Purple Rain Shower in California — Prince’s Estate Chases Northern California Law Firm

By Jeffrey S. Galvin on Posted in Asset Distribution, Inheritance Disputes, Probate

When musician Prince Rogers Nelson died at the age of 57 on April 21, 2016, he had no estate plan in place, not even a will.  We blogged that “You Don’t Have to Be Rich to Need an Estate Plan.”

As the third anniversary of Prince’s death approaches, his probate estate continues to be administered in Carver County District Court in Minnesota.  Judge Kevin Eide issued orders naming Comerica Bank & Trust as Personal Representative (i.e., administrator) of the Estate and identifying Prince’s six siblings and half-siblings as the heirs.

Litigation involving the Estate spilled over into California in December 2018 when Paisley Park Enterprises, Inc. (Prince’s company) and Comerica as Personal Representative filed a motion to compel compliance with a subpoena by a Redding-area law firm, Sidebar Legal, PC.  See Paisley Park Enterprises, Inc. v. Boxill, U.S. District Court, Eastern District of California, Case No. 2:18-mc-00211-MCE-KJN.  Continue Reading

Barefoot No More – California Supreme Court to Review Standing of Trust Contestants

By Jeffrey S. Galvin on Posted in Beneficiaries, California Supreme Court, Mental Capacity, Tuolumne County Superior Court, Undue Influence, Will/Trust Contests

Can a disinherited person contest a trust amendment under California Probate Code section 17200?  No, said the Court of Appeal last August in Barefoot v. Jennings (2018) 27 Cal.App.5th 1.

The Barefoot opinion put pending trust contests in jeopardy, as contestants typically have used section 17200 as the procedural hook to challenge trust amendments that disfavored them.  Last week, however, the California Supreme Court granted review of Barefoot such that the opinion no longer has precedential value. Continue Reading

Trustee Fees in California – Tips for Family Member Trustees

By Jeffrey S. Galvin on Posted in Private Professional Fiduciaries, Trust Administration, Trustee Fees, Trustees

What is a reasonable trustee’s fee in California for a family member who acts as trustee?  We see a high degree of conflict over this issue even when the amount of the claimed fee is small compared to value of the trust estate.  Our blog analytics show that our post of a few years ago on the fee issue continues to draw a high number of hits.  If you found this post in a Google search, you are probably grappling with a fee dispute in your family’s trust.

California Probate Code section 15681 generally permits a “reasonable” fee, but the term is hazy in practice.  Most California Superior Courts do not have fee guidelines in their local rules.  While California Rule of Court 7.776 lists factors a court may consider in reviewing trustee compensation, the trustee and the beneficiaries are likely to apply those factors differently.  Accordingly, fee disputes are common in California trust litigation.

Here we’ll discuss best practices for a trustee with respect to claiming a fee.  Let’s use the common situation where Mom and Dad have picked one of their several children to act as successor trustee when they die or become incapacitated.  When Larry becomes the trustee, siblings Moe and Curley may be resentful and thus disinclined to go along with any fee.  Continue Reading

California Court Can Apply Impossibility Doctrine

By Jeffrey S. Galvin on Posted in Contra Costa County Superior Court, Trust Administration, Undue Influence, Will/Trust Interpretation

What happens when the settlor (i.e., creator) of a trust imposes a condition precedent on receipt of a distribution from the trust, but the condition cannot be met because the circumstances have changed?  Is the beneficiary out of luck for reasons beyond his or her control?

The First District Court of Appeal took up this issue in Schwan v. Permann (2018) 28 Cal.App.5th 678, finding that the doctrine of impossibility can excuse a condition precedent.  While impossibility comes into play infrequently in California trust and estate disputes, the doctrine allows some flexibility in the terms of trusts and wills so as to achieve an equitable result. Continue Reading

California Courts Can Excuse Trustee Who Acts in Good Faith

By Jeffrey S. Galvin on Posted in Orange County Superior Court, Trust Administration, Trustees

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) 28 Cal.App.5th 283, published last month by the California Court of Appeal. Continue Reading

California Courts May Scrutinize Conservator Fees

By Jeffrey S. Galvin on 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 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) 26 Cal.App.5th 445, 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 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 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) 24 Cal.App.5th 984. Continue Reading

Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise

By Jeffrey S. Galvin on 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.

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