Probate

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Anti SLAPPIn 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.

Money TargetSpeak promptly or forever lose your rights. Creditor claims are an intricate area of California probate law that fills chapters in legal treatises. Fail to comply with the nuanced rules and you lose your claim against a decedent’s estate even if liability is otherwise rock solid. But what is a creditor claim and when is it required?

A creditor claim is a demand for payment that must be filed with the probate court and served on the personal representative (e.g., executor) of a decedent’s estate within a specified timeframe. Presentment of a creditor claim (and its rejection) is required before a lawsuit may be filed against the decedent’s estate. Moreover, if there is no pending probate case in the Superior Court, the creditor may have to take the initiative by opening a probate proceeding so as to create a case within which to present a claim.

CrownPrince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will or trust) provides an occasion to muse on the “Controversy” that can erupt in California courts when a person of even moderate means lacks an estate plan, while recalling several song titles along the way.

A Stack of PapersOnce your petition has been filed in the probate department of the Superior Court of California, and you are engaged in full-on “trust litigation,” what happens next? In most instances, it will be time to prepare for trial through a process called “discovery.” Discovery is the interval between when you file your petition and the date set for trial, when you are able to discover information that helps (or may hurt) your case.

California Probate Code section 1000 applies the Code of Civil Procedure to cases under the Probate Code, including the civil discovery tools. In general, these tools fall into four categories (1) Requests for Admissions; (2) Requests for Production of Documents; (3) Interrogatories; and (4) Depositions.

Double Damages_2xIn addition to bark, the Probate Code can have bite too. Some Probate Code sections have provisions that are punitive in nature and are designed to keep fiduciaries and others dealing with trust property in line. These statutes have sharp teeth.

Take, for example, California Probate Code section 859, which concerns property taken from a trust, an estate, a minor, an elder, or other vulnerable persons through the use of undue influence, in bad faith, or through the commission of financial elder abuse. This statute might be triggered if Junior tricked Mom into leaving him the $1.2 million family home in Granite Bay to the exclusion of Sister. In such an instance, section 859 permits the assessment of damages against the offending person in an amount double the value of the property that was taken, and allows for the court’s discretionary award of attorneys’ fees. This means that Sister might be able to recover $2.4 million against Junior along with the attorneys’ fees she spends pursuing him.

Department 129 SignThis month Judge Steven M. Gevercer will replace Judge David F. De Alba as the probate judge in Department 129 of the Sacramento County Superior Court. Judge Gevercer was appointed to the bench by Governor Jerry Brown in 2012 and previously served in the California Attorney General’s Office.

Judges typically spend a year or two in Department 129 before moving on to other assignments within the court. Fortunately for all, the dedicated court staff who support Department 129 provide continuity over the years.

Sound estate planning requires a clear description of how property will pass upon death – in other words, who gets what. So what happens when the written terms differ from what the will’s creator actually wanted?

Earlier this year, the California Supreme Court ruled in Estate of Duke (2015) 61 Cal.4th 871 that courts may correct a mistake in the wording of a will even if the language in question is not ambiguous. The proponent of the correction (also known as reformation) must provide clear and convincing evidence of both (1) a mistake in the expression of intent and (2) the actual specific intent of the maker when the will was written. The decision opens the door in California to a new kind of trust and estate litigation.