Sacramento Court Limits Reach of Anti-SLAPP Law in Trust Disputes

3rd District Court of AppealA few months ago, I wrote about the anti-SLAPP statute as a powerful defensive tool in California trust and estate litigation. Adding new light to the subject is a Sacramento-based appellate court’s decision in Greco v. Greco (2016) 2 Cal.App.5th 810.

The case narrows the ability of fiduciaries to bring motions to dismiss under the anti-SLAPP statute when they are sued for how they have spent trust and/or probate assets. Continue Reading

When Does Bad Behavior in Trust and Estate Disputes Become Criminal?

Jail CellMany trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail?

While many of my clients are rightfully outraged about the family member or interloper who has stolen money from a vulnerable elder, criminal prosecution is relatively unusual. Our criminal laws, including California Penal Code section 368(d), prohibit defrauding an elder but our prosecutors seldom prosecute those who could go to prison. Continue Reading

Sacramento Trust and Probate Litigation “Boot Camp” Program

Boot Camp_RevisedThe Sacramento County Bar Association’s Probate and Estate Planning Section hosted its first ever “boot camp” program on trust and estate litigation on September 20, 2016. As an alternative to the monthly lunch programs, the Section offered a six-hour seminar at its office at 425 University Avenue in Sacramento. The program drew a full house of approximately 80 attendees, ranging from law students to experienced lawyers.

I presented on will and trust contests in California Superior Court and provide highlights from my talk below. Continue Reading

Red Alert: California Trust and Estate Litigation on an Ex Parte Basis

Emergency1It’s early in the morning, you’ve only just started your first cup of coffee, and your first few sips of java have not yet percolated your brain into full gear. Suddenly, your cellphone vibrates, a call is coming. You do not recognize the number, but you answer anyway. Hello? You have just been provided notice of an ex parte hearing in the probate department. A what?!?! Continue Reading

California Courts Interpret Ambiguous Trust Documents by Stepping Into Creator’s Shoes

Stepping into shoesGuest author Karina Stanhope, a Downey Brand associate, contributes today’s post.

Trust documents should be customized to serve the estate planning objectives of those who create them. While Parent One may want all of her assets to be distributed in equal shares to her children, Parent Two may want to exclude a child from receiving anything or tie up his share until he obtains a college degree or reaches a certain age. Experienced attorneys can draft trust documents that effectuate client wishes using clear and consistent language. However, many times, inexperienced or incautious drafters will leave language that is conflicting or incomplete, and many clients are unable to spot the ambiguity.

California trust litigation often arises from murky trust language, as varying interpretations of trust documents may favor one beneficiary over another. Judges and commissioners of the Superior Court of California are the arbiters of what disputed trust language means. Fortunately, there are code sections and appellate cases to guide the way. Continue Reading

Court in California Trust Contest Invalidates Transfer to Drafting Attorney


Hand in the Money Jar

“An ethical estate planning attorney will plan for his client, not for himself.” With those words, the California Court of Appeal recently ripped Southern California attorney John LeBouef for taking advantage “of an elderly and mentally infirm person to enrich himself.” 

In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the invalidation of John Patton’s will and trust, which purportedly left Patton’s $5 million estate to LeBouef.  The ruling illustrates the Probate Code’s prohibition of donative transfers to categories of persons who, because of their relationship with the creator of a trust, might exercise undue influence. The law, in particular, presumes that an attorney who drafts a trust in which the attorney is named as a beneficiary does so without the client’s knowledge and consent. The opinion also shows how contestants can use evidence of other “bad acts” to bolster their cases if those other acts show a common plan or scheme. Continue Reading

Watch Out for SLAPPs in California Trust and Estate Litigation

Anti SLAPPIn heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother Bob may file a petition to enforce the no contest clause in the trust against Sally and thus seek to intimidate her.

Yet retaliatory claims can be radioactive for those who assert them given California’s “anti-SLAPP” statute, codified at Code of Civil Procedure section 425.16. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” The statute creates a “special motion to strike” frivolous claims that aim to chill the valid exercise of speech and petition rights. A petitioner faced with an anti-SLAPP motion quickly finds himself on the hot seat. If he lacks evidence to substantiate his claims, the court will dismiss them and require him to pay his opponent’s legal expenses. Continue Reading

Til Death Do Us Part: California’s New Transfer on Death Deeds

Deed TransferCalifornia’s new transfer on death deeds (“ToD deeds”) allow for the transfer of real estate upon the occurrence of death without the need for costly estate planning or probate administration. Codified at California Probate Code section 5600 – 5696, the new mechanism may fill a void in the array of estate planning options, but it is not likely to catch on with traditional estate planning attorneys for the reasons discussed below.

Fresno attorney Mark Poochigian presented a thoughtful and at times critical assessment of ToD Deeds at a Sacramento County Bar Association luncheon in June. At the Summer Education Conference of the California State Bar Trusts and Estate section, only one of the more than one hundred attorneys in attendance acknowledged having prepared one of these new deeds since the law went into effect on January 1, 2016. Continue Reading

Parent Custody Battles Leave Everyone Bruised

Siblings arguingMost California trust and estate disputes are emotionally intense, and none more so than sibling conflicts over the care of an aging parent. Like a child custody fight in the family law context, siblings battle over whether Mom will remain in the home where she lives, move in with one of them, or move to an assisted living facility. They fight over who will manage Mom’s finances and interact with her doctors.

California courts have the tools to resolve these disputes, but struggle to evaluate competing claims of siblings and have a limited attention span to parse through them. Very often, when siblings cannot find middle ground, Mom’s care and finances will end up in the hands of a third party conservator and trustee, after many thousands of dollars in legal fees. Continue Reading

Where Credit Is Due – California Creditor Claims Against An Estate

Money TargetSpeak promptly or forever lose your rights. Creditor claims are an intricate area of California probate law that fills chapters in legal treatises. Fail to comply with the nuanced rules and you lose your claim against a decedent’s estate even if liability is otherwise rock solid. But what is a creditor claim and when is it required?

A creditor claim is a demand for payment that must be filed with the probate court and served on the personal representative (e.g., executor) of a decedent’s estate within a specified timeframe. Presentment of a creditor claim (and its rejection) is required before a lawsuit may be filed against the decedent’s estate. Moreover, if there is no pending probate case in the Superior Court, the creditor may have to take the initiative by opening a probate proceeding so as to create a case within which to present a claim. Continue Reading