Many family member trustees are uncertain about whether and to what extent they can use trust assets to obtain legal representation. For example, when two parents choose their daughter, upon their incapacity or death, to administer their trust as the successor trustee, the daughter may be unsure whether she can use trust money to hire
Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets. But many disputes, or at least potential disagreements, involve people who can’t fend for themselves, such as mentally incapacitated adults, children…
A new case from the Court of Appeal once again illustrates the robust nature of claims under California’s Elder Abuse and Dependent Adult Civil Protection Act, also known as the Elder Abuse Act.
In Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, a San Bernardino County jury found the owner of a residential care facility for the elderly liable for the financial elder abuse of a resident, but did not award any damages on that claim. Nonetheless, the court properly awarded legal expenses to the plaintiff as the prevailing party. This broad view of a plaintiff’s entitlement to legal expenses shows the bite of the Elder Abuse Act and will encourage elders and their advocates to pursue financial elder abuse claims.
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.
In California, the Attorney General oversees charitable trusts. This responsibility includes bringing legal actions against trustees who breach their fiduciary duties. Government Code section 12598 provides that the Attorney General is entitled to recover from a defendant all reasonable attorney’s fees and actual costs incurred in an action to enforce a charitable trust. But what happens when the Attorney General is only partially successful in its case against the defending trustee of a charitable trust?
People ex rel. Becerra v. Shine (2020) ____ Cal.App.5th ____ provides the answer. The Government Code does not require a stringent analysis of whether the Attorney General has achieved all of its litigation goals or has been completely successful on every claim. Further, the Attorney General is entitled to attorney’s fees when it has generally accomplished what it set out to do, which in People v. Shine was to prove that Shine had breached his fiduciary duties and to recover funds for the trust.
Judge Kevin R. Culhane rotated into Sacramento County Superior Court’s probate department in January 2020. He shared his initial impressions with members of the probate bar on February 18, 2020, at the monthly lunch of the Sacramento County Bar Association’s Probate and Estate Planning Law Section.
Noting that probate filings are on the rise, he likened the business of the Court’s probate unit (Department 129) to trying to fit ten gallons of water into a five-gallon bucket.
This blog post views a trustee’s fee from the beneficiary’s perspective. Under California law, a trustee generally can set his or her own fee and collect it without prior disclosure to the beneficiaries. What can a beneficiary, who sees a hand reaching too greedily in the trust cookie jar, do in response?
We discussed best practices for a trustee when claiming a fee in a prior post and now consider how a beneficiary can monitor, evaluate and object to a trustee’s fee.
What do you do if someone steals money or property from a trust or estate? California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back. To discourage such theft, Probate Code section 859 provides that the wrongdoer “shall be liable for twice the value of the property recovered,” and may be liable for legal expenses incurred to recover the property, if you can prove the wrongdoer took the asset in bad faith, through undue influence, or through the commission of financial elder abuse.
Like many California statutes, the “twice the value” language of Probate Code section 859 is not crystal clear. Thankfully, the Fourth District Court of Appeal in Conservatorship of Ribal (2019) 31 Cal.App.5th 519 recently provided guidance as to how to the calculation works.
Are six sibling co-trustees too many cooks in the kitchen? Many California trust disputes arise from disagreements among sibling co-trustees over how to administer Mom and Dad’s trust after the parents have passed. They all have a strong sense of what Mom and Dad wanted, but they don’t agree on what it was. Thus, trust and estate litigators can be described as “sibling lawyers.”
A recent appellate opinion illustrates such co-trustee conflict and shows the unpredictability of our judicial process. In Trolan v. Trolan (2019) 31 Cal.App.5th 939, the California Court of Appeal addressed issues of trust interpretation and trustee removal in a situation where five siblings were aligned against the sixth.
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.”