Section 850 Petitions Can’t Be Used to Obtain a Fiduciary’s Documents

What pea is in which pod?  California probate disputes often involve questions of property ownership.  Petitions filed under Probate Code section 850 allow judges to determine whether and to what extent an estate is the true owner of specified property.

Yet how far can Section 850 petitions be stretched?  In Parker v. Schwarcz (2022) ___ Cal.App.5th ___, the Court of Appeal found that such petitions cannot be used as a vehicle to obtain a fiduciary’s file materials.

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Judgments Should Name Fiduciaries in Their Representative Capacities

When an administrator (or executor) of a California estate is named in a judgment, the attorney drafting the judgment must be careful.  A person who acts in a representative capacity should be identified that way in the judgment – otherwise, the attorney may have to pursue a costly fix.

A recent probate case from San Joaquin County Superior Court illustrates the point.  The Third District Court of Appeal, in Estate of Billy Joe Douglas (2022) ___ Cal.App.5th ___, held that a clerical error in naming an estate administrator as a judgment debtor could be fixed by a motion to correct the judgment.

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When a Health Care Directive Isn’t Enough – California Court Shreds Another Arbitration Agreement

Operators of skilled nursing facilities want their patients to enter into arbitration agreements.  While such agreements don’t eliminate the risk of litigation, they at least reduce the expense and exposure associated with potential jury trials.

California appellate courts, however, have taken an ever narrower view of who can sign arbitration agreements on behalf of patients.  Just over the last few years, courts have found that agreements may be unenforceable when signed by family membersconservators, and even attorneys-in-fact.  The latest decision in this line of cases is Logan v. Country Oaks Partners, LLC (2022) ___ Cal.App.5th ___.

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Expanding Access to Estate Planning – A Conversation with Verleana Green-Telusca

Studies and surveys reveal an equity gap in estate planning.  Americans in communities of color are less likely to have plans in place, a troubling disparity given how important estate planning is for all of us.

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Court of Appeal Caps Pretrial Attachment in Financial Elder Abuse Cases

Plaintiffs who sue for financial elder abuse run the risk that defendants will spend ill-gotten gains before they can be recovered.  To address this problem, the California Legislature gave plaintiffs the opportunity to “attach” or freeze assets at the outset of a case.

The Court of Appeal, in Royals v. Lu (2022) ___ Cal.App.5th ___, recently shed light on pretrial right to attach orders in the context of claims under California’s Elder Abuse Act.  Procedurally, applications must be detailed.  Substantively, they must be limited to alleged compensatory damages and cannot be based on statutory penalties or punitive damages – thus putting a lid on the amount to be attached.

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Late Trust Contest May Trigger Enforcement of No Contest Clause

No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument.

Yet the probable cause safe harbor may disappear if the contest is untimely.  That’s the upshot of Meiri v. Shamtoubi (2022) ___ Cal.App.5th ____, a Court of Appeal opinion issued last week.

An untimely contest of a trust instrument that contains a no contest clause may have a boomerang effect by disqualifying the contestant from receiving any benefit from the trust.

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And the Rocket’s Red Glare – Trustee Removal Petitions May Be Costly to Those Who Launch Them

Trustee removal petitions, like Centennial Fountains, are one of the more common fireworks in California trust litigation.  We’ve explored how such petitions are litigated in prior post and a podcast.

In Bruno v. Hopkins (2022) ___ Cal.App.5th ___, the California Court of Appeal broke new ground by finding that a beneficiary who in bad faith seeks to remove a trustee may be held personally liable for hefty defense fees and costs.  The liability is not limited to the value of the beneficiary’s share of the trust.

Unlike the mysterious character in the movie Encanto, we should talk about Bruno, yes, yes, yes.

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Employing Caregivers and Advising Those Who Do – A Podcast with Bob King

Families often pay straight hourly wages to in home caregivers.  But paying $18 an hour to a caregiver for a twelve hour shift may end up costing the family much more.  As noted in a prior post, California law classifies in home caregivers as employees and they must be paid in accord with wage and hour laws.

Attorney Bob King created and operates Legally Nanny®, an employment law firm located in Orange County that represents home care and nanny agencies as well as household employers.  Listen here for our conversation on Trust Me!, the podcast of the Trusts and Estates Section of the California Lawyers Association.

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Who Can Oversee Revocable Charitable Trusts?

Narcotics Anonymous established a revocable trust to manage its literature and other intellectual property assets for the benefit of its many members.  A “regional delegate group” filed a petition in Los Angeles probate court claiming that the trustee was breaching its fiduciary duties.

The California Court of Appeal, in Autonomous Region of Narcotics Anonymous v. Narcotics Anonymous World Services, Inc. (2022) 77 Cal.App.5th 950, explored the question of who has standing to bring claims against the trustee of a revocable charitable trust.  Because the settlor, i.e., creator, of a revocable trust may oversee and take action against an errant trustee, the court declined to extend the “special interest” standing doctrine to other interested parties.

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See No Evil? Premarital Agreement May Cause Spouse to Lose Inheritance and Role as Administrator of Estate

We write today about probate law, premarital agreements and the importance of doing your homework.

In Estate of Eskra (2022) 78 Cal.App.5th 209, the First District Court of Appeal upheld a Humboldt County Superior Court decision to enforce as valid a premarital agreement that a surviving spouse signed without reading.  How did the surviving spouse get here, and what are the consequences?

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