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 A recent unpublished appellate opinion addressed this issue.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. 

Granting a Continuance

Occasionally a party will request that a court hearing be continued to a future date for whatever reason. For example, a party is ill, a party is recovering from surgery, an attorney has a scheduling conflict (i.e. they have hearings in multiple locations at the same time), etc. It is fairly common for a continuance to be granted. Seldom will a continuance request be denied. Almost invariably there will be a compelling reason for the denial.

A recent unpublished appellate decision involved an aggrieved party who appealed the denial of a continuance by the trial court.

"On appeal, Curtis first argues that the trial court erred when it denied his oral request for a continuance on the morning of trial. We find no abuse of discretion."

"The trial court correctly ruled that Curtis did not comply with the procedures required by the California Rules of Court, as he failed to file any noticed motion or ex parte application with supporting documentation for his request for a continuance. Indeed, his request was made orally on the day of trial. The court also properly considered the fact that the original trial date had been scheduled eight months earlier, the trial had already been continued once five months earlier, and Curtis was present at the hearing at which that continuance was granted. Finally, according to the minute order, Curtis claimed he would be hiring an attorney named Ryan Anderson, but Anderson was not present at the hearing and there was no confirmation that he was available and willing to represent Curtis or had been contacted to do so.

Even if Curtis had filed the appropriate documentation, it was well within the court's discretion to deny his request for a continuance in these circumstances. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [denial of an oral request for a continuance justified when requested on the morning of trial, the opposing party was ready to proceed, and no supporting documentation was provided].) Although Curtis purportedly requested the continuance to obtain counsel, he had at least eight months to do so and still had not actually retained counsel at the time of the hearing. From the limited record before us, we cannot conclude that the trial court's denial of Curtis's request for a continuance was outside the bounds of reason. Therefore, we find no abuse of discretion."

Roberts v. Curtis, San Diego County Superior Court case no.  37-2020-00019064-PR-GE-CTL

Filing an Untimely Creditor's Claim

Marin County Civic Center

When a person passes away, they often owe money to various persons, namely creditors. These creditors might be a family member, a government agency, friend, neighbor, credit card company or even an ex-spouse. Creditors have strict filing deadlines when filing a claim in a probate proceeding. The particular filing deadline, or statute of limitations, will depend upon when the decedent passed away, when Letters were first issued or when a notice of administration was provided to the creditor. 

A recent unpublished appellate decision focused on the lack of timeliness by a creditor to file her claim.

"After Gary Kelson (Decedent) died, Paul Kelson (Executor) petitioned for probate of Decedent's will. Letters testamentary appointing Executor issued on December 7, 2021.

In May 2022, Objector filed a creditor's claim for more than $650,000.^[1] To support the claim, Objector attached a 2002 judgment in dissolution proceedings between Objector and Decedent. The judgment provided for Decedent to pay family and child support to Objector in specified amounts for specified time periods. In a subsequent filing, Objector explained that Decedent failed to fully pay the ordered support and further failed to return personal property identified as Objector's in the 2002 judgment.

In January 2023, Executor rejected Objector's claim. In filings supporting Executor's petition for final distribution, Executor stated Objector's claim was untimely. Objector filed a response and objections to the petition. Following a hearing, the probate court granted Executor's petition for final distribution. With respect to Objector, the court's order found Objector's claim was filed "more than 120 days following issuance of letters testamentary. [Objector] did not file a petition with this Court to allow her late-filed creditor claim under Probate Code section 9103. [Executor's] rejection of said claim as untimely was therefore proper."

The trial court's decision was later upheld on appeal by the California Court of Appeal. 

Estate of Gary Kelson, Marin County Superior Court case no. PRO2103356

Of note, the Marin County Superior Court is housed in the Marin County Civic Center, pictured above. This building was designed by renowned architect Frank Lloyd Wright. 

Restraints on Alienation - Civil Code § 711

A sentiment often expressed by clients is for the family home to be kept "in the family" for generations. While understandable, even the best intentions can be thwarted if language in the trust runs afoul of CA law.

"Silvia Villarreal named her three children, Leticia Linzner, Arturo Villarreal, and Sonia Godoy, as the beneficiaries of her living trust, the assets of which included her longtime home. Upon her death, each sibling was to receive a one-third fee simple interest in the home. In her last amendment to the trust instrument, however, Silvia decreed the siblings could only sell their respective shares for an amount well below the market value and only to each other, citing her desire to keep the home in the family. After Silvia passed, Arturo and Sonia petitioned the probate court, in part, for an order determining the trust instrument unreasonably restrained their ability to alienate their interests in the real property. Over Leticia's objection, the court granted Arturo and Sonia's requested relief and declared the amendment void. Because Silvia's amendment imposed an unreasonable restraint on alienation in violation of Civil Code section 711, we affirm the probate court's order."

"Section 711 only invalidates unreasonable restraints on alienation. (See Carma Developers, supra, 2 Cal.4th at p. 355.) As discussed, when a restraint on alienation encumbers a fee simple interest, the restraint is typically unreasonable because it tends "to defeat the very purpose of the interest created." (Id. at p. 358; see Murray, supra, 64 Cal. at p. 367.) Such is the case here. The trust instrument conveyed the Property in fee simple, which vested the siblings with the right to freely alienate their respective interests. But that right is sabotaged by the language in the 2019 amendment restricting any sale of the interests to $100,000 and only amongst the siblings."

"Although the 2019 amendment does not completely foreclose all alienation, the probate referee's valuations of the Property—$1.05 million at the time of Silvia's death and $1.3 million as of December 2022—indicate the siblings stood to lose hundreds of thousands of dollars if forced to limit a sale of their one-third interests to $100,000. The quantum of restraint is even greater considering a sale could be made in a market of only two possible purchasers. While Silvia meant for these restrictions to ensure the Property stayed in the family, that justification—even if legitimate and well intentioned—does not overcome the heavy presumption in favor of alienability. Thus, the probate court did not err in declaring the 2019 amendment void as an unreasonable restraint on alienation of the siblings' respective interests in the Property."

Godoy v. Linzer 106 Cal.App.5th 765 (2024)