Home Is Where You Lay Your Sombrero – Spouse Who Lives Abroad Cannot Serve as Administrator of Husband’s Estate

Here’s another reason (uno más in Spanish) to create and properly execute a will. If your spouse or other trusted designee lives out of the country when you die, he or she won’t be eligible to administer your California estate. The recent case of Estate of El Wardani (2022) 82 Cal.App.5th 870, involving a San Diego couple who moved to Mexico, illustrates this point.

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You’re Fired! Mature Minors May Seek Removal of Guardians Ad Litem

California probate courts may appoint guardians ad litem (“GALs”) to represent the interests of those who cannot speak for themselves, including minors. While Probate Code section 1003 provides for the appointment of GALs, it does not speak to their removal. A recently published opinion, Chui v. Chui (2022) ___Cal. App. 5th ___ (“Chui II”) attempts, in a very limited holding, to rectify this procedural deficiency by establishing that minors have the right to request removal of their GALs.

Less than a year ago, the Court of Appeal published Chui v. Chui (2022) 75 Cal.App.5th 873 (“Chui I”) involving Jacqueline and Michael Chui (“Chui children”) and their GAL, Jackson Chen, who was appointed by the Los Angeles County Superior Court. No longer minors, the Chui children have returned, this time to seek Chen’s removal.

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Legislature Updates California’s Guardian Ad Litem Appointment Statutes

California courts may appoint guardians ad litem as helping hands to act for those unable to make their own decisions in litigated cases because they are minors or incapacitated adults.  For background, see our prior post.

Senate Bill 1279, effective January 1, 2023, clarifies and improves the rules governing the selection of guardians ad litem, commonly known as “GALs.”  Sponsored by the Trusts and Estates Section of the California Lawyers Association, the bill amends Code of Civil Procedure section 372 and Probate Code section 1003.  The legislation is of broad import to California litigators regardless of practice area.

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Anti-Isolation Restraining Orders Available in 2023

[Editor’s Note: This post was revised on January 11, 2023 after the implementing Judicial Council forms became available.]

California trust and estate disputes often include claims that one or more family members have isolated or are isolating an elder for financial gain.  For example, Brother may have difficulty communicating with Mother and blame Sister for disabling or discouraging such contact.

Enter California Assembly Bill 1243.  Effective January 1, 2023, the Elder Abuse Act will allow interested parties to seek anti-isolation restraining orders.  Judges will have to evaluate often murky family situations to determine whether and how to intervene.  AB 1243 also will permit judges to review the propriety of “specific debts” to determine whether they were the product of elder abuse.

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Print and Sign Your Will – A Lesson from the Anne Heche Estate

Traditionally, the creation of a valid will, in California and elsewhere, required strict adherence to certain formalities.  Estate law has been tepidly moving away from requiring compliance with those formalities, with a goal of prioritizing the intent of the person creating the will (the “Testator”).  Nine states have gone so far as to enact laws that authorize electronic wills.

While our Legislature has considered similar laws, California is not currently among the states that permit the use or recognition of electronic wills.  Following the passing of actress Anne Heche, a California judge was asked to consider whether an email the actress had sent to her ex-partner, James Tupper, qualified as a will despite California’s lack of legislation validating electronic wills.

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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) 84 Cal.App.5th 418, 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) 83 Cal.App.5th 690, 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) 82 Cal.App.5th 365.

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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) 81 Cal.App.5th 328, 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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