Probate

A petition to recover estate property under Probate Code 850(a)(1)(c) is not the proper vehicle for obtaining communications and documents from a temporary conservator of the plaintiff's estate; those documents are not the type of personal property interests that can properly be sought through and adjudicated in a section 850 petition. Read More

Probate Code 8402(a)(4) provides that to be eligible to serve as an executor or administrator of an estate, a person must be a resident of the US.  This decision interprets the statute as meaning that an executor or administrator must be "domiciled" in the US--that is, reside in the US with the intention of remaining there.  Here, the proposed administrator--the… Read More

Under Probate Code 16061.8 and 21311, as amended in 2010, a no contest clause may be enforced against a beneficiary of a will or trust if the beneficiary files a "direct contest without probable cause."  A direct contest is one that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more… Read More

This decision holds that (1) a probate court does not have inherent equitable power to award attorney fees except from a beneficiary's share of a trust or estate involved in the litigation, but (2) Probate Code 15642(d), the court may award attorney fees against a party payable from his personal assets for filing a bad faith petition to remove a… Read More

Under Probate Code 145, a spouse waives his or her interest in the other spouse's estate by entering into "a complete property settlement agreement after or in contemplation of a separation, dissolution or annulment of their marriage."  This decision holds that to operate as such a waiver, the settlement agreement need not recite that it waives that right nor that… Read More

World Services holds intellectual property rights in Narcotics Anonymous' publications as trustee under a trust created by a loose association of Narcotics Anonymous adherents, known as the Fellowship of Narcotics Anonymous.  The Autonomous Region sued World Services claiming it breached its fiduciary duties under the trust.  This opinion affirms dismissal of the action on the ground that Autonomous Region lacks… Read More

Appeals from probate orders did not automatically stay the parties' ability to settle their dispute.  Even though their settlement required dismissal of the pending appeals, the settlement was effective and did not violate the automatic stay on appeal under CCP 916. Read More

Under Prob. Code 1003, a court may, but is not required to, appoint a guardian ad litem for minors named as parties in the action. If the court doesn't appoint a guardian, it must itself protect the minor's interests.  Here, a guardian ad litem was appointed for the minors in related litigation, but not in this proceeding.  The guardian ad… Read More

If a trust provides a procedure or method for amending the trust, whether phrased as exclusive or optional, any amendment must conform to that procedure or method; otherwise it is invalid.  Prob. Code 15402’s “qualification ‘[u]nless the trust instrument provides otherwise’ indicates that if any modification method is specified in the trust, that method must be used to amend the… Read More

The California Department of Health Care Services administers the MediCal program. For purpose of computing a person's financial ability to pay for medical care during his lifetime, the department omits the worth of his residence.  However, after the person's death, the department is entitled to collect reimbursement for medical care it paid for during the person's lifetime from the person's… Read More

Plaintiff was the executrix as well as a beneficiary of her parents' estate. She claimed that a relative and co-beneficiary conspired with two other defendants to fraudulently induce her, as executrix, to take a large loan at usurious rates secured by the parents' house, the estate's principal asset, after which the co-beneficiary misappropriated most of the loan funds.  This decision… Read More

A fiduciary owes a duty to disclose material facts to the beneficiary.  The beneficiary is under no duty to investigate whether the fiduciary has told the truth or disclosed all the material facts.  Hence, when a conservatee moves to set aside an order approving the conservator's accounting on the ground of misrepresentations in the conservator's accounting and petition for approval,… Read More

An order settling the account of a fiduciary is appealable.  (Prob. Code 1300(b).)  Ordinarily, an order denying a motion to vacate an order settling the fiduciary's account is not appealable so as to avoid giving a party two appeals from the same order.  However, here, the conservator's misrepresentations in the accounting prevented the conservatee from fully litigating the accounting and… Read More

Wife executed will that purported to sever joint tenancy ownership of real property held in the name of wife and husband.  The will directed that wife's estate be distributed equally to her five children.  Husband never probated wife's will after her death, and his will and trust distributed his estate to three of wife's five children who were his biological… Read More

In the years leading up to his death, husband transferred real property from his separate ownership to joint tenancy with wife and also amended his will several times to her benefit.  Held, when Fam. Code 760 (all property held by a married person is presumed community property) conflicts with Evid. Code 662 (legal title owner is presumed to hold full… Read More

This decision holds that a suit filed by the decedent's heirs under CCP 377.32 was timely since it was filed within the limitations period even though the heirs didn't file the required declarations until after the limitations period expired and even though after probate proceedings were begun on the decedents' estates, the complaint was amended to name as an added… Read More

Although California and Indiana both generally enforce spendthrift trusts, the law of both states allow creditors to collect from the trust's assets when required by strong public policy--for example, to pay child support owed by the spendthrift beneficiary.  This decision holds that under the law of both states, the trust's assets are accessible to pay attorney fees that an opposing… Read More

Under Probate Code 6100.5(a)(2), a person lacks testamentary capacity if at the time of making a will or trust, he or she suffers from a mental health disorder with symptoms including delusions or hallucinations, and those delusions or hallucinations lead the person to make a disposition of property he or she otherwise would not have made.  Here, the court affirms… Read More

Probate Code 2640.1 allows a trial court to award attorney fees against the estate of the conservatee and in favor of the person who petitioned for appointment of a conservator if the court appoints a conservator different from the one the petitioner requested.  Here, however, the conservatorship petition was dismissed in a settlement before any conservator was appointed.  In that… Read More

Following n Hill v. Superior Court (2016) 244 Cal.App.4th 1281 and Kerley v. Weber (2018) 27 Cal.App.5th 1187, and disagreeing with Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025, this decision holds that double damages may be awarded under Probate Code 859 without a finding of bad faith if the defendant has taken or concealed property of a dependent adult, a… Read More