The Pre-Nup is one of the best ways to avoid probate litigation on death. It can also avoid a very expensive “forensic accounting” on the death of the first spouse. Many people mistakenly believe they own certain assets as their separate property (perhaps simply because the asset was in existence before the marriage and/ or is titled solely in their name) when, in fact, their property may have become community or marital property, in whole or in part, during the marriage. The classic probate court litigation case: children of the first marriage versus the spouse of the second marriage.

Some Factors That Could Lead to Probate Litigation

Creating a “Nonstandard” Estate Plan

Some examples included estate plans that (1) “cut out” a child, (2) treat children differently, (3) create overly detailed trusts attempting to “control from the grave,” and (4) make gifts to mistresses.

The Second Marriage Situation

As previously noted, if the Pre-Nup or Post-Nup does not clearly define the ownership of assets by couples who were married previously, the potential for litigation on the death of a spouse is much greater (especially if there are children from the prior marriage). If assets are not cleanly divided between the surviving spouse and the children from the prior marriage, problems can arise.

Not Appointing the Right Fiduciary

Serving as the executor of an estate, the trustee of a trust, or an agent under a financial power of attorney requires a huge commitment of time and effort and absolute honesty. When making your choice consider all factors, including: 1) their communication skills, 2) ability to follow legal instructions from adviser, 2) timeliness in getting work done, 3) trustworthiness, 4) financial skill set, 5) susceptibility to bad influence, 6) general attitude, 7) level of common sense, and 8) ability to be organized.

Ill-conceived or “Faulty” Planning

There are so many examples of “bad estate planning” that it is impossible to list all of them here. Some are the result of incompetence and/ or lack of experience on the part of the attorney who prepared the plan. Others are the result of individuals trying to do things themselves that are not well thought-out. Some examples include (1) a person writing his or her own will or codicil (unless the instrument is a handwritten codicil that disposes only of personal effects); (2) having a customized estate plan not drafted by an attorney with sufficient expertise to draft non standard provisions, or 3) appointing one child as the trustee over another child’s trust.

Other Difficult Situations

Other situations that are always more difficult to plan for and that increase the need for solid planning to avoid probate litigation (and other problems) include (1) heterosexuals living together who have not executed a “non-marital cohabitation agreement” to avoid a “common law spouse” lawsuit on death; (2) gay and lesbian couples who do not do “special additional planning  to place their partners in a secure position of control (to override state law priority statutes) and to arrange for the unassailable transfer of assets to their partners on death (tax planning also can be harder because the estate tax marital deduction is not available to gay and lesbian couples); (3) making unreported “taxable gifts during life (a taxable gift is a gift that is more than $13,000 per person per year (the current annual exclusion amount)); (4) making gifts during life to just one child and not to all children in equal amounts; (5) failing to tell the estate planning attorney about an illegitimate child or child from a prior marriage; and (6) failing to organize the client’s financial and other important information to enable the executor of the estate to do a good job.

Failure to Follow Up

This category includes the client (1) failing to review the estate plan on a periodic basis (estate plans become outdated very quickly); (2) failing to do the necessary “homework incident to the estate plan (such as re-titling accounts and completing beneficiary designation forms as instructed so that non-probate assets are coordinated with the client’s estate plan in his will or trust); (3) failing to change the will, account titles, and beneficiary designations after marriage or divorce; and (4) failing to re-title all the assets in the name of the living trust before death if the intention is to avoid probate completely.

How to Avoid Probate Litigation

Do not do anything that could cause serious legal consequences without first discussing them with legal or other advisors. Check with your advisors regularly to ensure you are on the correct path and be prepared to discuss every issue and concern. Follow through on necessary “homework” such as account titling and beneficiary designation matters (see above). Plan ahead whenever possible.  Make sure you make the correct choice of fiduciaries.

In discussions with family members, you should explain the reasons for the plan being implemented, although you will need to be careful how you state your reasons.

Not all probate litigation can be prevented, of course, but a large portion of probate litigation can be prevented by good planning.

For a complimentary consultation of your particular legal needs and how to avoid probate in your estate, please contact the Law Offices of Daniela Lungu at (925) 558-2710 or email

Do you want a specific topic discussed in this blog? If so, please contact us at with your suggestions.

About Daniela Lungu, Attorney at Law

Daniela Lungu, founder of the Law Offices of Daniela Lungu, devotes her law practice to asset protection through estate and business planning. Ms. Lungu’s goal is to provide the people of the Bay Area and California with the highest quality, and most personalized legal services possible. Her attention to detail and a high level of communication with her clientele distinguish her from other attorneys in the field.

Designed by Duetco Designs

"The materials appearing on this site are provided for informational use only, and are in no way intended to constitute legal advice
or the opinions of this law firm or any of its attorneys. Transmission or receipt of any information from this site does not create
an attorney-client relationship, and you should not act or rely upon any information appearing on this site without seeking the
advice of an attorney."