California Court May Award Attorney’s Fees to Financial Elder Abuse Plaintiff Who Does Not Prove Damages

A new case from the Court of Appeal once again illustrates the robust nature of claims under California’s Elder Abuse and Dependent Adult Civil Protection Act, also known as the Elder Abuse Act.

In Arace v. Medico Investments, LLC (2020) ___ Cal.App.5th ___, a San Bernardino County jury found the owner of a residential care facility for the elderly liable for the financial elder abuse of a resident, but did not award any damages on that claim.  Nonetheless, the court properly awarded legal expenses to the plaintiff as the prevailing party.  This broad view of a plaintiff’s entitlement to legal expenses shows the bite of the Elder Abuse Act and will encourage elders and their advocates to pursue financial elder abuse claims. Continue Reading

Trustees May Not Need Lawyers to Seek Instructions from California Courts, But the Do-It-Yourself Approach Remains Hazardous

While California trustees hope for smooth sailing, they must navigate waters that can be choppy depending on the assets, trust instruments and personalities involved.  As fiduciaries, trustees must honor the trustors’ intent as expressed in the trust instruments.  Sometimes the language is unclear and the trustee needs instruction from a court as to how to proceed.

If they are not already working with an attorney, most trustees will (and should) seek guidance from counsel when uncertain about what to do.  An attorney, generally at the expense of the trust, can help the trustee decide whether to file a petition for instructions, draft the necessary paperwork, serve it on parties entitled to notice, and then appear in the probate department of the court on behalf of the trustee.  Some DIY-minded trustees, however, may be inclined to proceed without paying an attorney.  Business & Professions Code section 6125 provides that a person can’t practice law unless he/she is an active member of the State Bar of California.  When can a trustee represent himself or herself in court without engaging in unauthorized practice of law?

Earlier this month, the Court of Appeal held in Donkin v. Donkin, Jr. (2020) ___ Cal.App.5th ___ that individuals acting as trustees may represent themselves when seeking instructions from a California court.  Yet, like an inexperienced sailor who attempts a solo ocean journey, a trustee who proceeds without counsel risks serious missteps such that self-representation may end up being far more costly in the long run. Continue Reading

New California Statutes Change Spousal Undue Influence Presumptions

California trust and estate disputes often involve allegations that a surviving spouse took advantage of a deceased spouse so as to get more of the latter’s assets.  Often the “spousal financial abuse” charges are leveled by the deceased spouse’s biological children against their step-parent, as discussed in a prior post.  Sometimes care custodians who are hired to care for vulnerable elders marry them to achieve financial gain, much to the surprise and consternation of surviving family members.

Assembly Bill 327 and Assembly Bill 328, passed by the California Legislature last year and effective on January 1, 2020, adjust the statutory presumptions of undue influence that apply to spouses with respect to estate planning.  The legislation was sponsored by the Trusts and Estates Section of the California Lawyers Association.  On March 24, 2020, attorney Ellen McKissock explained AB 327 and 328 in a webinar entitled “Care Custodians and Spouses: New Legislation Affecting Their Rights.”  Ms. McKissock is Vice Chair of the Executive Committee of the Trusts and Estates Section. Continue Reading

Another Shiner – Court Confirms Hefty Fee Award to California Attorney General in Breach of Charitable Trust Action

In California, the Attorney General oversees charitable trusts.  This responsibility includes bringing legal actions against trustees who breach their fiduciary duties.  Government Code section 12598 provides that the Attorney General is entitled to recover from a defendant all reasonable attorney’s fees and actual costs incurred in an action to enforce a charitable trust.  But what happens when the Attorney General is only partially successful in its case against the defending trustee of a charitable trust?

People ex rel. Becerra v. Shine (2020) ____ Cal.App.5th ____ provides the answer.  The Government Code does not require a stringent analysis of whether the Attorney General has achieved all of its litigation goals or has been completely successful on every claim.  Further, the Attorney General is entitled to attorney’s fees when it has generally accomplished what it set out to do, which in People v. Shine was to prove that Shine had breached his fiduciary duties and to recover funds for the trust. Continue Reading

California Estate Planning Disrupted by COVID-19 Virus and “Social Distancing”

Scientist in a laboratoryWhat a difference a few weeks make!  A month ago, the COVID-19 virus was a distant threat.  Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.

Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished.  Folks who never had estate plans also are seeking to get them done.

California’s estate planning formalities, however, create challenges in our pandemic situation. Continue Reading

Mind Your Notice in California – Even Remote Contingent Beneficiaries May Need to Be Served

It’s unremarkable that California courts require that notice be given to affected beneficiaries in trust and probate proceedings.  After all, the Fourteenth Amendment guarantees that no person will be deprived of life, liberty, or property without due process.  While contingent beneficiaries may not have received an inheritance yet, they may someday and so should know if someone’s trying to tamper with their potential payday.  But how far do notice requirements really go?  Must notice be given to beneficiaries who likely won’t ever get a nickel?

The California Court of Appeal wrestled with this issue in Roth v. Jelley (2020) 45 Cal.App.5th 655, and held that beneficiaries who will only receive an inheritance upon the happening of an event (i.e., contingent beneficiaries) have a property interest in an inheritance and are therefore entitled to notice under constitutional due process requirements. Continue Reading

Openness and Transparency Help Avoid Trust Disputes – An Interview with Tracy Potts

Tracy PottsTracy M. Potts has nearly three decades of experience in California with estate planning, administration and litigation.  A Texas native, she earned her law degree from Southern Methodist University School of Law.  Her leadership experience includes chairing the Executive Committee of the State Bar of California, Trusts and Estates Section, as well as the Sacramento County Bar Association, Probate and Estate Planning Section.  She is a certified specialist in estate planning, trust, and probate by the State Bar of California, Board of Legal Specialization.  She also is a fellow of the The American College of Trust and Estate Counsel.

Tracy’s law firm, Legacy Law Group, operates from the Natomas area of Sacramento.  I sat down with Tracy at her office in February 2020 to discuss estate planning and dispute avoidance. Continue Reading

Judge Culhane Shares Thoughts on Sacramento County Probate Department

Judge Kevin R. Culhane rotated into Sacramento County Superior Court’s probate department in January 2020.  He shared his initial impressions with members of the probate bar on February 18, 2020, at the monthly lunch of the Sacramento County Bar Association’s Probate and Estate Planning Law Section.

Noting that probate filings are on the rise, he likened the business of the Court’s probate unit (Department 129) to trying to fit ten gallons of water into a five-gallon bucket. Continue Reading

I’m Still Standing – California Supreme Court Allows Trust Amendment Contests in Probate Court

Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) ___ Cal.5th ___, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200.

The Court of Appeal had narrowly construed section 17200 to limit contests in the probate department to current trustees and beneficiaries.  Continue Reading

Put It on My Tab – When Is a Lifetime Gift in California an Advancement Against Inheritance?

Pint of Craft BeerA primary purpose of estate planning is to determine what a child will inherit (if anything) upon a parent’s death.  But what about a gift given during the parent’s life?  Is it an advance on the child’s inheritance, like putting it on the child’s tab until the trust is cashed out?  Or is the gift in addition to anything the child will get upon the parent’s death?  The answer in California depends on the parent’s intent when the gift was made – more specifically, whether the parent wanted it to be an advance.  The problem is determining the parent’s intent after death.

California Probate Code section 21135 describes the circumstances under which a lifetime gift will be considered an advancement against a beneficiary’s inheritance.  In Sachs v. Sachs (2020) ___ Cal.App.5th ___, the Court of Appeal examined Section 21135 and concluded that a parent’s written records of lifetime gifts established them as an advancement against a child’s inheritance.  This opinion provides guidance to parents who make gifts and to siblings in conflict over them. Continue Reading

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