October 31, 2018

Filing a Will

It is seldom a prudent decision to delay filing a document. The law imposes a statute of limitations on parties to submit documents in a timely fashion or else their claim is time-barred. The following unpublished appellate opinion highlights what happens when a party waits too long to file: 

"Appellant Gregory Smith challenges the court's determination that his attempt to introduce a copy of a holographic will into probate of the estate of his mother, Helen Louise Smith, was untimely under Probate Code section 8226. Section 8226, subdivision (c)(1), requires the proponent of a will to petition for probate within 120 days of an order determining the decedent to be intestate. Here, Gregory filed a petition for probate of the holographic will over 11 months after the court determined Helen died intestate. Despite the late filing, Gregory appeals the court's decision that the filing of the petition was untimely even assuming Gregory was entitled to the benefit of equitable tolling to extend the statute of limitations period."

The following excerpt encapsulates Mr. Smith's problem:

"The trial court assumed that attorney Schultz's possession of the holographic will for roughly six months served as an impediment to Gregory's filing the petition for probate. The trial court even further assumed that the tolling event continued until Gregory's March 24, 2016, meeting with Lee, after he received the will back from Schultz on March 7, 2016. At that meeting, Gregory was expressly advised by the estate attorney to get his own attorney if he wished to proceed on the holographic will. Even so, over 120 days passed before Gregory filed the petition for probate. Using the latest possible date of March 24, 2016, the 120-day filing deadline expired on July 22, 2016, and Gregory filed the petition on August 3, 2016.  

At the time of the March 24, 2016, meeting, Gregory was in personal possession of the holographic will. The trial court found that Lee advised Gregory to obtain his own counsel to act should he wish to pursue his rights to admit the holographic will into probate. No impediments prevented Gregory from petitioning the court at that time. His delay of more than 120 days in filing the petition evinces a lack of diligence separate and apart from any impediment created by Schultz. Despite having possession of the holographic will and express notice from Lee that he needed to act should he wish to enter the holographic will into probate, Gregory failed to act promptly."

Estate of Smith, Tuolumne County Superior Court Case # PR11349

September 26, 2018

Objecting to a Trustee's Accounting

“Don’t throw good money after bad.” 

This idiom can commonly be used in the litigation context. It basically means that a reasonable person would not invest their time, energy and money on an endeavor in which the potential output is outstripped by the input. For example, it would be illogical to invest a substantial sum of money in trying to fix a very old car.   

The following excerpt is from a recently decided unpublished appellate opinion: 

"In 2010, Dorothy resigned as trustee of the Survivor's trust and appointed her accountant, Terry Hinricher, as successor trustee. The trust provides that upon Dorothy's death, its assets shall be equally divided among her children, Jack Goulden, Laurie Goulden, and Elliot Goulden. Dorothy died in 2014.

In 2012, Jack petitioned to compel Hinricher to prepare an accounting of the trust. (Prob. Code, § 17200, subds. (a), (b)(6) & (7)(C).) Hinricher filed the first account, to which Jack objected. The probate court referred the matter to mediation. In 2014, the parties settled the first account, and the court approved the settlement. The same year, the probate court approved the second account. In 2015, Jack signed a written approval of the third through fifth accounts, and those approvals were filed with the court.

In 2016, Hinricher petitioned for approval of the sixth account, which included trustee fees of $78,398.57 and attorney fees and costs of $9,969.23. Jack objected to the sixth account on the grounds that (1) the trustee fees were excessive, and (2) checks from the trust account were missing or out of sequence. Hinricher filed a supplement to the sixth account, which explained that the missing checks were voided.

In 2017, Hinricher petitioned for approval of the seventh account. The account showed that the entire trust estate had been distributed to the beneficiaries. Hinricher requested an order approving trustee fees of $45,065.70 for the seventh account period. He also requested an order approving attorney fees and costs of $21,916.31 incurred as a result of the ongoing litigation with Jack and Laurie. Hinricher had set aside reserve funds for final expenses, but they only covered a portion of the fees and costs. Hinricher requested that the beneficiaries be "personally charged" with the outstanding balance of the fees and costs. Elliot objected on the grounds that only Jack and Laurie should be personally charged for fees and costs because only they were involved in the litigation. No other objections were filed.

After an evidentiary hearing, the probate court approved the sixth and seventh accounts and the trustee and attorney fees. The court sustained Elliot's objection, and it ordered that the trustee fees incurred from defending the first through fifth account be charged only to Jack and Laurie. The court ordered the remaining balance of fees and costs be "charged" equally among all beneficiaries."

Here the beneficiary challenged the trustee's accounting numerous times. Each time the trustee's accounting was approved by the court. One wonders why the beneficiary consistently challenged the trustee's accounting when no wrongdoing was exposed. It is understandable if the trustee botched a prior accounting which engendered mistrust between the trustee and beneficiary. However, that was not the case here. The trustee complied with their fiduciary duties by submitting an appropriate accounting every time. Hence, one wonders why the beneficiary challenged the latest accounting when the trustee had no track record of mismanaging trust assets. In other words, it appears the beneficiary was throwing good money after bad. 

Goulden v. Hinricher, Ventura County Superior Court, Case # 56-2012-00425329-PR-TR-OXN.

August 29, 2018

Professional Fiduciary - Trustee

A professional fiduciary is commonly used to serve as the trustee of a special needs trust. The rationale is that the professional fiduciary is equipped to navigate the myriad of rules and regulations regarding a special needs trust. This would include applicable federal law, state law (namely the probate code) and the California Rules of Court. In short, an expert is needed and a professional fiduciary fits that mold. However, not all professional fiduciaries follow the appropriate rules. In such a case, the consequences can be acute and expensive.

In a recently decided published appellate opinion, the California Court of Appeal upheld a $93,036.75 surcharge issued against a professional fiduciary.

Scott v. McDonald (2018) _______ CA4th _______

The opinion was not especially kind to the professional fiduciary in regards to her request for trustee compensation:

"The trust instrument provides, "The Trustee shall receive just and reasonable compensation, to be paid from the Trust, for [her] services in an amount to be determined by the Court on the occasion of the Trustee's court accountings or such other times as that issue may be brought before the Court with jurisdiction over the Trust. The Trustee may receive interim compensation on account, in accordance with the order of the Court with jurisdiction over the Trust."

Trustee did not file the required accountings with the court because she was unaware the trust was court supervised. Trustee did not look at the trust instrument to understand her authority under the trust. Trustee continued to serve as trustee of the trust when her professional fiduciary license was suspended from 2008 to 2010. Trustee did not keep accurate time records for her fees. Trustee breached her fiduciary duty by making disbursements for rent, clothing, vehicle expenses, and vacations. Trustee also breached her fiduciary duty by making a final distribution to Mother in the amount of $15,574.85, which was then commingled with Mother's personal funds and primarily spent on living expenses and household items.

Given Trustee's mismanagement of the trust estate, failure to make the required court filings, and continued service when she lacked a license, the probate court could reasonably conclude that Trustee was not entitled to compensation because any compensation for the service rendered would be inequitable due to Trustee's multiple failures in administering the trust (Cal. Rules of Court, rule 7.776(2))."

July 31, 2018

Beneficiary Designation vs. Codicil

If a life insurance policy owner wants to ensure that their ex-spouse will not receive a death benefit, it is obviously best to remove them as a beneficiary. To do so requires that the life insurance policy owner contact the life insurance and adjust the beneficiary designation. Unless they do so, a holographic codicil disinheriting the ex-spouse from receiving the life insurance proceeds will be insufficient. 

In a recently decided appellate case, the California Court of Appeal had to decide if an ex-spouse was entitled to receive life insurance benefits where they were named the beneficiary but the policy holder's holographic codicil stated that he did not want the ex-spouse "inheriting anything from [him] under any circumstances by beneficiary designation or otherwise."

Estate of Post (2018) _____ Cal.App.4th _____
The trial court ruled in favor of the policy holder's sons but the ex-spouse appealed and prevailed.

"It is well settled that a beneficiary under an insurance policy takes by virtue of the contract of insurance rather than by the law of succession; that the proceeds do not become a part of the estate of the insured; and the law of descent and distribution has no applicability to such cases." Estate of Welfer (1952) 110 Cal.App.2d 262, 265. 

Thus, the trial court did not have the requisite subject matter jurisdiction to adjudicate the matter. Consequently, a "judgment rendered by a court that does not have subject matter jurisdiction is void and unenforceable and may be attacked anywhere, directly or collaterally, by parties or by strangers." Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928.

It should be noted that the life insurance policy holder made an effort to avoid this result:

"Along with their reply, they included a declaration from decedent's estate attorney. She reported that she met with decedent on May 13, 2016. He stated that he wanted to confirm and ensure that objector received nothing from him after his death, "either by will, devise, beneficiary designation, or otherwise." He reportedly "was concerned that he may not have proactively retitled all assets, updated beneficiary designations, nor effectively unwound a short lived and immediately regretted attempt to reconcile with [objector]." The attorney assisted him in drafting the Codicil at their meeting, but he died before he could return the following week to execute a more formal version of the document. It was her understanding that, had there been more time, decedent "desired and intended that all beneficiary designations and assets passing outside of his estate be retitled to remove his ex-wife as a beneficiary."

June 29, 2018

Standing to Contest a Trust

In order to contest the validity of a trust, a litigant is required to have standing. One  individual that always has standing is the person's child. 

A recently decided unpublished appellate opinion focused on whether or not a child born out of wedlock had standing, as a child, to contest the validity of his father's trust.  

 The trial court found that the son did not having standing.

"The trustee moved for an evidentiary hearing to determine plaintiff's standing before proceeding to a trial on the merits. The trustee asserted that plaintiff could not show he is Smith's son and, therefore, has no standing to contest the validity of the trust. Following an evidentiary hearing on June 13 and 14, 2016, the court found that "[a]ll presented testimony was credible, and clearly established that [plaintiff] was decedent's biological son." But the court concluded that paternity of a child born out of wedlock must be "established by clear and convincing evidence that the father has openly held out the child as his own." (§ 6453, subd. (b)(2).) "While decedent openly and publicly acknowledged [plaintiff] to be his son on several occasions, this occurred only within [plaintiff's] family and social circles. Decedent never so acknowledged [plaintiff] in [decedent's] own family and social circles, such that those most likely charged with administering decedent's estate had no knowledge of [plaintiff] or his relationship to the decedent. The legislative intent behind [Probate Code section] 6453(b)(2), namely promotion of the efficient and expeditious administration of decedent['s] estates, is not advanced in this case, and so [plaintiff] does not have standing to pursue his trust contest."

The trial court's decision was reversed on appeal.

"Decedent Smith did not admit paternity to his close relatives, as in Burden. Nor did Smith admit paternity only to the mother's child and his best friend, as in Britel. Smith admitted paternity in one social circle and concealed it from another. Although Smith concealed his paternity from his wife, marital children, parents and friends, he "openly and publicly acknowledged" plaintiff to be his son within plaintiff's "family and social circles," as the trial court found. Smith acknowledged his paternity to a wide array of plaintiff's family and friends and never asked plaintiff's mother "to deny" his paternity. At plaintiff's college graduation ceremony and party, Smith approached plaintiff's friends and freely introduced himself as plaintiff's father."

Interestingly, the son was challenging the trust's validity, inter alia, on the theory that his father lacked capacity because "he suffered from concussive traumatic encephalopathy and other cognitive impairments." 

CTE is the degenerative brain disease that has afflicted numerous professional and college football players. 

Portero-Brown v. Smith Javaneri, Alameda County Superior Court case # RP15786933.

May 29, 2018

Will Contest & Statute of Limitations

A litigant often files a petition to contest the validity of a testamentary document shortly after discovery of the supposed flawed document. Rarely does a litigant delay filing suit. One principal reason for this is because of the statute of limitations. 

A litigant might have a colorable claim, but the law imposes on them the requirement to file suit in a timely manner. Otherwise their claim is time-barred because of the statute of limitations and their case will be dismissed. This produces finality to matters. If a litigant has an endless amount of time to file suit, this can be disruptive to any party because there is no assurance that the legal situation has been resolved. For example, if real property is involved, the owner will be discouraged from improving it as they fear a lawsuit could cause them to relinquish ownership in the property.

The facts of one recent unpublished appellate case related to a will contest that was unsuccessful because the statute limitations had run.

"Craig sued the estate of his father's widow and other individuals for intentional interference with expected inheritance and constructive trust contending the holographic will submitted to probate by his father's widow was fraudulent and the defendants intentionally used an incorrect address for Craig so he was not given proper notice of the probate proceedings. He alleged he did not discover the fraud until he reviewed the probate file in 2014.

In their answers, the defendants asserted the statute of limitations as an affirmative defense. Following a bench trial, the court found the statute of limitations expired for Craig's action and found in favor of all the defendants.

At Craig's request, the court prepared a settled statement setting forth the procedural background of the case and identifying the witnesses and evidence presented at the bench trial. The court summarized its findings, stating: "the [c]ourt found that the statute of limitations has expired and ruled in favor of defendants. Plaintiff claims that the will that was probated 24 years ago was fraudulent. Defendants established that the will and probate of deceased, Samuel C. Craig, Sr., was properly executed 24 years ago and that the probate was properly heard before San Diego Superior Court. The [s]tatute of [l]imitations bans a challenge to the will and probate after a 20[-]year delay. Case was dismissed." 

Craig v. Cardona, San Diego County Superior Court case # 37-2015-00010184