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Christopher Miles Kolkey

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Christopher Kolkey, a partner at Downey Brand LLP, litigates trust and estate cases. Chris grew up in Granite Bay. He earned his undergraduate and law degrees from UCLA and then worked at a Los Angeles law firm for four years before joining Downey Brand. (Read more...)

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Exactly where a court’s jurisdiction begins and ends is a question that has long irked our judicial system. One muddle is the extent to which federal courts, as opposed to state courts, can decide disputes involving a decedent’s estate. 

The probate exception to federal jurisdiction reserves to state courts the probate or annulment of a will and the administration of a decedent’s estate. The exception also precludes federal courts from disposing of property in a state probate court’s custody. While outwardly straightforward, the exception continues to perplex judges.

The U.S. Ninth Circuit Court of Appeals took up the probate exception in Silk v. Bond, 65 F.4th 445 (9th Cir. 2023), a case involving a wealth advisor who sought to collect his fee. Spoiler alert: the probate exception may be narrower than you think.

The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone sentence: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for…

[Editor’s Note: The California Supreme Court granted review of Haggerty v. Thornton on December 22, 2021 in Case No. S271483.  The Supreme Court is likely to resolve the conflict between Haggerty v. Thornton and King v. Lynch.  In the meantime, per the Supreme Court’s order, the Haggerty opinion remains citable.]

The Legislature and courts…

One of the first steps before filing a lawsuit is to decide which court has jurisdiction over it and where it is properly venued.  It’s a significant choice – not only for strategic reasons, but also because a poor selection may prove fatal to the lawsuit.  Such a hefty decision is not always an easy…

Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die.  It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes…

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) 47 Cal.App.5th 469 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.

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.

A key feature of a California revocable trust is that it can be amended.  Revising a trust can, however, seem like an irksome chore so it’s common for creators of trusts (i.e., “settlors” or “trustors”) to shrug off an amendment until it becomes clear they have limited time to settle their affairs.

Such procrastination invites mistakes, including failure to comply with a trust’s built-in procedure for amendments.  Indeed, while many trust instruments do not specifically prescribe how they may be amended, others do – often requiring “delivery” of the amendment to the trustees or settlors, that the amendment be signed, or both.

What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s achingly obvious that he intended to amend his trust?  Should a court rigidly bind him to the modification procedure or should it follow what seem to be his dying wishes?  The California Court of Appeal faced this conundrum recently in Pena v. Dey (2019) 39 Cal.App.5th 546.  The court required strict compliance with the trust’s modification procedure, rejecting a Post-it® note as satisfying a signature requirement. 

In the absence of a trust that allows assets to pass without opening probate, the California probate process lasts for at least six months and can run much longer depending on the size of the estate and the nature of assets. The role of the personal representative (i.e., the “executor” if nominated in the will) is to administer the estate efficiently, resolve creditor claims, and get the assets out to the rightful beneficiaries.

By no means, of course, is the probate process supposed to drag out for two decades. That’s exactly what happened, however, in a case in Riverside County Superior Court. In Estate of Sapp (2019) 36 Cal.App.5th 86, the California Court of Appeal affirmed the probate court’s removal of the personal representative, providing guidance as to when a representative may be removed. As the opinion indicates, probate is no time for napping by the personal representative or the beneficiary: the former has a fiduciary duty to get the job done and the latter may need to poke the dozing, inept and/or corrupt representative.

American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.”  There are, of course, exceptions to this so-called “American Rule.”  Among them is the “common fund” exception, which provides that one who incurs fees winning a lawsuit that creates a fund for others may require those passive beneficiaries to bear a fair share of the litigation costs.  As the word “fund” suggests, the benefit must be a tangible, easily calculable sum of money.  Courts have applied this exception to will and trust disputes where one beneficiary’s litigation causes other beneficiaries to receive a larger inheritance than they otherwise would have received.

But what happens when a trust beneficiary prevails in a lawsuit that doesn’t result in a tangible, monetary benefit but rather one such as removing an incompetent trustee or causing a trustee to prepare an accounting?  May beneficiaries who receive such benefits, but who take no part in the litigation, be required to pay for a portion of the litigating beneficiary’s legal expenses?  Last month the California Court of Appeal, in Smith v. Szeyller (2019) 31 Cal.App.5th 450, answered the question with a tantalizing “very possibly.”