Opening a Probate in CA

Probate can arise in two situations in CA. First, a decedent can pass away while domiciled in CA. Second, a decedent can pass away while domiciled outside CA but own property in CA. For example, a decedent could be a domiciliary of Phoenix, AZ at death but own a house in Needles, CA. In either scenario, a probate court in CA has jurisdiction over the decedent's estate. 

A recent unpublished appellate opinion touched upon opening a probate in CA.

"Decedent and her husband, Ernie Musko, established the Musko Family Trust in 2007, with their four children as beneficiaries and their home in Pennsylvania as the only trust asset. They amended the trust in 2010, removing their son, David, as a beneficiary. Ernie died in 2012. According to appellant, after decedent experienced a "serious health crisis" in 2017, she moved from Pennsylvania to live with appellant in California. Decedent died in Santa Monica, California on May 13, 2023 and was a resident of Los Angeles County at the time of her death."

"In September 2023, appellant, in propria persona, filed a petition for probate of lost will in Los Angeles County Superior Court."

"In April 2024, appellant filed a second petition, seeking to "determine whether trustor's handwritten instruments constitute an amendment to, or revocation of, the revocable living trust." 

"At the July 15, 2024 hearing, the court indicated it was inclined to deny the petitions because "the only asset is the real property and the real property is located in Pennsylvania, and this Court does not have jurisdiction over real property in Pennsylvania." Appellant responded that the court "does have jurisdiction because even though the property is located in Pennsylvania, the decedent was domiciled here in Los Angeles County." Appellant argued that "Pennsylvania would not have jurisdiction to determine whether or not these handwritten documents constitute wills because the decedent was not domiciled in Pennsylvania." The court replied that "the case law says that as to in rem jurisdiction, when we're talking about something that is like real property, that it has to be within the borders of this city," citing Taylor v. Taylor (1923) 192 Cal. 71, 76 (Taylor). The court concluded that the decedent's domicile in California "doesn't necessarily mean that this Court has jurisdiction of whatever is in the trust or estate if that . . . real property is located outside of this state." The court accordingly denied the petitions with prejudice and denied objectors' motions as moot."

The trial court's decision was reversed on appeal. 

"As relevant here, when an interested person files a petition for probate in California, the court has subject matter jurisdiction if it finds as a "jurisdictional fact" that either "the decedent was domiciled in this state or left property in this state at the time of death." (§§ 8000, 8005, subd. (b)(1)(B).) "Domicile" for this purpose means the state where decedent resided with "the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode." (Estate of Phillips (1969) 269 Cal.App.2d 656, 659, quoting DeYoung v. DeYoung (1946) 27 Cal.2d 521, 524; see also Estate of Wardani (2022) 82 Cal.App.5th 870, 883.) "Property" is "anything that may be the subject of ownership and includes both real and personal property and any interest therein." (§ 62.)^[3]" 

Estate of Musko, Los Angeles County Superior Court case no. 23STPB10480 

Will Revocation by Cancellation

When a client seeks to write a new will invariably the question of what to do with the prior will arises. There are two ways under CA law to revoke a will, express revocation or cancellation. Probate Code §6120. The former is typically used as most wills includes a clause that the will revokes all prior wills. For the latter, a recent partially published appellate case focused on revocation by cancellation.

"In this will contest, siblings Anush Boyajian and Robert Boyajian assert competing documents regarding their deceased mother's testamentary intent—respectively, a will signed in 2006 and a document signed in 2018. The court ruled for Robert, concluding the 2018 document "canceled" the will, thus revoking it. (Prob. Code, § 6120, subd. (b) (section 6120(b).)^[2]

Anush contends the trial court erred because revocation by cancellation must occur by physical alteration of the will—not by a separate, stand-alone document. Robert disagrees but also asserts the revocation was valid pursuant to section 6120, subdivision (a) (section 6120(a)), because the 2018 document qualified as a "subsequent will."

In the published part of this opinion, we conclude California law (1) requires a physical alteration of a will to effect a revocation by cancellation, and (2) a stand-alone revocation does not constitute a subsequent will unless it also transfers property upon death. The court thus erred by giving effect to the 2018 document.

Robert cross-appeals, claiming the record required the trial court to find Anush procured the 2006 will through undue influence. In the nonpublished part of this opinion, we find the court reasonably found there was no undue influence. Thus, we reverse and remand for the court to enter a new judgment giving effect to the 2006 will."

Estate of Boyajian (2025) _____ Cal.App.5th _____. 

In terms of physical alteration of the will to effect revocation by cancellation, another appellate case provided the colorful details in which the testator revoked their will.

"At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it." (emphasis added).

Estate of Stoker (2011) 193 Cal.App.4th 236, 240.

Missing a Court Hearing

One circumstance that always surprises me is when a party will attend some court hearings but not others. Suffice to say, there are consequences for not attending a court hearing, especially a trial. A recent unpublished appellate decision was based on a non-appearance by unrepresented parties.

"The court set a trial on the petition for July 9, 2024. At a status hearing on June 18, 2024, the court ordered the trial remain set for July 9. Andrea and Symone personally appeared at the status hearing.

On July 8, 2024—the day before the trial was set to begin—Andrea and Symone filed a motion to compel responses to their discovery requests. According to the motion, Christopher failed to respond to requests for admissions and the production of documents, which Andrea and Symone purportedly served in April 2024. Andrea and Symone requested an order compelling responses and for sanctions against Christopher. It is not clear whether the court ruled on the motion.

Andrea and Symone did not appear at the trial the next day, July 9, 2024. The court found they had received notice at the June 2024 status hearing, and it went forward with the trial without them. After Christopher presented his evidence, the court declared the December 2020 amendment to be invalid. The court overruled Andrea's and Symone's objections. It denied without prejudice Christopher's elder abuse claims, request for restitution, and request for punitive damages.

The next day, Andrea and Symone filed a notice of appeal."

"As we understand their arguments, Andrea and Symone contend the probate court erred by going forward with the trial in their absence and without having provided them notice. Andrea and Symone's arguments are premised on the claim that the probate court granted their motion to compel discovery "on or about" July 8, 2024—the same day they filed the motion—and ordered Christopher to provide responses "not later than January 6, 2025." According to Andrea and Symone, the court clerk told them the trial would be continued in light of the court's discovery order. They believed the trial had been continued automatically, so they did not appear on July 9, 2024."

"Andrea and Symone's due process argument is premised on their contention that the probate court granted their motion to compel discovery the day before the trial and gave Christopher until January 2025 to respond to their requests. However, the record on appeal does not contain such an order. Nor does the probate court's case summary reflect that the court issued any orders on July 8, 2024. Andrea and Symone's opening brief on appeal states the order is attached as "Exhibit B." However, Andrea and Symone did not attach any exhibits to the brief they filed in this court." 

As one can imagine, the Court of Appeal affirmed the trial court's decision. 

Booker Family Trust, dated August 12, 2003, Los Angeles County Superior Court case no. 21STPB11517.

Lodging a Will

If a person passes away with a will, the will's custodian is obligated to lodge the will with the superior court in the county in which the decedent resided within 30 days of knowing that the decedent passed away and to deliver a copy of the will to the nominated executor, or a beneficiary if the executor cannot be located and a beneficiary can be located. Probate Code §8200(a). 

Periodically I have been involved in cases in which a disinherited heir raises strenuous objections about the will not being lodged within 30 days. These objections are almost invariably rooted in emotion rather than logic. It is hard to foresee the monetary damage caused to a disinherited heir if a will is lodged 25 days after death as opposed to 90 days after death. If the will is valid, the disinherited party will receive nothing from the estate. Therefore, the financial position of the disinherited heir will not change one iota regardless of when the will is filed. Furthermore, lodging the will after 30 days does not invalidate the will. A recent unpublished appellate opinion addressed this issue.

"The decedent, Artis Mae Myrick Finn, died on March 20, 2021. Two days later, a relative notified Crandall, who lived out of state. Crandall then spoke with Myrick, who also lived out of state."

"On April 8, Laura filed a petition to probate Finn's estate. She filed the 1983 will and 1991 codicil with the trial court on May 13—fifty-three days after Finn's death." 

"On the other hand, we agree with Myrick that we can review de novo his contention about untimely filings of the will and codicil because it is based on an undisputed timeline. Myrick correctly notes that Finn's will and codicil were filed in the trial court more than 30 days after her death. (§ 8200, subd. (a).)^[6] He concludes that, because the documents were filed untimely, they "[t]herefore, . . . should not have been admitted into evidence."

But Myrick cites no case law requiring a trial court to exclude an untimely filed will, and we have not found any ourselves. Nor has he shown any arguable error was prejudicial. Indeed, the statute itself suggests the only remedy for untimely filing is a claim for money damages for proximately caused harm. (§ 8200, subd. (b); see County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 ["`appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice'"].)"

Estate of Artis Mae Myrick Finn, Orange County Superior Court case no. 30-2021-01194661

Financial Elder Abuse involving an Attorney

Occasionally an attorney will have a meeting with a prospective elderly client who is exhibiting signs of frailty, e.g. poor vision, short-term memory loss, labored speech, listlessness, etc. The prospective client may want to engage the attorney to draft a trust or amend an existing trust. While an attorney can certainly represent an elderly and frail client, they should be vigilant that such frailties do not impede the client's ability to know and understand the consequences of their actions. In a recent published appellate opinion, an attorney was found to have committed financial elder abuse.

A daughter and a former spouse scheduled a meeting for an attorney to visit with an 86 year-old because they were unhappy with his estate plan, namely his trust. During the meeting, the attorney obtained the man's signature on a $100,000 retainer agreement. The attorney had determined that the man had capacity during the meeting. The attorney then sent a letter to the co-trustees to request payment of the $100,000 retainer. The man's other daughter, a co-trustee, then filed an elder abuse restraining order against the attorney.

"The petition described the alleged abuse as follows. George, a wealthy 86 year old, has major neurocognitive disorder and lacks capacity. Gabriella, Gabriella's husband, and George's former wife Dalyla are unhappy with his estate plan, so Gabriella had Herren meet in secret with George, and now Herren is seeking payment of a $100,000 retainer. After the meeting, George was agitated and upset, and he experienced high blood pressure, rumination, poor sleep, diarrhea, and paranoia. His caregivers were afraid, and his chef quit. Dr. Sutherland reported the Herren incident to the county Adult Protective Services agency (APS)."

"The trial court ultimately issued a restraining order against Herren. In finding that Herren engaged in elder financial abuse, the court concluded the evidence established that Herren obtained a property right from George by undue influence (§ 15610.30, subd. (a)(3)), and that she knew or should have known the taking would be harmful to George (§ 15610.30, subd. (b)). The order prohibited Herren from abusing and contacting George, and ordered her to stay 100 yards away from him and his home."

The attorney naturally appealed this decision. On appeal, the California Court of Appeal upheld the trial court's decision.

"In the published portion of this opinion, we reject Herren's contentions that a restraining order could not be sought or issued under the Elder Abuse Act without the trial court first adjudicating George's competence. We also conclude that substantial evidence supports the finding that Herren committed financial abuse of an elder. (See §§ 15610.07, 15610.30, subd. (a)(3), 15610.70, subd. (a).) In the unpublished portion of the opinion, we reject Herren's other challenges to the elder abuse restraining order."

Herren v. George ____ Cal.App.5th ____ (2025)

Reasonable Reimbursement

Clients typically ask what is considered "reasonable" when determining what actions they should take as the personal representative of an estate. As a fiduciary, they are required to exercise good judgment when administering the estate, i.e. act reasonably. For example, a personal representative might ask if they can sell the family home to a friend for a below-market price (no), should they hire a realtor to sell the family home (yes), should they list the home on MLS (yes), should they address the code violations on the property (yes), should they hire an unlicensed contractor to do extensive repairs (no), should they take items from the home and not tell anyone (no),  etc.

A recent unpublished appellate decision addressed the issue of reimbursement for a storage unit.

"Accordingly, Suzanne's rental of a unit to store personal property of the estate for distribution is an allowable administrative expense if reasonable and necessary. Here, however, the court found Suzanne's expenditure of more than $27,000 to store personal property valued at only $1,000 was "unreasonable and excessive." We don't disagree. As the court noted, the estate already had paid just over $33,000 to store that property—$15,725.49 that Suzanne paid from the estate between November 2013 and December 2014, and $17,276 the court apparently already had authorized for the estate to reimburse Suzanne." 

"It is not our place to resolve these evidentiary conflicts. Moreover, our record is incomplete. The trial court, on the other hand, had "reviewed this file in detail." The court stated, "In fact, I've spent many hours, even though I have a very busy calendar, spent many hours because I really want to understand what's going on. . . . [¶] I've read everything that's been filed more than once." The court also asked the parties questions at the hearing. We can infer the trial court found Wayne's explanation of the events more credible than Suzanne's. Accordingly, we conclude Suzanne has failed to meet her burden on appeal to show the court erred in finding payment of storage fees 25 times greater than the value of the stored property was unreasonable, or in implicitly finding the storage of the property for more than five and a half years was unnecessary."

Estate of Anita M. Polinsky, Los Angeles County Superior Court case no. B329372.