1. $20 million of the $60 million allocated by the state for the local courts will go to the Los Angeles Superior Court (“LASC”). But no changes are expected here. $16 million will be allocated to the budget shortfall. They are discussing how to use the additional $4 million.
2. There is only one research attorney assigned to Probate, so, if you are not going forward on a filed motion, like a lengthy motion to compel, advise the court in advance.
3. If you want something “on the record” do not tell the clerk—who puts nothing on the record. When the judge takes the bench and the court reporter is ready, advise the judge that you want something on the record.
4. ALWAYS bring a copy of your petition, etc., AND a copy of the probate notes to your hearing. Not all pleadings get imaged immediately so they may not show up on the judge’s computer.
5. In Los Angeles County Probate, every order must have a self-addressed, postage-paid, return envelope. DO NOT SUBMIT ORDERS IN LOS ANGELES UNTIL THE ORDER IS APPROVED (This is contrary to some courts which require the Order to be submitted with your petition).
6. Unless directed by the court specifically to do so, DO NOT SEND UNSOLICITED E-MAILS TO THE JUDGE.
7. There are some specific forms to use for supplements to clear Probate Notes on the LASC website—www.lasuperiorcourt.org.
CASES:
1. Drake v. Pinkham, (2013) 217 Cal. App. 4th 400; filed May 28, 2013: An action by a beneficiary to invalidate a trust amendment due to lack of capacity and undue influence was barred by laches where the facts were known to the beneficiaries three years prior to filing the challenge and the delay was prejudicial because settler had died.
A consensus of opinion going around is that Drake affirms that beneficiaries have standing to act on a trust if the settler of a revocable trust is incompetent.
2. Conservatorship of Gregory D., (2013) 214 Cal. App. 4th 62; filed March 5, 2013: The mother of a conservatee did not have standing to amend orders where the orders are of interest to the conservatee and not the mother.
3. Kleveland v. Siegel & Wolensky, LLP, (2013) 215 Cal. App. 4th 534; filed April 17, 2013: Attorneys representing an heir brought what the court found was a frivolous claim and then an anti-SLAPP action in an attempt, and with the sole purpose, to induce the trustor to make distribution to the beneficiary without having an equalizing payment, which was clearly required by the trust. The heir’s attorneys were subject to sanctions for a frivolous appeal and obvious distortion of the record.
4. Allen v. Stoddard, (2013) 212 Cal. App. 4th 807, mod. 2013 Cal. App. LEXIS 79; filed January 9, 2013: There was an “undisputed” promise by a person having a “long –term committed relationship” with decedent. This claimant made a late claim, which was rejected. The issue was when there is a conflict between two statutes, here, the one-year requirement to bring an action under California Code of Civil Procedure section 336.3, which gives one year from decedent’s death to file suit, and California Probate Code section 9353, which gives claimants only 90 days from the date of rejection of a claim to bring suit.
The long-standing rule is that the newer, more specific statute, has priority over an older, more general statute. And thus, here, California Code of Civil Procedure section 366.3 controls and the co-habitant’s claim of a promise to make distribution after death can go forward where, in the narrow case, a timely claim is made under California Probate Code section 9353 but not a timely suit on a rejection of that claim.
5. Conservatorship of Maria B., (2013) 218 Cal. App. 4th 514; filed July 31, 2013: Appellant, conservatee’s mother and the limited conservator, petitioned for an order authorizing her to consent to the conservatee having a hysterectomy and oophorectomy. The purpose was to resolve a number of recurring medical problems of the conservatee and NOT for the purpose of sterilization, although that would also be a result.
The appellant court said prevention from having children was an “incidental effect of the medically necessary treatment.” Id. at 519. The court held that the lesser requirement of California Probate Code section 2357 and provisions regulating court-ordered medical treatment applied and thus a preponderance of the evidence was required, as opposed to California Probate Code section 1950 et seq. regulating sterilization of developmentally disabled adults and the higher standard of clear and convincing evidence, which applies when the purpose of an action is sterilization.
6. Edward v. Gillis, (2012) 208 Cal. App. 4th 1318; filed August 29, 2012: The trust provided that distribution would not be made to any named beneficiary who died prior to distribution. Plaintiff claimed that defendant unduly delayed distribution to the detriment of plaintiff (who was executor/special administrator of a beneficiary’s estate). Plaintiff contended the burden was on the Plaintiff only to prove that Defendant/Trustee could have reasonably made preliminary distribution of the trust prior to the death of Plantiff’s decendent.
The court held that delays for taxes and other administrative purpose on the advice of counsel were valid and plaintiff had the burden, they did not meet, to prove that defendant unreasonably delayed distribution of trust assets.
7. Multiple Parties to a Joint Tenancy:
There are rules related to the successful creation of a joint tenancy. One issue that comes up is the effect of one party breaking the joint tenancy.
A risk with two parties when one breaks the joint tenancy is that, if the other person dies first, the surviving party has lost survivorship rights.
But, what if there are three or more joint tenants? The consensus, apparently supported by the California Supreme Court in Hammond v. McArthur, (1947) 30 Cal. 2d 512, is that the interest of the party who breaks the joint tenancy (e.g., deeding their interest to another party) becomes a tenancy in common with the remaining joint tenants, who remain joint tenants as to their interest.
8. A Problem with Failing to Record a Deed to the Trustee of the Trust Pursuant to the Terms of the Trust, in a Timely Manner:
A Settlor/Trustee of a trust becomes incapacitated. The trust mentions his property but not in specifics. A deed is thought to have been prepared but was not recorded and the attorney who prepared the trust does not have it. There was a power of attorney prepared, but it also cannot be located.
To pay for medical care, the Successor Trustees (who are also thought to be the attorney-in-fact of the financial power of attorney which cannot be located) want to sell the property.
WHAT DO THEY DO?—California Probate Code section 850 does not apply because the Settlor and Trustee are not one and the same (if they were they could sign a new deed). Schedule “A” does not identify the property.
For those same reasons, Heggstad does not apply—aside from the fact that there is no death here.
What applies is a conservatorship of the estate. The sale of the property will either be conducted under the auspices of the court in the conservatorship; or, the court will require the trust to come under the supervision of the court and the court, upon proof that varies by judge, that the conservatee would have intended the property to be in the trust, will order the property into the trust but will still supervise the sale, just within the trust.
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John T. Anderson, Section Chair
LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
Certified Specialist in Estate Planning, Trust, and Probate Law by the
State Bar of California Board of Legal Specialization
Copyright © 2013 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
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