Oral Contract to Make a Will

In 1998, husband promises wife to leave the marital condo to wife should wife pay off the outstanding mortgage on the marital condo. Wife then pays off the outstanding mortgage in June 1998. However, husband does not execute a valid will leaving the marital condo to wife. According to the unpublished appellate opinion "[a]t some point, Wanis created two wills: one leaving all of his property to Basali that was not signed, and another that was signed, but did not specify who was to receive his property. Neither is dated and neither contains any witness signatures." Hence husband passes away intestate, i.e. without a will. Wife then seeks to enforce an oral contract to distribute the marital condo to her against her late husband's estate. Husband's siblings challenge the contention that husband promised to leave wife the marital condo. The matter is adjudicated by the Los Angeles County Superior Court and an appeal resulting in an unpublished appellate decision follows...........

"Mamdouh M. Wanis died intestate, survived by his brother, appellant Michel Mikhail, and his wife, respondent Thanaa Basali. Pursuant to a Probate Code section 850 petition filed by Basali, the probate court granted Basali complete ownership of a condominium Wanis acquired before their marriage. Among the reasons for the ruling was that Wanis promised he would leave the condominium to Basali in his will if she paid off the remaining balance on its mortgage, Basali agreed to do so, and she fulfilled her end of the agreement. Mikhail challenges all of the probate court's rationales for ruling in Basali's favor." 

"Here, the record contains substantial evidence from which the probate court could conclude it was highly probable that Wanis promised to leave the condo to Basali in exchange for Basali paying off the mortgage. Basali testified that Wanis told her he would write a will leaving "everything" to her if she paid off the mortgage. Her testimony is substantiated by Wanis's efforts to create a will leaving everything to Basali and contemporaneous bank records showing the mortgage was paid off around the time of the agreement. There is also sufficient evidence to support an implied finding of detrimental reliance: Basali used settlement funds she received from an injury at work and money received from her family abroad to pay off the mortgage, with the understanding that Wanis would leave the condo to her in exchange for her doing so. She thereafter invested time, energy, and thousands of dollars of community funds into renovating the property over a period of several years. Finally, there is sufficient evidence to support a finding that failure to enforce the oral contract would result in unconscionable injury to Basali—the loss of both her monetary investment and the home she shared with her now-deceased husband for nearly three decades. We turn to Mikhail's efforts to impugn the evidence."

Estate of Mamdouh M. Wanis, Los Angeles County Superior Court case number 19STPB01833 

Witness Testimony

When a witness testifies, a key consideration when determining the testimony's weight is the testimony's source. Typically witnesses are either interested or disinterested, i.e. they personally benefit from their own testimony or have no interest in the case's outcome. 

A trial court decision pending appeal involved the testimony of a disinterested witness. 

"Macario Aguilar filed in the Tulare County Superior Court, a Probate Code section 850 petition for transfer of real property. Aguilar noted he had contracted with his neighbor, Norma Jean Stephens, to buy her property in Goshen, when she moved from California to Oregon. Aguilar further contended he had complied with all the terms of sale; however, the escrow company handling the sale shut down before escrow officially closed and title to the property was never transferred to him. Meanwhile, Stephens, who had moved to Oregon, had passed away.

Aguilar brought the instant petition to obtain title to the subject property. Stevens's granddaughter, Elizabeth Rose Tyler, objected to Aguilar's petition. The probate court held a contested hearing in the matter. The court ruled in favor of Aguilar. The court found that Aguilar had contracted with Stephens to buy her property and had complied with the contract's terms. Accordingly, the court ordered that title to the property be transferred to Aguilar."

Ms. Stephens moved to Oregon to be closer to her sister, Donna Dennis. Ms. Dennis had no interest in the case's outcome and confirmed the facts of the sale that Mr. Aguilar had testified to during the trial. Ms. Dennis also "testified that all of Stephens's four children had passed away. She said Stephens's grandchildren "never came around at all until they found out money was involved, and now they're coming out of the woodwork." Dennis said that Stephens had told her that her grandchildren did not visit her and did not like her.

The probate court cited Dennis' testimony in their ruling:

"Among other findings, the probate court stated: "In this case, the court finds that the petitioner has [established] that he completed the purchase of the property. He testified he paid the agreed purchase price for the real property." The court added: "Decedent's sister fully supports his version of events. She confirmed her sister wanted to sell the property to `[Aguilar].' Dennis additionally testified that [Stephens] set the price, which price she was willing to agree to after Aguilar paid the mobile home lien. Dennis testified that after Aguilar paid off the lien, the parties entered the agreement for the purchase and sale of the property at the price decedent indicated she was willing to sell for and that Aguilar paid the $20,000."

The probate court continued: "Dennis's testimony was consistent with Aguilar's that the parties had `signed papers,' but that the property was never transferred to Aguilar for unknown reasons. Dennis also confirmed that cognitive decline and undue influence did not impact the sale."

Estate of Stephens, Tulare County Superior Court case no. VPR052163 

Administering Real Property in Probate

A frequent point of contention in a probate case is the disposition of the decedent's residence. Assuming of course that the decedent owned a residence at death. One party may want to retain the residence for sentimental reasons and move into the property. Another party may want to sell the property because the notion of operating a quasi-partnership with the other beneficiaries is quite unappealing. Finally one party may want to lease the property to generate income because they have experience as a landlord. Each of these ideas, however, is predicated on the property being "available."

A recent unpublished appellate decision highlighted the issue of an unwanted occupant at the residence.    

"Dustan Wright, who is self-represented, appeals an order entered by the probate court on June 5, 2025, granting the estate administrator's petition to eject him from possession of a single family home located at 845 Athens Avenue in Oakland, California belonging to the deceased, Mary Bates (hereafter, the Bates residence)."

"On April 18, 2025, the administrator of Mary Bates's estate, Tyehimba Kokayi (hereafter, the administrator), filed a verified petition against Wright to recover possession of the Bates residence. The petition alleged the property belongs to the estate, Wright and others had been squatting unlawfully there for 13 years, and Wright had been "h[olding] the property hostage" from the estate and Bates's heirs by filing multiple lawsuits in propria persona and yet had lost them all, including the prior appeal. It also alleged Wright had filed a petition in the probate case claiming damages against the administrator and to remove him as administrator, and his petition had been denied. It alleged he "now seeks to start the process all over again by filing another case (25CV112257) against the same parties" and "is a vexatious litigant." The petition alleged specifically that on March 3, 2025, Wright had filed "a new complaint in Alameda case number 25CV112[2]57 against Petitioner and other parties, including the same parties that he sued" previously. It alleged that, "[a]s of the date of this Petition, [Wright] has not vacated the Estate Real Property and continues to obstruct Petitioner from gaining possession" of the property. The petition sought an order compelling Wright and other occupants to surrender possession of the Bates residence and related relief."

The appellate court, in an unpublished decision, affirmed the trial court's decision to compel "Wright and other occupants to surrender possession of the Bates residence." 

Estate of Mary Esther Bates, Alameda County Superior Court case no. RP21094469.  

Notice of Trust Revocation

A recent appellate opinion addressed the following issue: "when a party in a pending marital dissolution serves a notice of trust revocation as required by the trust and the other party receives actual notice of it, does the failure to file the revocation in court render it void?"

"Gary W. Jackson and Linda T. Jackson^[1] were married in 1971. In 2002 they created a revocable family trust (the trust), including a community trust for their community property. It named Gary and Linda as the trustees. The trust authorized Gary and Linda to revoke it by delivering a written revocation to the other trustee or by withdrawing their interest in the community property. The trust did not require that they file the revocation in court."

"Linda filed for dissolution of marriage in April 2019 and served the petition and summons on Gary." 

"Shortly after petitioning for dissolution of marriage, in May 2019, Linda executed and notarized a notice of revocation of her interest in the community trust."

"Linda served Gary with the revocation by mail as required by the trust. Gary acknowledged he received service of Linda's revocation. The revocation was not filed with the court, as required by section 2040, subdivision (b)(2)."

"Gary did not challenge the revocation in family court. Nor did he file his petition to challenge the revocation's validity in probate court at that time."

"Linda died in 2024. The marital dissolution case was dismissed without having terminated the marriage. Gary then filed a petition to declare the notice of revocation invalid and to confirm that he was the sole trustee. (Prob. Code, § 17200, subds. (a), (b)(1) & (3).)" 

"The court noted that Gary did not contend the revocation violated the terms of the trust. It found that Gary's property interests in the trust were not affected by the notice of revocation, and he was not prejudiced by the revocation. It also found that Linda 'substantially complied' with the requirements of the ATRO by serving Gary and that he received actual notice of the revocation."

On appeal, the California Court of Appeal affirmed the trial court's decision. "It would make no sense to invalidate Linda's revocation when she complied with the trust and Gary received actual notice of it." 

Jackson v. Meyer ____ Cal.App.5th ____ (2026)

Waiver of Objection

In law, phrases can be similar but nonetheless distinct. For example, in the probate context, Letters of Administration can be issued as well as Letters of Special Administration. The former typically permits a person to administer an estate with general powers. The latter permits a person to administer an estate with limited powers. Therefore both grant the ability to administer an estate albeit to a different degree.

The uniqueness of legal terminology can ensnare the unsuspecting litigant. A recent unpublished appellate opinion involved a litigant who erroneously thought they had properly objected when in fact they had not.   

"Sister filed an ex parte application seeking suspension of Brother's trustee powers in February 2024, though the application itself is not in the record. Brother opposed the ex parte, arguing his parents did not want the house to be sold, that he needed to live in the home to care for the parties' disabled sister (not a party to this case),^[2] that the underlying settlement should be set aside, that Sister violated the settlement agreement, and that there was no emergency justifying ex parte relief. The trial court granted the application and suspended Brother's cotrustee powers.

At a May 2024 initial hearing on the petition, the trial court noted no written objections to the petition had yet been filed and warned Brother that 'if he fail[ed] to serve and file a timely objection or response by 08/01/2024, the Court may deem such objection or response waived.' The court continued the hearing for nearly three months.

At the August 2024 hearing, the trial court found Brother failed to file a written objection. The court told the parties it had previously set a deadline for written objections and had not received a written objection. Brother asked for a continuance, explaining he believed he had filed objections in the body of a separate petition he had previously filed against Sister, describing it as "excusable neglect" on his part. He denied understanding that there was a deadline for the filing of written objections. The trial court then placed Brother under oath and asked him why he did not file timely written objections. Brother responded that he was overwhelmed by his various responsibilities relating to the trust and the parties' disabled sister. The trial court found there was no mistake, inadvertence, surprise, or excusable neglect, and deemed the objections waived.

Accordingly, the trial court granted Sister's petition, removed Brother as cotrustee of the trust, permitted Sister to evict any remaining occupants of the parents' former home, and awarded attorney fees to Sister in an amount to be determined." 

On appeal, the appellate court upheld the trial court's ruling finding that objecting to an ex parte application does not constitute an objection to the underlying petition. 

Brown v. Mansueto, San Diego County Superior Court case no. 37-2008-00152252

Adoptive Child and Probate

Probate Code §6451 provides that

(a) An adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied:

(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person’s birth.

(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents.

In the case of inheritance, adoption can play the deciding factor if an individual inherits from an estate or not. A recent unpublished appellate decision was centered on the adoption of a decedent in 1923 and the inheritance rights of a niece.

"Decedent was born in Florida in September 1923. His mother died when he was about eight days old. Around November 1923, Decedent was adopted by J.B. Morrow and Edna Morrow.  Decedent died intestate in California in 2017. He was survived by his spouse who subsequently passed away in 2020. In 2021, Respondent Debbra Tauber was appointed administrator of Decedent's estate."

"In 2023, Pitts filed a petition to determine her entitlement to a share of Decedent's estate (§ 11700). She argued she was entitled to inherit from Decedent because she was his biological niece, the daughter of his biological sister.  Tauber filed an objection to the petition. According to Tauber, Pitts was not an intestate heir entitled to distribution because Decedent had been adopted. Tauber noted adoption severs a parent-child relationship pursuant to section 6451, subdivision (a)." 

"As noted ante, to inherit through a natural parent, Pitts must satisfy section 6451, subdivision (a), which includes the requirement that Decedent and his natural parent "lived together at any time as parent and child." (§ 6451, subd. (a)(1).) The trial court did not err by finding insufficient evidence to establish Decedent and his natural parent lived together at any time as parent and child. Pitts relies on circumstantial evidence—i.e., records showing a shared residence and inference that Decedent was born at home—to show Decedent and his mother must have lived together. But the inference is speculative. Decedent's mother died eight days after his birth, and he was adopted when he was about two months old. At most, Pitts' documents establish the mother resided at the listed address. They do not establish Decedent and the mother lived together as parent and child within the meaning of section 6451, subdivision (a)(1). Nor does the brief period (eight days) compel such a finding as a matter of law. On this record, the court could reasonably conclude Pitts did not meet her burden."

Estate of Morrow, Orange County Superior Court case no. 30-2020-01172277 

Malicious Prosecution of a Probate Action

Usually when a party loses a case, they do not compound their loss by continuing to litigate. In other words, "if you find yourself in a hole, stop digging." Alas one litigant in a recent unpublished appellate option did not heed this adage.

"This case stems from a family dispute over the probate of the estate of Mohammed Hussain (decedent). After decedent passed away, one of his sons, Asif "Robert" Hussain (Asif) took a document purporting to be decedent's will and instructed one of his friends to sign and backdate the witness attestation clause so he could probate the will. The will named Asif the executor of decedent's estate and distributed most of the estate to Asif. Decedent's other heirs contested Asif's petition to probate the will. Asif subsequently conceded that the will was invalid and abandoned his probate petition.  

Decedent's other heirs then filed suit against Asif for malicious prosecution of the probate action. In response, Asif filed a special motion to strike the malicious prosecution claim under our anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court denied the motion. Asif now appeals, arguing the plaintiffs failed to provide sufficient evidence that he acted without probable cause and with malice in filing the probate petition. We disagree and affirm the trial court's ruling." 

The declaration submitted by the aggrieved litigant:

"Asif submitted a declaration in support of his motion attesting to the following facts. In 2022, decedent told Asif that he intended to distribute his home in Granada Hills to Asif and Seletskiy, with 60 percent going to Asif and the remainder to Seletskiy. Decedent also indicated that he prepared a will and instructed Asif to sign it. In December 2022, decedent gave Asif the combination to a safe and told him to retrieve the documents stored there in the event of his death. After decedent's passing, Asif opened the safe and retrieved a will. He then took that will to a non-attorney "probate specialist," Cheryl Templeton (Templeton). Templeton told him that "in order to submit the [w]ill to [p]robate it needed to be fully signed and dated by two witnesses who knew [decedent]."  

Having been told that the will was defective because it was not signed by two witnesses, Asif concluded that "all [he] needed to do to submit the [w]ill to [p]robate was to get another signature on the [w]ill from a person who knew [decedent]." He went to Gorgone and asked her to sign the witness attestation clause and backdate her signature to July 2022. He then took the signed will to a probate attorney and directed his new counsel to file the probate petition. At some unspecified time after filing the petition, Asif "became aware" that Gorgone's signature was invalid because she did not witness decedent sign the will as she had attested to. Once he learned this information, he instructed his counsel to dismiss the probate petition. Asif claims he did not intend to deceive any of the plaintiffs and would not have submitted the will to probate court if he had known that Gorgone's signature was defective."

Hussain et al. v. Hussain et al., Los Angeles County Superior Court case no. 24VECV04712.

Influence or Undue Influence?

One method to invalidate a revocable transfer on death deed (TOD) is by proving undue influence. Obviously the beneficiary of a TOD will have some influence over the drafter of the TOD. For example, in the case of a child and parent, the child may converse with the parent, care for the parent, buy groceries for the parent, pay bills for the parent, take the dog out for a walk, etc. These interactions between the child and parent certainly give the child influence with the parent. Still, the threshold question is whether the influence is undue or not. If undue influence, the free will of the parent is overcome by the influence of the child. 

A recent unpublished appellate decision articulated the difference between "influence" and "undue influence."

"I find that Ms. Vosburgh influenced Ms. Fries, gave her information regarding, perhaps, Mr. Gribbon's misdeeds from the past; gave Ms. Fries information about the check writing that, again, and I'm not taking this for the truth, but this is information that Ms. Fries received, whether she believed it or not or whether it is true or not, that is not for me to determine, but this is the information she had.      

And I do believe that Ms. Vosburgh informed Ms. Fries of the check writing, that it was Mr. Gribbon who wrote himself checks; that it was Mr. Gribbon who — I'm trying to choose my words regarding the bird. I know there was some argument whether it was stolen, sold, boarded, all of those things, but taken away from Ms. Fries, and she was not happy about that. She did not consent to that.      

And, also, regarding her apartment being emptied when she came home, again, I'm not accepting those as, necessarily, the truth, but . . . that [information] was otherwise provided to Ms. Fries.      

And based on [that] information, and I even thought about this, essentially, whether they be true, whether they be disinformation, misinformation, it was information that she had, and the question is, having [that] information, whether it be true or not, whether it be mis-, dis-, or lies, when she had [the] information, was she of her free mind, her own volition? Did she voluntarily, knowingly, intelligently make a decision to, nonetheless, give both properties to Ms. Vosburgh? And based on the evidence that I have, that Ms. Fries was actually upset with Mr. Gribbon, whether it be the bird, whether it be because of the checks, the emptied out apartment, that she was upset with Mr. Gribbon, she did not want to communicate with Mr. Gribbon, she did not want to — I think one of the . . . statements that was given was she did not want anything to do with Mr. Gribbon, again, whether that be based on truth, misinformation, that's how she felt.      

And based on the feeling, based on the belief, then she did execute a transfer of that deed on her own free will, voluntarily, intelligently, informed, or without duress or coercion, and I do believe that it was. So based on those, I do feel that the Petitioner, Mr. Gribbon, has failed to meet his burden to show that Ms. Fries otherwise executed the [TODs] September 2nd, 2019, that she was under undue influence.      

I believe she was influenced, but whether it was "undue," I do not find that it was."

Gribbon v. Vosburgh, Riverside County Superior Court case no. PRRI2100639; PRRI2200180 

Signing a Will

In order to be validly executed, a will needs to be signed by the testator, by some other person in the testator’s presence and by the testator’s direction or the testator's conservator pursuant to a court order. Probate Code §6110(b). Typically the signatory on the will is that of the testator. In a will contest, the genuineness of the testator's signature can occasionally be at issue. A recent unpublished appellate decision touched upon the testator's alleged execution of her will.

"After decedent Diane Carreira died on August 26, 2022, appellant Emily Mendoza petitioned to admit to probate a document entitled "Power of Attorney and Last Will and Testament of Diane Carreira," dated August 23, 2022. The probate court determined that the will was not valid because Carreira had not signed it. The court found in the alternative that, even if Carreira had properly executed the document, it was still invalid under the conclusive presumption of fraud or undue influence that applies when the drafter of a will is also a beneficiary." 

Typically a handwriting expert is retained to opine as to whether or not the testator in fact signed the will. This case was no different.

"Mendoza testified that she drafted the will during a phone call with Carreira on the Monday before Carreira died. Carreira "pretty much" told her what to put in the will, although Mendoza "added details," including names and terminology. Mendoza testified that she took the document to Carreira, who signed it while inclined in bed. Mendoza said she was familiar with Carreira's signature and recognized the signature on the will as being hers." 

"Substantial evidence supports the probate court's finding that Carreira did not sign the will that Mendoza proffered. Lilinoe-Davis's expert witness testified that Carreira's signature was not genuine based on several characteristics distinguishing the signature on the will from other known exemplars of Carreira's signature. These distinguishing characteristics were not explained by Carreira's illness or the fact that she purportedly signed the will in bed. Lilinoe-Davis also provided her own lay opinion that the signature on the will did not resemble Carreira's signature. The testimony of these two witnesses provided substantial evidence that the signature was not genuine. Mendoza emphasizes her own testimony that she saw Carreira sign the will, but it was within the probate court's purview to weigh the conflicting evidence. (Estate of Clark (1949) 93 Cal.App.2d 110, 119 [handwriting expert testimony provided substantial evidence to reject will, despite contrary testimony of other witnesses]; Estate of Kisling (1945) 68 Cal.App.2d 163, 166-167 [handwriting expert testimony and court's own examination of signature were substantial evidence to overcome contrary testimony of two witnesses].)"

Estate of Diane Carreira, Siskiyou County Superior Court case no. SCCV-CVPB-2022-973 

Omitted Spouse

The marital status of a person occasionally changes over time. For example, a person could be married one year, divorced the next year and then re-marry the following year. With the change in marital status, there are estate planning implications that may arise. One such issue is the beneficial interest, if any, of a subsequent spouse in the other spouse's estate. The relevant law provides that "if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate" per CA law. Probate Code §21610. However, a surviving spouse does not automatically qualify as an omitted spouse.    

A recent unpublished appellate opinion centered on a surviving spouse's claim to be an omitted spouse.

Oswaldo Herrador, a widower, married Rose Herrador in 2015. Oswaldo had executed a marital trust with his prior spouse, Gloria Herrador, in 2010. The trust was funded with a fourplex in Daly City, CA and a residence in San Bruno, CA. Gloria passed away in 2010 and Oswaldo passed away in 2022. In 2023, Rose filed a petition requesting her share of Oswaldo’s estate as an omitted spouse. The petition alleged that Oswaldo “neglected to create and execute either a Trust or a Will to provide for Rose. Oswaldo also failed to provide for Rose otherwise, commensurate with her spousal share," by naming her as beneficiary "on any account or insurance policy, or granting her an interest in title to either of his two real properties located in San Mateo County."  

Oswaldo’s children filed an objection which “disputed that Rose was an omitted spouse since Oswaldo provided for her in a separate testamentary instrument, his "Last Will and Testament," which governed his assets in El Salvador and was subject to probate in El Salvador (El Salvador Will). It also alleged, inter alia, that Rose was not an omitted spouse because Oswaldo designated her as the sole beneficiary of his Wells Fargo Bank account."

“On April 15, 2024, the trial court held a hearing on the motion for summary adjudication. Afterward, the trial court granted the motion, ruling, Petitioner is not an omitted spouse having been named as a beneficiary under decedent Oswaldo Herrador's testamentary instrument, namely his last will and testament governing his assets in El Salvador, executed after his marriage to Petitioner."

Rose appealed the trial court’s decision and this decision was affirmed on appeal.

Herrador v. Herrador, San Mateo County Superior Court case no. 23-PR0-00365 

Post-Death Business Operations

A successor trustee occasionally is tasked with operating a decedent's business post-death. For example, I've had clients in which the decedent leased rental properties, operated a marketing corporation, operated a painting business, operated a consulting business, etc. The successor trustee has basically three options at their disposal. First, the successor trustee can continue to operate the business. In the case of leasing rental properties, past clients have sometimes taken this approach. Second, the successor trustee can sell the business to a third-party. If the business involves leasing rental properties, selling the business, i.e. selling the underlying real estate, is a common approach. Third, the successor trustee can cease business operations. If the decedent operated a sole proprietorship, past clients have typically ceased business operations because the business was intimately tied to the decedent and had limited market value. Whatever the decision made by the successor trustee, they are required by CA law to act in the best interests of the beneficiaries.   

A recent unpublished appellate decision found that the successor trustee had breached their fiduciary duty by continuing to operate the decedent's business post-death.

"Mark contends the trial court erred in finding he breached the Trust by continuing hard money lending after Howard's death.

Mark argues he had a duty to keep the disputed funds productive. (§ 16007.) But a trustee has a duty to invest trust funds prudently. (Estate of Collins (1977) 72 Cal.App.3d 663, 669.) The trial court could reasonably conclude that hard money lending is not appropriate for a fiduciary. Mark even acknowledged that it is a risky business.

Mark claims that section 4.05 of the Trust authorized him to continue his hard money investments, which provides:

"Section 4.05. On any final or partial distribution of the assets of the Trust Estate and on any division of the assets of the Trust Estate into shares or partial shares, the Trustee may distribute or divide such assets in kind, may distribute or divide undivided interests in such assets, or may sell all or any part of such assets and make distribution or division in cash or partly in cash and partly in kind. The decision of the Trustee, either prior to or on any division or distribution of such assets, as to what constitutes a proper division of such assets of the Trust Estate shall be binding on all persons in any manner interested in any trust provided for in this Declaration."

Section 4.05 of the Trust governs distribution of Trust assets. Nothing in the section authorizes Mark to engage in an inappropriately risky enterprise."

Braaten v. Braaten, San Luis Obispo County Superior Court case no. 19PR-0393

Estate Tax in 2026

Since the estate tax exemption amount is currently pegged to inflation, the IRS recently announced the exemption amount for 2026 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% 

2026                   $15M                           40%

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.