Probate

A probate judge has authority to enter orders or take other action necessary or proper to dispose of matters before it.  (Prob. Code 12706.)  Those incidental powers include the power to order parties to the proceeding to a mandatory mediation session.  Here, the probate court did just that.  Persons who claimed an interest in the trust but who did not… Read More

"Jurisdiction" is a term with many meanings.  As used in Probate Code 17000, jurisdiction does not refer to fundamental jurisdiction of the subject matter, nor to in personal, in rem, or quasi-in-rem jurisdiction.  Instead, that section simply provides that probate matters are to be heard in the superior court's probate division rather than its normal civil courts.  The section does… Read More

Prob. Code 21620 and 21622 deal differently with pretermitted heirs born after and those born before the testator's death.  Section 21620 establishes a presumption that the heirs born after the testator's death were omitted unintentionally and thus are entitled to inherit, unless an opposing party proves otherwise.  Under 21622, however, the burden is on the heirs born before the testator's… Read More

Prob. Code 15401 sets out a statutory procedure for revocation of a revocable trust under which the trustor need only sign a revocation and deliver it to the trustee.  The trustor may avail himself of this statutory procedure unless the revocable trust expressly states that a different method of revocation set out in the trust instrument is the exclusive means… Read More

Probate Code 859 provides for an award of double damages if the court finds that the defendant son has in bad faith wrongfully taken . . . property belonging to a . . . dependent adult, . . .  or has taken . . . the property by the use of undue influence in bad faith or through the commission… Read More

A testator’s gift of "all my estate" to two individuals made them both residuary recipients; when one predeceased the testator and was an aunt by marriage (hence not “kindred”), her share of the residue was distributed to the other residuary beneficiary, not the predeceased aunt's heirs. Read More

As the Probate Code allows a plaintiff to sue the estate of a decedent to prove that the decedent was liable for an obligation covered by his insurance, the insurance company is considered a “party” to the litigation for purposes of 998 settlement offers and therefore can be liable for cost recovery if the insurer does not accept the plaintiff's… Read More

Extrinsic evidence of trustor’s intent is admissible to shed light on the applicability of the “impossibility limitation” on conditions precedent to dispositions by will or trust. Read More

A child whom the decedent raised and held out as his own child (but without ever formally adopting the child) has standing to sue for the decedent's wrongful death. Read More

The probate court did not abuse its discretion in excusing a trustee from liability for breaching a trust, because he acted reasonably and equitably in allowing the trustor’s elderly friend to retain his life estate in the trust property even though he had fallen behind on certain expenses that were supposed to be a condition of the life estate. Read More

In a criminal prosecution for theft from an elder, defendant stipulated to a restitution amount of $700,000, so she was estopped from denying that damage amount in a later action for double damages under the Probate Code. Read More

In a criminal prosecution for theft from an elder, defendant stipulated to a restitution amount of $700,000, so she was estopped from denying that damage amount in a later action for double damages under the Probate Code. Read More

Although California recognizes the legitimacy of Japanese yoshi-engumi (a traditional adoption process), California law governs intestate succession for a person who died in California; so the adoption is treated as severing the adoptee's ties to his natural family and his natural parents' descendants are not entitled to inherit through him. Read More

Only a current beneficiary or trustee may petition to set aside amendments to a trust on the ground of lack of mental capacity and undue influence based on Probate Code 17200. Read More

Decedent’s will stating "I exercise any Power of Appointment which I may have over that portion of the trust or trusts established by my parents for my benefit ...."  was a sufficient indicator that the decedent knowingly and intentionally exercised the power given him by his parents’ trust; the will do not have to identify the exact title of the… Read More

In this contested hearing on trustee’s accounting, the trust did not confer absolute discretion on the trustee, so his exercise of discretion was to be judged by a "reasonableness" standard, pursuant to which the trial court properly surcharged the trustee for using trust funds to pay for the beneficiary's ordinary living expenses, when the trust said the corpus was to… Read More

The trial court did not abuse its discretion in assessing against a trust beneficiary's share and against the beneficiary personally the attorney fees incurred by the trustee in defending against the beneficiary's unreasonable and bad faith objections to the trustee's third accounting. Read More

A will’s bequest of 35% of residue including a specific ranch is a residuary, not a specific, bequest and so the distribution to the donee of the bequest is measured by the ranch’s post-death sale price. Read More

Probate court lacks jurisdiction to determine who is entitled to the proceeds of decedent’s life insurance policy since the proceeds are not a property of the decedent’s estate. Read More

An order removing an executor is not a final and appealable order if the trial court, in issuing the order, states that a written statement of decision providing the findings and reasoning supporting the order will be issued later. Read More