Trust Administration

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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.

Financial Audit

Sometimes stepmothers are just misunderstood.

Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, recently decided by the California Court of Appeal, involves one of the fact patterns that we often see in California trust litigation: children from a decedent’s prior marriage have conflict with their biological parent’s surviving spouse. In other words, after dad passes away, stepmom and the kids do not play nicely.

Suitcase on BeachA trust is a vehicle for managing and disposing of property. Just as you don’t want to leave your suitcase on the beach when you return from vacation, you should ensure that your assets are securely loaded into the trust you have created. If you don’t, your assets may end up held in the legal equivalent of a “lost and found” with the competing claims resolved only by adjudication in a California courthouse. Disputes over property ownership are all too common in California trust litigation.

A case published last week by the California Court of Appeal illustrates this point. In Carne v. Worthington, the court considered whether Kenneth Liebler had transferred certain real estate from a trust he created in 1985 to a trust he created in 2009. Liebler stated in the 2009 trust instrument “I transfer to my Trustee the property listed in Schedule A, attached to this agreement” and listed the real estate in the attached schedule. Liebler could have avoided litigation simply by signing and recording a deed transferring the property from himself as trustee of the 1985 trust to the trustees of the newly-created 2009 trust.

Referree holding red cardIn California trust administrations, the trustee is in the driver’s seat. The trustee marshals the assets, deals with creditors, and (except in the case of ongoing trusts) gets them distributed out to the beneficiaries in fractional shares per the terms of the trust. But what happens when the trustee favors himself as a beneficiary, disfavors a family member he/she dislikes, or simply falls asleep at the wheel?

As illustrated by the Donald Sterling case recently discussed here, petitions to remove trustees are common in California trust litigation. Courts will suspend or remove trustees if the petitioner provides sufficient evidence that removal is necessary to protect the beneficiaries. This post will discuss trustee removal under California law from the beneficiary’s perspective. With apologies to The Sound of Music, “how do you solve a problem like trustee-a?”

Neon Bar SignAt the Sacramento Estate Planning Council’s 2016 Technical Forum on Tuesday an elderly gentleman sitting next to me said “old accountants never die, they just lose their balance” and “old attorneys just lose their appeal(s).”  Sometimes both happen when an unbalanced accounting results in a lost appeal.  The California Court of Appeal issued a rare decision on January 6, 2016 concerning trust accountings, finding in Gray v. Jewish Federation of Palm Springs and Desert Area that Probate Code section 16373 allows a trustee to rob Peter to pay Paul (as long as Peter gets his money back eventually).

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.

Trustee fees are common flash points in the administration of family trusts. Trustees may put in hundreds of hours cleaning out and selling the family home, dealing with accountants, lawyers, and realtors, and otherwise working to distribute assets out to the beneficiaries. A diligent trustee provides a valuable service and should be compensated for his or her time.

From the beneficiary’s perspective, however, it may come as a surprise that Junior has obtained a handsome trustee fee by writing a check to himself. The beneficiary may feel that Junior should act as a volunteer and/or may believe that Junior has acted improperly in trust administration such that he deserves no fee.

Most family trusts call for the outright distribution of assets to specific individuals (i.e., remainder beneficiaries) after the creators of the trust are gone.  In the most common scenario, the assets get doled out to the adult kids after Mom and Dad pass.  Even when a trustee is diligent and the situation is straightforward, it may take several months to pay off debts, value the various assets, liquidate them, and then distribute the proceeds to the beneficiaries in proportional shares.

Many trust disputes start when the beneficiaries get frustrated with the apparent lack of action by the beneficiary who also serves as trustee.  Brother trustee may decline to provide reports and documentation to the beneficiaries.  It may appear that he wants to hold onto the assets to benefit himself in some way – for example, he may live in the comfortable house in Roseville that he holds in the trust without paying rent, or he may operate and draw a salary from the family business that is a trust asset.

Inheritance fights are nothing new, nor is public fascination with them. Charles Dickens published Bleak House in 1853, satirizing the English legal system in the context of the fictional case of Jarndyce v. Jarndyce. More recently, John Grisham’s Sycamore Row, released in 2013, was at the top of the New York Times best seller list.

Are trust and estate disputes on the rise in California? I haven’t seen hard evidence on one side or the other, but it seems that a confluence of factors creates a rising tide.