There’s a saying amongst attorneys that “bad facts make bad law.” By extension, “really bad facts” can throw probate procedure into flux by making it harder to qualify for an evidentiary hearing. That’s arguably what happened in Conservatorship of Farrant (2021) 67 Cal.App.5th 370, a decision issued this month by the California Court
Many California trusts confer a lifetime right to income on a person (often the surviving spouse) with the remainder passing to designated survivors upon the income beneficiary’s death. When the income beneficiary dies, is it too late for the executor of the beneficiary’s estate to request an accounting for the purpose of evaluating whether the
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
As we enter the New Year, it’s a good time to revisit your estate plan. The big question is whether your will, trust, power of attorney, and advance health care directive accomplish your personal objectives. Guidance from an estate planner will help you review your plan in light of tax and other changes in the
Many California trust and estate disputes involve the allocation of real estate amongst several beneficiaries. Mom and Dad, may they rest in peace, owned an upscale home in the Fab 40s neighborhood of East Sacramento, a sweet Tahoe vacation home, and a few rental duplexes, but did not specify how these assets were to
(Editor’s Note: The example in the post below has been revised.)
California causes of action are subject to various statutes of limitation. Unless a plaintiff or petitioner files a complaint or other document asserting a cause of action within the applicable limitations period, the filing will be deemed time barred and subject to dismissal. Under some circumstances, however, statutes of limitation may be tolled or suspended so as to extend the filing period.
When the COVID-19 pandemic caused court closures, the California Judicial Council responded with Emergency Rule 9, which tolled the statutes of limitation for civil actions from March 6, 2020 until 90 days after the Governor lifts the state of emergency, which will not occur until an unknown future date.
The initial emergency rule, issued April 6, has now been revised and partially clarified. As California courts began to reopen in May, the Judicial Council chose to put a clearer endpoint on the tolling of limitations periods. A memorandum from the Judicial Council provides background on the amended rule.
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.
Tracy M. Potts has nearly three decades of experience in California with estate planning, administration and litigation. A Texas native, she earned her law degree from Southern Methodist University School of Law. Her leadership experience includes chairing the Executive Committee of the State Bar of California, Trusts and Estates Section, as well as the Sacramento County Bar Association, Probate and Estate Planning Section. She is a certified specialist in estate planning, trust, and probate by the State Bar of California, Board of Legal Specialization. She also is a fellow of the The American College of Trust and Estate Counsel.
Tracy’s law firm, Legacy Law Group, operates from the Natomas area of Sacramento. I sat down with Tracy at her office in February 2020 to discuss estate planning and dispute avoidance.
California’s probate process aims to expeditiously identify and resolve the claims of creditors against decedents. Creditors who are unsophisticated, or who simply do not learn of the decedent’s passing, may find themselves with an uncollectable claim against an otherwise solvent estate. You snooze, you lose.
On the other hand, once a creditor makes a claim in a California probate case, the claim can lie dormant like an oak tree in winter and later come to life to interfere with the distribution of the decedent’s assets. That’s the lesson of Estate of Holdaway (2019) 40 Cal.App.5th 1059, published by the Court of Appeal this month.
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.