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No-Contest Clauses in Trusts

October 28, 2011/in Estate Planning /by Michael Lonich

Trusts are incredibly useful estate planning instruments (see Testamentary versus Inter Vivos Trusts blog).  They can be drafted and administered in almost any way you want; they can even protect your heirs’ inheritance from creditors (see Spendthrift Clauses blog).  Another useful way to ensure that your estate is administered in a particular way is to include a “no-contest” clause in your estate planning documents.

A no-contest clause is a “provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary for filing a pleading in any court.”  California Probate Code sections 21310-23315 govern these provisions and define a contest as a “pleading filed with the court by a beneficiary that would result in a penalty under a no-contest clause, if the no contest clause is enforced.”  The Probate Code also defines a “direct” contest, which, if brought with probable cause (as defined by statute) does not violate the no-contest clause.

Direct contests allege the invalidity of a protected instrument or one or more of its terms based on forgery; lack of due execution; lack of capacity; menace, duress, fraud, or undue influence; revocation of a will by statute; and/or disqualification of a beneficiary by statute.  However, it is important to note that a no-contest clause will only protect the instrument containing the no-contest clause and other instruments only if they were already in existence and expressly identified in the no-contest clause.  Accordingly, it is important to consult an experienced estate planning attorney to ensure your estate is protected from contests.

If you are interested in learning more about estate planning and protecting the administration of your estate, contact  the San Jose estate planning attorneys at Lonich Patton Ehrlich Policastri, LLP.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2011-10-28 10:02:522021-12-22 21:34:11No-Contest Clauses in Trusts

Do You Need a Revocable or Irrevocable Trust?

December 10, 2010/in Estate Planning /by Michael Lonich

If you are confused about the difference between a revocable and irrevocable trust, you are not alone.  In fact, they do have some similarities.  For example, both revocable and irrevocable trusts allow the settlor (person putting assets in the trust) to distribute or transfer their property as provided for in the trust document.

The main difference between the two trusts is related to the settlor’s control over the trust assets.  The settlor of an irrevocable trust generally gives up a large degree of control over the property that he or she transfers into the trust.  In addition, the settlor may often derive tax benefits from creating an irrevocable trust.

On the other hand, a revocable trust can be canceled (revoked) at any time.  However, the revocable trust often has less significant tax benefits.  You may wish to create a revocable trust, regardless of any decrease in tax benefits, if you desire to maintain a large degree of control over the trust property.  It is important to work with an experienced estate planning attorney to create an estate plan that fits your lifestyle and goals.

For more information about trusts, please contact us.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2010-12-10 11:03:082021-12-22 21:59:06Do You Need a Revocable or Irrevocable Trust?
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Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.

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