The California Supreme Court concludes in Donkin v. Donkin that safe harbor proceedings filed before 2010 are not affected by the repeal of former Probate Code section 21320, which previously authorized safe harbor applications. With respect to substantive questions as to whether a claim triggers a no contest clause, pursuant to Probate Code section 21315, current law is applicable to all instruments which became irrevocable on or after January 1, 2001. Continue reading
A trustee is required to provide notice to heirs and beneficiaries when all or part of a revocable trust becomes irrevocable due to the death of a settlor pursuant to Probate Code section 16061.7. Under Probate Code section 16061.8 any action contesting the trust must be filed within 120 days from the date the notification by trustee is served upon the contestant “or 60 days from the day on which a copy of the terms of the trust is mailed or personally delivered to him or her during that 120-day period, whichever is later.”
Does Code of Civil Procedure section 1013 (which extends time for service by means other than personal delivery) apply to section 16061.8? No. A petition filed past the limitations period is untimely and a demurrer to the petition is properly sustained without leave to amend. Bridgeman v. Allen.
Laches is an equitable defense which may be asserted when unreasonable delay in bringing a cause of action results in prejudice. While the statute of limitations specifies the outside time limit within which a cause of action must be brought, laches considers the totality of circumstances surrounding delay, and any resulting prejudice, to deny a remedy when a claimant has “slept on his rights.” Continue reading
California Probate Code section 21350(a)(2) provides that no provision in any instrument shall be valid to make a donative transfer to: 1) The person who drafted the instrument; 2) A person who is related by blood or marriage to the person who drafted the instrument. Section 21351(a), however, exempts from disqualification transfers to persons who are related to the transferor by blood or marriage.
[The Probate Code was amended and renumbered since the opinion referenced below which references section 21350, above. Provisions that related to donative transfers, whether they be by will, trust, or otherwise are now contained in sections 21380 to 21392. The current text of these provisions which limit transfers to drafters and others is here. In view of these amendments, care should be taken when relying on opinions which construe Probate Code section 21350, the predecessor of section 21380.]
In Estate of Oligario Lira the court was confronted with the issue of whether transfers to stepchildren are barred when they are related to the drafter of the will and trust — when the transfers would occur only after the transferor’s death and at a time when the transferor was no longer married to their mother and therefore not related by marriage to them. Continue reading
In a case of first impression the court in Allen v. Stoddard was confronted with the circumstance where plaintiff’s suit — based upon an alleged contract to make a will against the executor of an estate — was filed 91 days after rejection by the estate of his creditor’s claim but within a year of the decedent’s death.
Probate Code sections 9350 to 9354 govern claims against decedents’ estates and section 9353 unambiguously states that regardless of any other statute of limitations, any claimant against an estate has only 90 days after notice of rejection of the claim by the estate to file suit. If section 9353 governs plaintiff’s claim is time-barred.
However, Code of Civil Procedure section 366.3 specifically gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent’s death to file suit. Was plaintiff’s suit, therefore, timely? The court held that it was. Continue reading
The California Supreme Court reverses the Court of Appeals and holds in Estate of Giraldin in a 4-2 opinion that where the trustee of a revocable trust is other than the settlor, the beneficiaries of a revocable trust have standing to sue the trustee for breach of fiduciary duty committed while the settlor was alive and the trust was still revocable, after the settlor dies.
In dissent Justice Kennard, with Justice Werdergar concurring, would have upheld the opinion of the Court of Appeals on the theory that the Probate Code only authorizes the decedent’s personal representative to sue on behalf of the beneficiaries in such circumstances; not the beneficiaries individually.
Unpublished opinions are a wonderful source of well-settled law and the legal principals upon which it is based. One such recent case is Estate of Hickey. Hickey involved the frivolous appeal of various probate court orders by a self-represented non-attorney. If you are self-represented and are considering an appeal of an order or judgment which you intent to prosecute yourself – the opinion is suggested required reading. Hopefully your eyes will be opened to the difficulties and danger you face as an untrained and unskilled appellant. You will decide, instead, to retain qualified counsel — to help you decide whether an appeal is in your best interests and, if so, to draft your opening brief.
A recent non-published case reaffirmed the rule that where the measure of trustee compensation is unambiguously set forth in the trust instrument that measure of compensation is controlling. It also highlights the necessity of obtaining court approval before fees requiring approval are incurred. Continue reading
California law generally provides with respect to hourly and flat fee agreements, except in an emergency or when the client is a corporation, that when it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed $1,000, the contract for services in the case shall be in writing. In the event there is no written contract when one is required, or the agreement fails to comply in some other respect with Business and Professions Code section 6148, the agreement is voidable at the client’s option. If the agreement is voided by a client, the attorney is nonetheless entitled to a reasonable fee. Continue reading
There were two cases decided today which are relevant and important to my areas of practice. They are esoteric for a blog post which is not directed to experts. Nonetheless, one holding is important to my clients who are contractors. The other for my clients whose inheritance in uncertain due to a change in the Probate code between the making of a Will and the death of the decedent who takes under a power of appointment. Continue reading