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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Schism Deepens on California Trust Modification

By Christopher Miles Kolkey on Posted in Trust Administration, Will/Trust Interpretation
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 … Continue Reading

Trust Modification/Amendment Procedure Now Unsettled in California

By Christopher Miles Kolkey on Posted in California Supreme Court, Trust Administration, Will/Trust Interpretation
[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 endeavor … Continue Reading

Lights, Cabin, Action! A Showdown Over Jurisdiction and Venue

By Christopher Miles Kolkey on Posted in Beneficiaries, Estate Administration, Jurisdiction, Probate, Trust Administration
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 … Continue Reading

En Garde! A Trust’s Revocation Method May Not Be Enforced Unless It Explicitly States It’s the Exclusive Means of Revocation

By Christopher Miles Kolkey on Posted in Beneficiaries, Trust Administration, Trust Revocation, Undue Influence, Will/Trust Interpretation
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 … Continue Reading

Trustees May Not Need Lawyers to Seek Instructions from California Courts, But the Do-It-Yourself Approach Remains Hazardous

By Christopher Miles Kolkey on Posted in Bank Trust Departments, Legal Expenses, Trust Administration, Trustees
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 … Continue Reading

Mind Your Notice in California – Even Remote Contingent Beneficiaries May Need to Be Served

By Christopher Miles Kolkey on Posted in Beneficiaries, Probate, Trust Administration
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 … Continue Reading

Don’t Rely on a Post-It® Note to Amend Your California Trust

By Christopher Miles Kolkey on Posted in Sacramento County Superior Court, Will/Trust Interpretation
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 … Continue Reading

California Probate Administration Is No Time for Napping

By Christopher Miles Kolkey on Posted in Bank Trust Departments, Mental Capacity, Private Professional Fiduciaries, Probate
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) … Continue Reading

Free Rider No More — When Can a California Trust Beneficiary Shift Legal Fees to Other Beneficiaries?

By Christopher Miles Kolkey on Posted in Accounting, Beneficiaries, Legal Expenses, Trust Administration
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 … Continue Reading
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