Tag Archives: California lawyers
When Can Courts Exercise Authority Over “Internal Affairs” of a Trust?
PROBATE COURTS HAVE EXCLUSIVE JURISDICTION OVER THE INTERNAL AFFAIRS OF CALIFORNIA INTER VIVOS TRUSTS When an issue, dispute, or matter relates to the “internal affairs” of a California inter vivos trust, the California Probate Courts have exclusive jurisdiction over the proceedings. “Exclusive jurisdiction” means that only the probate court has the right to resolve… Read More »
Who is Entitled to Receive Official Notices From a Trust?
WHEN MUST NOTICES BE SERVED ON THE DECEASED SETTLOR’S HEIRS? Official statutory notifications must be served (in most cases, by mail or registered mail) on the heirs of the deceased settlor of a trust when the settlor’s living trust becomes irrevocable (a) the death of a settlor of the trust or (b) the trust… Read More »
Do Assets in a Trust Have to Go Through Probate?
DO TRUST ASSETS HAVE TO GO THROUGH PROBATE? Sometimes. The answer depends on a number of factors, including (but not limited to); the type of trust the type of assets whether the assets were properly placed in or transferred to the trust and several other, less common, legal issues PROPERTY HELD IN AN INTER… Read More »
What is a Trust, and How Are Trusts Created in California?
WHAT IS A TRUST? In California (as in other U.S. states), the law establishes various ways in which the property of a deceased person (a “decedent”) passes to his or her heirs. When the decedent leaves only a will, or dies without any valid estate planning documents, the decedent’s property (called the “estate”) usually… Read More »
When Must a Lawyer Check for Conflicts of Interest?
LAWYERS MUST RUN A CONFLICT CHECK BEFORE AGREEING TO REPRESENT A CLIENT Where a conflict of interest exists, a lawyer must: Obtain proper consents and clearances, if the conflict can be waived Refuse to represent the potential client, if the conflict cannot be waived or addressed in a way that permits representation Since this… Read More »
When is “Zealous Advocacy” Legal Malpractice?
LAWYERS HAVE A DUTY TO REPRESENT CLIENTS ‘ZEALOUSLY” AND COMPETENTLY Lawyers have a legal duty to represent their clients “zealously” and competently. Merriam-Webster’s dictionary defines “Zealous” as “marked by fervent partisanship for a person, a cause, or an ideal.” The Cambridge online dictionary says it means “enthusiastic and eager.” Changed to a noun, the… Read More »
When Is a Lawyer Required to Refuse a Case?
DO LAWYERS HAVE TO ACCEPT EVERY CASE? No. In fact, in some situations, lawyers cannot accept a case or agree to represent a certain client. LAWYERS HAVE A DUTY TO REFUSE CERTAIN CASES AND CLIENTS Various laws and ethics rules govern the cases (and clients) a lawyer can–and cannot–accept. Generally, lawyers have a duty not to… Read More »
When Has a Lawyer Breached His or Her Legal Duty of Care?
HOW DOES BREACH OF DUTY RELATE TO LEGAL MALPRACTICE? Legal malpractice (also called professional negligence) involves a lawyer’s breach (violation) of a legally mandated duty of care. Specifically, a breach of the professional standard of care that is applicable to the relevant situation. When evaluating a lawyer’s potential breach of duty, the issue is whether the… Read More »
Who Can Sue a Lawyer for Malpractice?
GENERALLY, ONLY CLIENTS CAN SUE A LAWYER FOR MALPRACTICE In California, the general rule is that privity of contract (i.e., a contractual relationship) is a required element of standing to bring a malpractice claim. Put another way, only clients (generally, former clients) can usually bring malpractice claims against lawyers in California. The necessary privity of… Read More »
What is Legal Malpractice?
WHAT IS “LEGAL MALPRACTICE”? The term “legal malpractice” refers to the professional negligence of an attorney within an attorney-client relationship. Less formally, “legal malpractice” occurs when an attorney acts negligently in the course of representing a client. It is a form of negligence, which is a tort (a “civil wrong”). Strictly speaking, legal malpractice is… Read More »
