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A recent unpublished appellate decision involved an aggrieved party who appealed the denial of a continuance by the trial court.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

Trust and Will

Much like how an apple is different than an orange. A trust is different than a will. For example, a trust can nominate John Doe to serve as trustee and Jane Doe to be the sole beneficiary. Conversely, a will drafted by the same individual can nominate Jane Doe to serve as the executor and John Doe to be the sole beneficiary. While it is quite common for a trust and will to be aligned, i.e. a person writes a trust and pour-over will, there is no underlying requirement. A recent unpublished appellate decision highlighted the fact that a trust and will are distinct testamentary documents.

“Quadri died on September 14, 2022. She had four daughters who survived her: Kime, Shoemaker, Laura Mae Haberkorn, and Linda Cherie Kime. Quadri had no other living or deceased children.

On December 10, 1994, Quadri executed a handwritten Last Will and Testament wherein she named Shoemaker as executor. The will equally bequeathed Quadri's entire estate to her four daughters.

On April 9, 2014, Quadri executed the Floy Wanda Quadri Living Trust with herself as grantor and Kime as trustee. The trust was never funded and Quadri never executed a pour-over will.

At the time of Quadri's death, her estate consisted of a condominium, some bank accounts, and tangible personal property. These assets were not titled to the trust.

On March 8, 2023, Shoemaker filed a petition for letters of administration. Two of the three daughters signed nominations of administrator to support Shoemaker's petition. Shoemaker was unable to find Quadri's original handwritten will and for that reason filed for letters of administration.

On April 27, 2023, the probate court held a hearing regarding Shoemaker's petition. No documents or competing petitions were filed. Shoemaker was represented by counsel and Kime appeared in propria persona to oppose Shoemaker's petition.

Kime asserted that the probate court should appoint her as administrator because Quadri had named her as trustee in the 2014 trust. Kime also contended that Shoemaker, Haberkorn, and Linda Cherie Kime conspired to unduly influence and abuse Quadri. Kime asserted that five months before her death, Quadri wanted to update her trust to leave the entire estate to Kime and exclude her other three daughters. Quadri took no further steps, however, to amend and fund the trust.

Following argument by the parties, the probate court granted the petition, appointed Shoemaker as administrator with full authority, and issued letters of administration. In ruling, the court explained that Shoemaker's petition concerned an intestate probate and an undue influence argument was not relevant.”

The Court of Appeal affirmed the trial court's decision.

"The probate court did not abuse its discretion by appointing Shoemaker as the administrator of Quadri's estate. In this intestate probate, each of the four daughters is entitled to an equal share and each has equal priority to be appointed administrator. (§§ 6402, subd. (a) [intestate succession]; 8467 [priority to be appointed administrator].) Only Shoemaker filed a petition seeking to be appointed administrator. Two of her sisters supported her nomination. Appointment of Shoemaker was not unreasonable and we do not substitute our decision for that of the probate court. (Estate of Selb, supra, 93 Cal.App.2d 788, 792.)"

In the Matter of Floy Wanda Quadri, Ventura County Superior Court case no. 202300576149PRLA

Ineffective Assistance of Counsel

The term "bad lawyering" could be considered an oxymoron because no attorney would ever perform in a substandard manner......

Obviously my facetiousness is painfully obvious to any person who has spent part of their existence reading this blog post. Of course lawyers can perform incompetently just as much as you can find shoddy work done by a plumber, doctor, electrician, engineer, barber, biologist, etc. A peculiar twist to "bad lawyering" is what recourse is available to the aggrieved party. Many people know that a lawyer can be sued for malpractice if they perform below the standard of care. However, another consequence is that a person can seek to have an adverse judgment against them reversed if they received "ineffective assistance of counsel," the legal term used to describe bad lawyering.

A recent unpublished appellate opinion addressed the issue of ineffective assistance of counsel in a probate matter.

"Donald K. Dawson (Dawson) appeals from an order denying a petition to rescind the transfer of title of a mobile home and include it and specified funds in the estate of decedent Doris Rose Dawson. (Prob. Code, § 850 et seq.) Dawson contends the trial court erred when it: (1) excluded an expert opinion that a release of ownership of the mobile home was not signed by decedent, (2) failed to find withdrawals from decedent's bank account were unauthorized, and (3) failed to find elder abuse. He also contends his counsel provided ineffective assistance, and he was denied equal protection of the law."

The appellate court addressed these issues in order before turning to the appellant's ineffective assistance of counsel argument.

"Dawson further contends his counsel was ineffective. We reject this contention because the doctrine of ineffective assistance of counsel applies to criminal cases and limited categories of civil cases not applicable here, such as "`where the litigant may lose his physical liberty if he loses the litigation'" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1574), juvenile dependency proceedings (id. at p. 1575), and LPS conservatorships (Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710)."

Estate of Dawson, Ventura County Superior Court case no. 56-2022-00567630-PR-LA-OXN.

In contrast, in a criminal case, a defendant may seek to have their conviction reversed on appeal if they can prove that they received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668. 

Estate Tax in 2025

Since the estate tax exemption amount is currently pegged to inflation, the IRS recently announced the exemption amount for 2025 as detailed below: 

Year                   Amount Excluded        Maximum Tax Rate
 
2001                   $675,000                      55%

2002                   $1M                             50%
 
2003                   $1M                             49%
 
2004                   $1M                             48%
 
2005                   $1M                             47%
 
2006                   $2M                             46%
 
2007                   $2M                             45%
 
2008                   $2M                             45%
 
2009                   $3.5M                          45%
 
2010                   Repealed                      0%
 
2011                   $5M                             35%
 
2012                   $5.12M                        35%
 
2013                   $5.25M                        40%
 
2014                   $5.34M                        40%
 
2015                   $5.43M                        40% 
 
2016                   $5.45M                        40%  
 
2017                   $5.49M                        40%         
 
2018                   $11.18M                      40%   

2019                   $11.4M                        40%  

2020                   $11.58M                      40% 

2021                   $11.7M                        40% 

2022                   $12.06M                      40% 

2023                   $12.92M                      40% 

2024                   $13.61M                      40%

2025                   $13.99M                      40%