California Courts Can Excuse Trustee Who Acts in Good Faith

A California trustee can be excused from liability for breaches of trust if a judge determines that it would be equitable to do so.

We see many situations where a family member trustee strays from the requirements of the trust instrument. Still, if the trustee does not favor himself or herself, and the beneficiary is not appreciably harmed, then the trustee may get a pass from the court under California Probate Code section 16440. That’s the lesson of Orange Catholic Foundation v. Arvizu (2018) ____ Cal.App.5th ____, published last month by the California Court of Appeal. Continue Reading

California Courts May Scrutinize Conservator Fees

By Jeffrey S. Galvin on October 3, 2018 Posted in Conservatorships, Private Professional Fiduciaries, Probate, Trust Administration

Private professional fiduciaries in California are entitled to charge a reasonable fee for their services, but their fees for acting as conservators are subject to close court scrutiny.

A recent California Court of Appeal case, In re Conservatorship of Presha (2018) 26 Cal.App.5th 487, shows how closely probate judges and their staffs may examine the billing entries of conservators. A conservator who cannot justify his or her time entries may leave the courthouse with an unwanted haircut. Continue Reading

Fore! California Court Drives Away Claim that Trustee’s Attorney Breached Trust

By Jeffrey S. Galvin on August 27, 2018 Posted in Beneficiaries, San Francisco County Superior Court, Trust Administration, Trustees

When attorneys advise errant trustees, how vulnerable are they to breach of trust claims by injured beneficiaries? A case published last week by the California Court of Appeal provides a defensive roadmap to attorneys who are sued for such claims, along with an occasion for golf metaphors.

In Cortese v. Sherwood (2018) ___ Cal.App.5th ___, the appellate court ruled that attorney John Sherwood was protected by California Civil Code section 1714.10, which was enacted in 1988 to combat the use of frivolous conspiracy claims brought as a tactical ploy against attorneys and their clients. Since the plaintiff failed to obtain the court’s approval before suing the attorney, as the statute required, she could not bring her claim against him. She could not get off the first tee. Continue Reading

Why Contingency Fee Representation Is Hard to Obtain in Trust and Will Contests

By Jeffrey S. Galvin on August 6, 2018 Posted in Inheritance Disputes, Legal Expenses, Mental Capacity, Undue Influence, Will/Trust Contests

Risk vs Reward

We often receive inquiries about whether we will represent parties in California trust and will contests on a contingency basis. In contingency representation, the lawyer does not collect a fee unless the client obtains a favorable settlement or court judgment. Contingency fees usually are structured on a percentage basis, with the lawyer receiving perhaps 25-40 percent of the value of the assets collected as specified in the fee agreement.

Generally we decline requests for contingency fee representation, choosing instead to represent contestants who can pay us on an hourly basis. Why do we take this approach? It’s tough, before litigation begins, to evaluate the risk and reward. Continue Reading

Don’t Let Time Run Out on Updating Your Life Insurance Beneficiaries

By Jeffrey S. Galvin on July 2, 2018 Posted in Beneficiaries, Divorce, Probate, San Mateo County Superior Court

Your ex-spouse may take under your life insurance policy if you do not change your beneficiaries and there’s nothing a California probate court can do about it. So ruled the Court of Appeal last month in Estate of Post (2018) ____ Cal.App.5th ____. Continue Reading

Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise

By Jeffrey S. Galvin on June 25, 2018 Posted in Attorney-Client Privilege, Orange County Superior Court, Private Professional Fiduciaries, Trust Administration, Trustee Removal

The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel. We blogged last year about an appellate opinion that reinforced this concept.

Last month, in Morgan v. Superior Court (2018) 23 Cal.App.5th 1026, the Court of Appeal found that a clause in a trust instrument expressly allowing a trustee to withhold attorney-client communications violates public policy and is unenforceable. California estate planning attorneys take note: there is no way to draft around the rule that the attorney-client privilege stays with the office of trustee.

Resolving California Trust and Estate Disputes – A Mediator’s Perspective

By Jeffrey S. Galvin on May 21, 2018 Posted in Conflict Avoidance, Mediation, Will/Trust Contests

Bette Epstein, Esq.

Many California trust and estate disputes are resolved by mediation instead of a final adjudication in the Superior Court. Mediation can offer a custom-crafted resolution to a case that avoids the stress, expense and unpredictability of a trial. When parties choose to mediate, there is often a deal to be found even if the positions seem polarized.

When is the right time to mediate and what are the keys to a successful outcome? I asked lawyer Bette Epstein, who now mediates for ADR Services, to share her thoughts.

Bette grew up in the East Bay. She received a Bachelor’s degree in Psychology from the University of Southern California, a Master’s degree in Counseling from Cal State East Bay, and law degree from USF School of Law. She practiced in the San Francisco Bay Area, working at the law firm of Crosby Heafey Roach and May, which merged with Reed Smith. She is a fellow of the American College of Trusts and Estates Counsel and a co-author of the CEB publication on Capacity and Undue Influence. Continue Reading

Mental Capacity Standards in California Civil Litigation

By Jeffrey S. Galvin on May 14, 2018 Posted in Evidence, Financial Elder Abuse, Mental Capacity, Will/Trust Contests

What mental capacity standards apply in California civil litigation? Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville. I’ll offer highlights here.

Short answer: it depends. The mental capacity standard varies depending on the setting. The policy rationale for the different standards is elusive, so as our clients present issues we focus on what standard governs instead of pondering why we have a hodgepodge of rules. Continue Reading

Stepmother vs. Stepchild, Now Playing in a California Probate Court Near You

By Jeffrey S. Galvin on April 23, 2018 Posted in Bank Trust Departments, Conflict Avoidance, Conservatorships, Divorce, Private Professional Fiduciaries, Trust Administration

Stepmothers are frequent characters in California trust and estate litigation, as they are in fairy tales and Disney movies. With about half of all marriages ending in divorce, there are many stepmother/stepchild relationships. Mostly they work out fine, but some go south.

After blogging on sibling conflicts as a driver of trust and estate disputes, I offer thoughts today about the litigation I see between stepmothers and stepchildren. In Family Feud parlance, my personal survey says that step-parent relationships are a close second to sibling relationships as the setting of trust and estate litigation. I’ll focus on stepmothers here, though of course stepfathers also often clash with their stepchildren. Continue Reading

Executor Can Swing Away at an Omitted Spouse Petition

By Jeffrey S. Galvin on March 5, 2018 Posted in Los Angeles County Superior Court, Probate

Born in Fresno, Kirk Kerkorian was an Armenian-American who went on to become a wealthy businessman and philanthropist, known for his role in shaping development in Las Vegas. After Kerkorian died in June 2015 at the age of 98, his last wife Una Davis filed a claim for a third of his large estate as an “omitted spouse.”

Early this year, the California Court of Appeal ruled in Estate of Kerkorian (2018) 19 Cal.App.5th 709 that Kerkorian’s executor, his longtime business associate Anthony Mandekic, could defend against Davis’ claim, more broadly clarifying when executors can participate in petitions to determine entitlement to decedents’ estates. Continue Reading

Welcome to our trust and estate litigation blog. Inheritance disputes are on the rise nationally as the baby boomers age and wealth passes from one generation to the next. This is high stress litigation, often pitting sibling against sibling or second spouse against step-children.

We cover hot button issues in California trust litigation and probate litigation, ranging from the flash points that we see in our cases to recent developments in the field. We discuss trust contests, will contests, and administration disputes. We explore issues of mental capacity, undue influence, fiduciary duty, and financial elder abuse. We follow how California courts grapple with dementia attributed to Alzheimer’s disease, which is becoming more prevalent in our population. We comment on local court practices, including procedures in Department 129 (the probate unit) of Sacramento County Superior Court. We hope that our blog will be of interest to estate planning professionals and to family members immersed in trust and estate disputes. We invite you to follow our blog and to get to know us through our posts.

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