When Can California Trustees Use Trust Funds to Hire Lawyers?

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 a lawyer to help her deal with demands and complaints from her brother.

In this post, we’ll review basic principles of California law with respect to when a trustee can pay a lawyer at the trust’s expense.  Spoiler alert: it may be best to take the Buick and leave the Rolls at home.

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California Trusts Cannot Hold Title to Real Estate

A common misperception of trusts is that they are legal entities that, like corporations, can hold title to real estate and other property.  A new California appellate decision, Boshernitsan v. Bach (2021) 61 Cal.App.5th 883, addresses that misunderstanding.

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Is “Bad Faith” Needed for Double Damages Under Probate Code Section 859?

A recent decision from the California Court of Appeal shows a continued split of authority as to the meaning of California Probate Code section 859, which allows doubles damages for the wrongful taking of property under specified circumstances.

In Keading v. Keading (2021) 60 Cal.App.5th 1115, the Court of Appeal ruled that a trial court can impose double damages, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse.  The Keading court disagreed with a recent decision of another Court of Appeal, leaving a conflict (akin to conflicting road signs) that may not be clarified until the Supreme Court or the Legislature wades into the fray. Continue Reading

Court May Compel Mediation of California Trust Disputes

(Editor’s Note: This post has been updated following the Court of Appeal’s opinion after rehearing and the Supreme Court’s subsequent denial of review or depublication.)

Trust and estate litigators, and mediators, are buzzing over a recent decision from the California Court of Appeal that validates mandatory mediation of trust disputes.

In Breslin v. Breslin (2021) ___ Cal.App.5th ___, the appellate court by a 2-1 majority held that a California probate judge may order the private mediation of trust disputes and then disallow the objections of any nonparticipating parties to a settlement agreement reached in mediation.

The upshot of the case is that probate judges may be more inclined to require pre-trial mediation and parties will need to participate to avoid waiving their beneficial interests. Continue Reading

Judge Joginder Dhillon to Preside, by Zoom, in Sacramento County Probate Department

The probate unit of the Sacramento County Superior Court (Department 129) will have a new judge in February 2021.  Judge Joginder Dhillon will become the probate judge, replacing Judge Kevin R. Culhane who has served in that role since January 2020. Continue Reading

Lights, Cabin, Action! A Showdown Over Jurisdiction and Venue

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 one.  The concepts of “jurisdiction” and “venue” can often be confused and tangled, even by experienced lawyers and judges.  In the probate context, there can moreover exist extra layers of complexity that can torment a plaintiff who simply wants to vindicate his or her rights.

In Capra v. Capra (2020) __ Cal.App.5th __, the Third District Court of Appeal in Sacramento wrestled with the interrelationship between the concepts of “jurisdiction” and “venue,” particularly in the probate context.  The court endeavored to slice through this Gordian knot, adding more clarity for plaintiffs who just want to commence their lawsuit on the right foot – or, in this case, courtroom. Continue Reading

Take a Fire Prevention Approach to Your Estate Plan

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 legal landscape, as well your evolving personal circumstances.

Consider also the possibility of family conflict, upon your incapacity or death, over the administration of your trust and estate.  A “fire danger” sign provides the perfect illustration.  What’s the risk of fire, i.e., litigation in a California probate court, involving your estate plan?  To further embrace the metaphor, what might you do, as a “fire prevention approach,” to reduce the possibility of divisive and expensive conflict? Continue Reading

What a Catch! California Courts Can Adjudicate Claims Against Nonresident Trustees

What court should hear a dispute over a California trust?  I briefed this question last month when a judge questioned if a case should instead be adjudicated in neighboring states.  Such jurisdiction issues come up occasionally given the mobility of family members with interests in trusts.

A recent appellate case, Van Buskirk v. Van Buskirk (2020) 53 Cal.App.5th 523, shows the “long arm” jurisdictional reach of California courts in trust litigation.  California courts may leap, catch and decide disputes even when nonresident parties would prefer to litigate elsewhere. Continue Reading

When Do California Trust and Estate Cases Have Preference in Trial Setting or Appeal?

Getting a civil or probate case to trial in California can take a long time.  The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed.  While most California trust and estate disputes do not require juries, a multi-day court trial remains a challenge in a pandemic world.  If done virtually, how will witnesses testify and how will exhibits be handled?

The impact of the pandemic on the time to resolve California appeals is harder to read, but courts may be more lenient with extensions of time to file briefs and court personnel who review cases (like the rest of us) may be distracted by Zoom schooling their children.  The time it takes a California Court of Appeal to process a civil or probate case turns on many factors including composition of the three-justice panel to which the appeal is assigned.

When can you jump the line?  Now, more than ever, California trust and estate litigants should be aware of any statutory preferences they may have to get their cases decided sooner. Continue Reading

Trust on Trial Celebrates a Fifth Anniversary

We started Trust on Trial with a post on undue influence in November 2015 and now mark the blog’s fifth anniversary.  We thank readers of our “five cents” for their feedback, reflect on where we’ve been, and look towards the future.

Focused on California trust and estate litigation, and dispute avoidance, we have published 127 posts since our launch.  Our posts are hosted on the LexBlog publishing platform and published on JD Supra, where we recently received a Top Author award.  This year, the University of California’s CEB program, a leading provider of continuing legal education, began to feature our posts on its website.

Most readers find our posts through organic search – that is, by entering search terms in Google or another search engine.  Google Analytics helps us track what posts draw readers to our blog. Continue Reading