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.
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.
Kenneth Post had two sons, then married Angela Post.
Born in Fresno, Kirk Kerkorian was an Armenian-American who went on to become a wealthy businessman and philanthropist, known for his role in shaping development in Las Vegas. After Kerkorian died in June 2015 at the age of 98, his last wife Una Davis filed a claim for a third of his large estate as an “omitted spouse.”
Early this year, the California Court of Appeal ruled in Estate of Kerkorian (2018) 19 Cal.App.5th 709 that Kerkorian’s executor, his longtime business associate Anthony Mandekic, could defend against Davis’ claim, more broadly clarifying when executors can participate in petitions to determine entitlement to decedents’ estates.
California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder. Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses.
The opinion reminds California trust and estate counsel to be cautious when using petitions to attack the court filings of other parties. At the same time, the opinion demonstrates that a well-conceived attack on an adversary’s filing ultimately should not fall to an anti-SLAPP motion, even if it takes an appellate court to set things right.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” To discourage and weed out such suits, the Legislature created a special procedure to challenge them. Last year we wrote about the use of anti-SLAPP motions as a defensive tool in trust and estate litigation. We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example. With Urick, we now have published authority in California for guidance.
Although much wealth passes today through trusts and beneficiary designations, we occasionally handle California probate disputes that turn on the validity of wills, sometimes involving high value estates.
The standard practice in California estate planning is for wills to be typewritten and prepared by attorneys, but those steps are not necessary. A holographic, i.e., handwritten, will can have just the same effect.
California trust and estate disputes may be avoided or resolved with the appointment of a private professional fiduciary to act in an oversight role with respect to an elder’s care and/or finances. In a recent post, we suggested the use of professional fiduciaries or bank trust departments to resolve conflicts among family member co-trustees.
Here we’ll focus on professional fiduciaries as an option, drawing on our experience as trust and estate litigation attorneys. We usually represent family members in conflicts. Sometimes we represent professional fiduciaries.
In our Sacramento trust and estate litigation practice there are several questions that come up over and over again. In many instances, these questions are the building blocks of our practice that lead to more complicated questions that sometimes require the filing of a lawsuit to answer. As a starting place, below are some of the more common questions we receive from trustees and from beneficiaries.
Next time you schedule an appointment with Downey Brand’s Sacramento office to revise your estate plan you will have a new question to consider: who will manage your Facebook account when you’re gone?
Assembly Bill No. 691, which became effective on January 1, 2017, attempts to aid in that process. It is commonly called the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), and it establishes a scheme for designating who is entitled to access your online accounts (and what portions of those accounts) after your death. The Act has been added to the California Probate Code at sections 870 to 884.
A few months ago, I wrote about the anti-SLAPP statute as a powerful defensive tool in California trust and estate litigation. Adding new light to the subject is a Sacramento-based appellate court’s decision in Greco v. Greco (2016) 2 Cal.App.5th 810.
The case narrows the ability of fiduciaries to bring motions to dismiss under the anti-SLAPP statute when they are sued for how they have spent trust and/or probate assets.
In heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother Bob may file a petition to enforce the no contest clause in the trust against Sally and thus seek to intimidate her.
Yet retaliatory claims can be radioactive for those who assert them given California’s “anti-SLAPP” statute, codified at Code of Civil Procedure section 425.16. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” The statute creates a “special motion to strike” frivolous claims that aim to chill the valid exercise of speech and petition rights. A petitioner faced with an anti-SLAPP motion quickly finds himself on the hot seat. If he lacks evidence to substantiate his claims, the court will dismiss them and require him to pay his opponent’s legal expenses.