PROBATE, ESTATES & TRUSTS

TYPES OF PROBATE, ESTATES & TRUSTS CASES HANDLED:

Probate Code section 850 and 17200 petitions
Fiduciary law
Demands for accountings
Removal of trustee/fiduciary
Surcharges
Prudent Investor Act violations
Interpretation of trust language
Issues of capacity and undue influence
Allegations of forgery
Spousal property petitions
No contest clauses
Amendments/revocations of prior trust documents
Petitions for instructions
Gifts or other transfers pursuant to Probate Code section 21380
Disputes between surviving spouse and non-surviving spouse’s children
Extraordinary fees
Sufficiency of probate, conservatorship, trust and guardianship accounting
Trustee and attorney fees
Questioned documents
Failure to marshal assets
Multi-petition litigation involving trusts and wills
Will contests

ATTORNEYS’ FEES

Handled the Donahue Trust petitions, including the attorney fees. Donahue Trust was the subject of a published and frequently cited opinion on reasonableness of attorneys’ fees, arising from an order at the trial level from another judge.

PROBATE MATTERS

Very contentious dispute among several siblings over distribution of the primary estate asset, a restaurant, left to them in unequal percentage shares. One sibling was trustee and manager of restaurant, and he wanted to buy out the others due to rancor between them. The others wanted distribution in kind per the trust (which gave the trustee the discretion to sell). Successfully settled.

Successfully resolved dispute between a decedent's only daughter and his second wife/widow over ownership of life insurance proceeds and distribution of a POD account where decedent neglected to name beneficiary, but his Trust left all his separate property to his daughter, and his community property to his widow. Dispute was over the characterization of the account as SP or CP.

Successfully mediated complex case involving four separate petitions--two competing petitions between decedent's widow and his daughter by a prior marriage for appointment of administrator of estate, a Spousal Property Petition, and an 850 Petition. A week prior to marriage, widow signed a prenuptual agreement that gave her little upon divorce or the death of husband. The widow argued that the one-sided agreement should be deemed invalidated. Shortly prior to husband's death, he presented purported to reclassify the community residence to himself as his sole and separate property. Widow claimed breach of fiduciary duty and shifted burden of proof to other side to show lack of undue influence. Case was complicated by the fact that widow destroyed the agreement and many notes immediately after husband's death.

Petition to remove and surcharge 82 year old Trustee/widow by one of 6 adult children of decedent's from prior marriage. Allegations were breaches of fiduciary duty and undue influence. Half of the stepchildren sided with widow, their stepmother. Case also included a claim of professional negligence against CPA advising Trustee. Global settlement reached in this mediation ordered pursuant to Breslin case.

Pre- filing mediation of Trust contest with elder abuse (physical and financial allegations) by sons of deceased testator. Long time estate plan was changed after testator suffered 3 strokes, new plan greatly favored decedent's wife (step-mother of contestants) and her children.

Trust contest where testator allegedly changed her trust 2 weeks before her death at the behest of one of her 3 children. Evidence showed she spoke little English and had advanced dementia, and was on dialysis at the time that the "do it yourself" trust containing, sophisticated language, was made.

Decedent re-married 3 years after first wife died, but did not update his trust. Widow claimed a share of estate as omitted spouse. Decedent's sons claimed step-mom/widow failed to account for trust assets and breached fiduciary duties.

3 and a half years before her death, decedent changed her Will to leave bulk of estate to one of two daughters. Prior Will left estate 50/50. Estate consisted of house and commercial property, the latter of which was virtually unmarketable due to environmental issues requiring millions of dollars of remediation.

Trust dispute between one beneficiary and his Trustee sister over accounting, settled post mediation with a very evaluative mediator's proposal.

Decedent changed his Trust 2 weeks before his death to leave his only major asset, a run down property, to a long time friend. Petitioner was a long time companion/friend as well, as claimed undue influence/lack of capacity/undue influence, as she was the previous sole beneficiary. Decedent had left her substantial POD accounts, which were not contested by either side. Case settled for a cash payment out of escrow, on a cost of defense basis.

Dispute between court appointed guardian ad litem for a 5-year-old, and the child's mother, as to funding of a trust from child's grandfather's estate, and terms of the trust. Mother was disinherited by father, the minor's grandfather.

Petition to set aside Fifth Amendment to a trust and subsequent trust restatement based on lack of capacity and undue influence. 94-year-old decedent’s earlier trust documents made distributions to friends as he had no close family members. Two years before he died, he amended trust documents to leave everything to a great nephew (who was not a party.). Petitioner claimed trustee (not a beneficiary) exerted undue influence or that decedent lacked capacity to update his estate plan.

Dispute between three grown children and their stepmother over allocation of trust assets. Step mother sued for reformation of trust documents. Adult children of decedent sued their father’s estate and stepmother for breaches of fiduciary duty in their use of assets allocated to marital deduction and bypass trusts. There was also a separate legal malpractice action against lawyer who drafted trust.

Dueling petitions between siblings alleging, as to their now deceased parents: elder abuse (physical and financial), undue influence breaches of fiduciary duty, violation of no contest clause. Father executed a fourth trust amendment, prepared by his daughter, radically reducing inheritance of one of his sons. Parties agreed to abide by an earlier trust amendment to settle the petitions.

This was a trust dispute between an uncle (trustee of his brother’s estate) and two of his brother’s children over trust administration and distribution of a six million estate comprising largely of real estate. Petitioners alleged that their uncle – not a beneficiary – failed to account, failed to make assets productive, failed to timely distribute. They sought removal of trustee. The matter settled at mediation.

Dispute between cousins over distribution of grandparent’s estate. There were three pending matters: a lawsuit in civil court to enforce a contract to make a will, probate court had petitions for instructions reconstruction of trust, petition to remove trustee. A petition for an order modifying irrevocable trust was dismissed before mediation. Settlors originally left everything to grandchildren equally. First settlor died, surviving settlor disinherited her son’s two children from surviving trust. Attempt to disinherit them from bypass trust.

Family dispute over validity of trust amendments, and funding of trust. Only trust asset was family home. One sibling died before distribution. Surviving two siblings disputed who were the beneficiaries, matter resolved with agreement to sell.

Dispute between sisters as to amount of trustee conservation fees owed to the sister who was trustee. Trust provided for 50/50 split of assets. Trustee sister requested 10 years’ worth of fees after both parents died.

Dispute between trustee and guardian ad litem of two beneficiaries over funding of contingency fund in education of beneficiaries. Trustee failed to set up fund and made distributions to 3 of 7 beneficiaries in violation of trust terms.

Dispute between 2 siblings over division of trust $5.7 million in assets, consisting of real property, cash, securities, LLP holdings. They also dispute language of a trust amendment leaving a special gift of personal property to one of them.

Dispute over whether 89-year-old mother needs conservatorship; petition to invalidated trust amendment disinheriting one sibling (of 3); claims of undue influence and lack of capacity; allocation of assets including family business.

Dispute between court appointed guardian ad litem for a 5-year-old, and the child’s mother, as to funding of a trust from child’s grandfather’s estate, and terms of the trust. Mother was disinherited by her father, the minor’s grandfather.

Conservator/successor trustee sued former trustee/bank for breaches of fiduciary duty, claiming prior trustee disregarded express terms of trust by selling trust assets (stocks & bonds). Former trustee cited prudent investor rule, denied breaches of duty and denied trust was damaged.

Decedent’s daughters filed petition to declare trust amendment forcing a caretaker to be invalid. Widow filed omitted spouse petition. Caretaker filed petition to confirm assets. All 3 petitions were settled via zoom mediation, with caretaker agreeing to vacate property in exchange for monetary payment

2 brothers/nephews of sisters who never married or had children, were co-trustees of aunt’s trust. One brother sued other for breaches of fiduciary duty, removal compel accounting surcharge for rents not paid on trust property. All 3 trust probate matters settled via zoom mediation with an agreement to remain as co-trustees, to informally account, and to pay fair market rental value plus back rent as a credit against final distribution.

Multi-petition probate matter; widow petitioned for probate of a holographic will leaving to her (7-month marriage), not mentioning decedent’s three sons. Ex-wife requested support for profoundly disabled son. Trustees of two trusts petitioned for return of funds taken by decedent.

Petitioner 80-year-old woman, sought recovery of her two properties, her home and a rental house, from daughter and grandson, who obtained deeds from petitioner within days of her suffering a stroke. She claimed elder abuse, conversion, breach of fiduciary duty.

Decedent amended her trust twice over a two-week period. First amendment left $100,000 to one brother. Second amendment disinherited him and left gifts to various persons and a charity in 20% increments. Brother sued to remove trustee, invalidate second amendment and sought surcharges and treble damages.

Two brothers in dispute over last trust amendment of their father which created a debt owed by one brother to the trust. Each brother filed a petition to remove the other as a co-trustee, claiming breaches of fiduciary duty. One brother also alleged undue influence as to final trust amendment.This matter involved a contest of a typed will and an earlier handwritten will, based on allegations of fraud, undue influence, lack of capacity. Decedent’s sister vs. his estranged wife were the parties. Sister also claimed there was a lost will leaving all to her. Settlement reached via division of the assets of a relatively modest estate.
Decedent funded 2 LLCs with promissory notes in favor of her children and step children. Step siblings removed decedent’s daughter as Manager. Issue arose concerning whether Operating Agreement contained an ambiguity as to what percentage of members would remove the manager. Parties agreed to explore funding a Grantor Retained Trust with the notes, and dissolving the LLCs.
Multi petition probate/trust matter: petition to enforce no contest clause, spousal property petition, competing petitions to probate will, will/trust contests. Decedent executed will and trust and other testamentary documents days after receiving a diagnosis of terminal cancer, and weeks before his death, appointing his daughter trustee and executor. Wife claimed lack of capacity, and alleged undue influence and fraud by her step-daughter. Main assets at issue were family home and a pension plan. Global resolution was reached.
Trust litigation involving multiple petitions, accountings and objections thereto among siblings. Requests made to remove trustee (oldest son) for breaches of fiduciary duty and taking excessive compensation. Challenges to various powers of appointment. Family had a 10 year history of litigation. Global settlement reached as to all trust matters, leaving for Court resolution (or later mediation) a contested petition for conservatorship of the father of all siblings.
89 year old man and 85 year old wife each were represented by relatives holding powers of attorney. Dispute was over characterization of family home as community or separate property. At the start of their 30 year marriage, 2nd marriage for each, they executed a prenuptial agreement, still happily married, but in assisted living home, their liquid assets were limited. Her sons did not feel their mother should pay for step-dad’s expenses from her Separate Property Trust.
Legal malpractice/elder abuse/breach of fiduciary duties claims against lawyer and law firm arising out of handling of multiple probate and trust petitions which were all pending for trial at time of mediation. Multi-million dollar settlement reached prior to mediation between some beneficiaries was alleged by defense as a set off in the mediation.
Decedent amended her trust while in hospital to change distribution from 50/50 as between a grandnephew and a former niece in law to leave most of estate to former niece in law. Petition claimed elder abuse, undue influence, lack of capacity.
Family of 7 siblings – 6 vs. 1 on a petition to remove trustee and to compel accounting. Objections to accounting, dispute over value of assets, petition to distribute assets of trust valued at over $3.5 million. 6 siblings wanted to keep real property as investments. 7th sibling wanted to be cashed out.
A young father told his sister that he made her a beneficiary of his life insurance, with his son to receive funds if he died. Young father died unexpectedly. His sister did not distribute funds. Child’s mother claimed an oral trust existed for the minor’s benefit.
Petition to compel trustees to account; request for instructions to co-attorneys in fact; for appointment of guardian ad litem; to determine invalidity of trust amendments and exercises of powers of attorney. At time of amendments, mother was terminally ill. Father/surviving spouse was declared incapacitated. Trust previously provided for equal distribution to 3 siblings. After amendments, one sibling/son was disinherited.
Decedent left estate worth over $5 million to his 2 children. Prior to his death, his son served as conservator of person and estate for several years, until he was removed on ex parte application. His sister brought a petition for surcharge and accounting. He filed a petition for approval of attorney and conservator fees. Siblings agreed upon a division of assets – real estate to one, cash to the other, with an offset agreed upon.
Elderly woman sued family member for return of home that she deeded to family member in exchange for family member agreeing to make repairs to home.

Pre-Litigation dispute between surviving spouse and her two step children regarding allocation of trust assets (A & B Trusts) and regarding whether spouse should resign as co-trustee.
92 year old woman claimed 2nd and 3rd degree burn injury from hot tea purchased at a fast food restaurant. Defendant denied liability and asserted comparative fault of plaintiff.
Petition under Probate Code Section 850 to return property to woman now under conservatorship, who had gifted property to a neighbor. Claims of lack of capacity, undue influence, elder abuse.
Dueling petition for conservatorship of 79 year old man. Caregiver middle child ultimately agreed to a conservator of person. Longtime family friend agreed to be conservator of estate. There were issues as to validity of trust documents and visitation by 2 other adult children.
Probate trust accounting. Sister claimed her brothers misused mother’s funds while she was living, also claimed financial elder abuse and breaches of fiduciary duties.
Contested conservatorship of estate of 91 year old man who changed his will to disinherit his son.
Global settlement reached after a 2-day mediation of an extremely acrimonious probate/trust matter involving a trust and three amendments thereto, which was assigned to the complex civil department due to the number and complexity of petitions and claims, including:

1. Accounting by suspended trustee and objections thereto
2. Accounting by court appointed private professional fiduciary and objections thereto
3. Petition by some of the heirs to remove private professional (who had been appointed by the court pursuant to their nomination) based on alleged breaches of fiduciary duty, breaches of trust, and failures to act competently
4. Contest to last Trust Amendment based on irrevocability of Trust, and petition to compel accounting, injunction, and declaratory relief, request for an order directing conveyance of real property from trust and income collected there from
5. Contest to 2nd to last Trust Amendment, both contests based on allegations of lack of capacity, undue influence, elder abuse
6. Civil lawsuit alleging a wrongful death claim, physical and financial elder abuse, conversion, conspiracy as to husband decedent
7. Elder abuse as to wife/trustor decedent.

Additionally, there were two probate petitions pending in the probate department, one as to each decedent’s estate, which were resolved as part of the mediation.

Issues were complicated by the fact that decedents had co-habitated for 25 years, and were married just weeks before husband was murdered the day after his wife was placed under a temporary conservatorship. (She died within months of a temporary conservatorship being established.) Wife had acquired all property long before she met husband. Adult children of each decedent were on opposing sides of the multiple petitions.

Trial time estimate for all these matters was expected to exceed 30 court days.
Multiple Petition Trust matter involving allegations of undue influence, breaches of fiduciary duty by self-proclaimed leader of a small church who convinced members to turn over all their assets to him as God’s appointed representative. After his death, church members claimed entitlement to all assets that were in his name. Matter involved multiple grant deeds and transfers of real property as well as personal property and money over a period of 40 years. “Church Prophet” was on a conservatorship the last year of his life. Multiple motions were pending at time of settlement.
Complaint alleged multiple breaches of fiduciary duty, duties of loyalty and care, and judicial dissolution of family business. Plaintiffs were adult children of decedent father; defendants were adult children of mother who died 6 years after her husband. Plaintiffs alleged defendant (including stepmother via claim against her estate) diluted assets.
Trust litigation between siblings who were beneficiaries of parents’ trust. One sibling was trustee since the death of the second parent, and resided in the home. The other two siblings alleged she failed to account and failed to distribute assets, and they sought removal of Trustee sibling. Trustee sibling claimed monies due for trustee fees and caretaking.
Petition of decedent’s son to determine title to and require transfer of personal property to estate; for damages for breach of fiduciary duty by executor; for removal of executor; constructive trust; attorney fees. Involved issue of whether a $775,311.11 cashier’s check payable to decedent (who had same name as his son) and which had not been negotiated at the time of his death was subject to probate administration. Decedent’s sister, the executor and trustee, contended that the proceeds of the cashier’s check did not belong to decedent, and that an agreement she signed with decedent’s sons excluded the check from probate administration.
Brother and sister embroiled in dispute which generated multiple petitions over a course of years. Issues as to who had a life estate in their father’s home and dueling allegations of breaches of fiduciary duty. Interim trustee was appointed, house ordered sold. Trustee resigned before house sold due to toxic relationship between the siblings. The court appointed a receiver. Receiver evicted the sister and sold home.
Petition to compel an accounting in the format set forth in Probate Code section 16063, to surcharge the trustee for failure to secure and protect trust assets to compel distribution of funds for the support of the beneficiary, and to remove the trustee. Petitioner (the Trust’s primary beneficiary) through his guardian ad litem sued trustee alleging he breached his fiduciary duties as trustee. Specifically, he alleged trustee (1) failed to secure the trust’s assets after the trustor died; (2) failed to distribute all of trustor’s personal property to him as the trust required; (3) failed to timely provide an accurate accounting for the trust upon request; (4) paid himself excessive compensation for his trustee services; and (5) failed to make monthly distributions from the trust to cover his living expenses.
Extremely complex multi-county probate matter involving decedent who had been living concurrently with two women in two different locations and had fathered children with each woman. Involved issues of Family Code community property presumptions, and determining date of marital separation. Decedent had acquired interests in drill sites and there were issues of characterization of that property. Also involved analysis of numerous deeds and validity of a sheriff’s sale and a settlement agreement with one of the spouses.
Dispute involving burden of proof as to a missing or lost will and whether will had been revoked. Former caretaker and agent by virtue of a durable power of attorney filed a petition for probate of a lost or destroyed will. She subsequently withdrew her petition. In her supplemented petition, she stated she did not know if the will was last in decedent’s possession, and even if it was, decedent was not competent until death, and accordingly, the Probate Code section 6124 presumption of revocation did not apply. She offered the photocopy as a “lost” will. Petitioner had acted as decedent’s agent under a power of attorney. The nephews of decedent filed a contest to this probate petition. They also filed their own petition for letters of administration based on intestacy. Thereafter, a brother-in-law and a cousin of the decedent also filed a petition for probate of a lost will, which was contested by the nephews.
Three grounds were asserted in the two contests: first, that the purported lost will was revoked by decedent prior to her death; second, that the presumption of Probate Code section 6124 applied; third that the purported lost will was not in decedent’s handwriting or not duly executed by her. It was undisputed that decedent never knew the contestants, her nephews.
The will left everything to decedent’s only daughter, who ultimately predeceased her, so that per the will, the estate would be shared by her husband’s sister and brother. The sister likewise predeceased testator. At the time of sale of decedent’s home, none of her important documents could be located. Lawyer testified as to client’s documents.
Two brothers alleged that their father intended to have his Leisure World property distributed in equal shares to his three sons. One brother agreed to purchase the shares of the other two sons and executed an unsecured promissory note for $90,000 to each son. That brother took title to the property, paid each remaining of his other two brothers’ $10,000 and then failed to pay the remainder owed ($80,000). He filed a civil complaint for rescission, cancellation of instrument, restitution, unjust enrichment and declaratory relief, alleging that he and his parents held the subject property in joint tenancy and that he was entitled to 100% of the property.
Dueling petitions to admit successive wills and a codicil, to probate. Issues of disqualified beneficiaries due to presumptions of undue influence (Probate Code section 21350), and standing of assignee of decedent’s step-son, beneficiary of an earlier will, to contest the two later created instruments. Also involved analysis of issues of lack of capacity of testator.
Issues of ambiguity as to testator’s intent where testator knew of a grandchild’s existence when he created a will, yet he did not mention her in the paragraph identifying his “then living grandchildren”, nor did he expressly exclude her in the Children’s Trust.
Two petitions: one was to appoint petitioner as successor personal representative and for issuance of letters of administration with the will annexed. The other was to remove executor, a lawyer who was related to decedent, to compel an accounting, and to award damages based on fraud and breach of fiduciary duty. Petition alleged that personal representative should be removed because he misappropriated assets of the estate for his own personal use. Issues of deference given to testator’s choice of executor.
An accounting wherein the Public Administrator (“PA”) requested statutory fees for the PA and County Counsel; extraordinary (“XO”) fees for the PA’s handling of the sale of two parcels of real property and for tax work; XO fees to County Counsel for litigation related fees and a distribution to the Trust after compensation, reserve for contingencies, closing costs, and bond fees. Trustee filed objections to the Account.
Three (3) competing petitions for probate of a will alleged to be lost or destroyed, versus revoked by testator who committed suicide and had children from an earlier non-marital relationship, along with children from his current spouse, in which divorce proceedings were pending but not finalized. Will contest and opposition to probate of purported will. Issues of Probate Code 6124 presumption and burden of proof to overcome that presumption.
Nephews of decedent petitioned to revoke probate of codicil to their aunt’s will. The central issue was whether the writing that decedent made on top of her previous will “I will change my will to leave everything equalie (sic) to my siblings” contained present testamentary intent so that it constituted a holographic codicil, or whether it contemplated taking action in the future. Affirmed on appeal.
Dispute involving successor trustee of decedent’s Trust and Attorney-in-fact under a Durable Power of Attorney (POA). Trustee had been decedent’s caregiver, and was in a fiduciary relationship with her. She moved in with decedent within a month of meeting her. She moved out later but she opened a checking account with decedent pursuant to the POA, which allowed her complete access to the ATM card until the account was closed. There were frequent and sizeable amounts of cash withdrawn from the account. No satisfactory explanation was offered for these withdrawals. Decedent’s home was sold prior to her death, and net proceeds were deposited into the POA checking account. Subsequently, decedent moved into an assisted living facility. While trustee was agent on the checking account, decedent re-financed her home several times. After decedent moved into care facility, there were numerous cash and ATM withdrawals that were not explained. Trustee had a fiduciary duty to decedent and breached that duty by failure to account for her actions. There was a judgment in for failure to pay the bill at the assisted living home and trustee was held responsible for the judgment.
First and Final Account Current; Request for Administrator Commissions and Attorney Fees and Costs Reimbursement; Petition for Final Distribution. Estranged spouse pled guilty to murder in the first degree of mother of the minor children.
Competing petitions to probate a will, administer estate, and will contest; petition to determine validity of decedent’s living trust and the validity of bank instruments making gifts to respondent . Also involved issues of the care custodian disqualification under Probate Code section 21350 as defined by WIC section 15610.17. Decedent met definition of “dependent adult.” Care custodian had burden of proof that the transfer was not the product of fraud, menace, duress, or undue influence. The “certificate of independent review” did not meet requirements of Probate Code section 21350(a). Petitioner argued she did not meet definition of care custodian. She was a full time driver, property manager, and companion to decedent and was paid anywhere between $500 to $3000 a month. Two weeks after she was hired as a driver, petitioner moved in with decedent. She received room and board and cash. She drove decedent to appointments and meetings, assisted with banking and bill paying, did shopping and took care of the household. While petitioner was living with him, decedent executed a will and trust, leaving his estate to his children (all adults) on his death. Within 2 years he changed all this, leaving everything to petitioner/care custodian.
Numerous insurance coverage issues arising out of a complex and highly publicized probate matter.
Among the controverted issues: Did the Petition to Determine That Particular Acts are Not a Contest in the Estate filed in the Orange County Superior Court on October 9, 1992 qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Insurance Policy issued to Law Firm? Did the “Petition to Declare Void a Trust Provision Designating Lawyer A Beneficiary of The Trust And To Establish A Constructive Trust [Probate Code Section ll200]” filed in the Orange County Superior Court on December 11, 1992 qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Policy? Did the “Petition For Review Of Account of Trustee and His Exercise of Discretionary Powers; Review the Reasonableness of Trustee’s and Attorney’s Compensation; And to Compel Redress of Trustee’s Breach of Trust; And for Surcharge of Trustee [Probate Code Sections 17200(5)(9) and (12), 16420(3) and (7); and 16440(a)]” filed a year later in Orange County Superior Court qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Policy? If so, was it related to the earlier claim, and thus the two petitions constitute one claim. Does the Corrected Judgment rendered for the December 11, 1992 Petition qualify as “damages” as defined by the Professional Liability Policy? Was coverage under the Professional Liability Policy for the Corrected Judgment on the December 11, 1992 Petition excluded under the “dishonest, deliberately fraudulent, criminal, maliciously or deliberately wrongful acts or omissions committed by the Insured” exclusion in the Professional Liability Policy? Had the payments, if any, made for defense costs exhausted the policy limits in the Professional Liability Policy and the General Purpose Endorsement?
Mother changed her will to leave bulk of her estate to the daughter who cared for her during the final years of her life. Other daughter claimed lack of testamentary capacity and undue influence.
Complex probate matter involving 5 petitions concerning 3 family trusts; issues of misconduct, validity of trust amendments, removal, accounting, and instructions
Dispute involving a life insurance policy that ex husband was required to obtain and maintain naming wife as beneficiary as part of divorce settlement. Petition for imposition of constructive trust, determination of title to insurance policy proceeds and separate property.
This was a mediation of competing petitions for appointment of conservatorship of person and estate of an 87 year old woman with progressive dementia. One son sought appointment of a private professional, and the other sought appointment of himself. The brother seeking appointment of the private professional brought his petition as a result of his concerns over his brother’s conduct and concerns for their mother’s deteriorating health. There were allegations of suspicious withdrawals in large sums of money from the conservatee’s Trust. The court appointed the private professional as temporary conservator, and ordered one of the brothers to file an accounting. Issues included who would be successor trustee of the mother’s revocable trust, whether she should be moved back to her home or remain in the assisted living facility where one son moved her, and whether assets needed to be sold to cover expenses. A global resolution was reached at mediation.

TRUST MATTERS

Successfully mediated a case involving challenges to a trust amendment made under allegedly suspicious circumstances. Days before his death following a serious auto accident, at the age of 91, testator amended his trust to exclude nieces by marriage (testator had no children or grandchildren) and add various business associates/friends. Amendment changed prior plans, and added the elderly father of the drafting attorney who had never prepared a will or trust before. Estate value was over $25 million. Amendment was challenged on lack of capacity and undue influence by one of the friends. All other beneficiaries filed objections.

Trust beneficiary sued private professional trustee alleging overbilling and numerous breaches of fiduciary duty.

Petition to remove sibling as co-trustee and surcharge for breaches of fiduciary duty. Respondent alleged( but did not petition for affirmative relief) undue influence and lack of capacity as to 2 trust amendments that added his siblings as co-trustees.

Trustee sued a business on a 20-year old due on demand note, wherein the creditors and former president of the business/signer of note were all deceased. There was an issue as to whether the decedent/alleged company representative had the authority to bind the company as a debtor. Neither trustee nor defendant business had records to show the loan was made or that any payments on the alleged loan were made.

Pre litigation mediation/settlement of trust and accounting dispute among uncle/trustee and his two nephews (brothers) over distribution of estate (valued at $5 million) of decedent/trustor (brother of trustee, father of beneficiaries). Settlement avoided years of protracted litigation and a myriad of potential trust petitions.

Petitioners, siblings of respondent, sought to invalidate a trust amendment based on grounds of undue influence/lack of capacity. Trust amendment disinherited the petitioners and left entire estate to their sister, the respondent. Respondent denied undue influence and argued that their mother made the change on her own volition. The case settled in follow-up about a month after the mediation.

Accounting and Probate Code section 17200 Petition for Instructions Regarding Validity and Enforceability of Trust Amendment (also described as a codicil to the will). Trustor died of cancer on August 3, 2011, while vacationing in Germany with her parents. She had established a revocable living trust by executing a declaration of trust on November 22, 2010. That same date she validly executed a pour-over will. Her daughter was the only Trust beneficiary. She also executed a grant deed transferring real property on November 22, 2010. Issue of whether that showed intent to amend her will. She prepared what she described as a codicil to her will, leaving $56,000 to various beneficiaries. Petitioner /Trustee, a friend of decedent, contended that document was intended to be an amendment to the trust. She argued that if the document was treated as a codicil, which didn’t amend the trust, the beneficiaries’ dispositions would be affected because the probate estate was likely insolvent. As Trustee, she had an obligation to argue for the beneficiaries, but she also was the beneficiary who would take the most under the “codicil”; no other beneficiary filed responses to the daughter’s objections to Trustee’s petition. Trustee argued that the handwritten document was an amendment to the Trust because it significantly altered the distribution, and if deemed a codicil, it would not amend the will which gifted the entire estate to the Trust.
Dispute as to whether a writing constituted a holographic will, a contract, an amendment to the trust or none of the foregoing.
Matter involving three (3) petitions and three (3) Trusts: Petition for Instructions by Trustee, Re: Determination of Amounts Due and Owing to Trust By Beneficiary and Charging Distributive Share of Beneficiary for Amounts Due and Owing to Trust; Beneficiary Second Amended Petition for Instructions, Removal of Trustee and Surcharge. Trustor claimed that beneficiary breached an oral agreement with Trustor/decedent by failing and refusing to make payments for costs and expenses of a condo in Ventura. The condo was in Trust A at the time of Trustor’s death. This beneficiary was a beneficiary only of Trust A.
Multiple petitions. Prior to establishing the Trust, decedent owned the certain real property as her separate property. Her husband was placed on title due to a lender’s requirement when Wife (decedent) refinanced the property in early 2003. He quitclaimed the property back to his wife later in the year, after the refinancing was completed. She then put the property into the Trust. Husband did not receive any of the funds, but remained on record as a borrower on the note and trust deed. In November of 2009, the court ordered the Trustee to pay off the balance of the Note, when foreclosure was threatened. Decedent’s mother argued the encumbrance was incurred by son-in-law and “his deceased wife,” as she referred to her daughter.
The adult children of decedent sought removal of Lawyer who was Trustee of one of the two Family Trusts on five grounds: breaches of trust (duty to serve notification of change in trustee, duty of loyalty, duty to deal impartially)—Probate Code sections 15642(b)(1), 16061.7, 16002, 16003; unfitness to administer the trust--PC 15642(b)(2); failure or declination to act – PC section 15642(b)(4); excessive compensation--PC section 15642(b)(5) and 15687(a) and (e)); and “for other good cause” – PC section 15642(b)(9).
Wife was the income beneficiary of a QTIP trust. Upon her death, after taxes and expenses were paid, the corpus was to be divided among the remaining beneficiaries, except that Husband’s share was to be in trust for his life. Principal assets of the trust were stock in closely held corporations. The stock was allocated to the QTIP after Husband’s death, and on Wife’s death, it was to be distributed 51% to Husband’s son, special trustee of the stock, with 49% to the other beneficiaries. The balance of the QTIP assets were ultimately to be split 5 ways. Trustee selected by Husband was a cousin but not a beneficiary. Objections focused on trustee’s alleged failure to adequately explain 6 items of the Account, and his paying himself $180,000 in compensation during the accounting period, particularly when the beneficiaries had told him they were in desperate need of distributions. The primary objection was to the trustee’s fees.
Dispute involving three (3) Sub Trusts, A, B and C. Daughter asserted 90 year old father, married to a mid 60s year old woman, had been subject to undue influence by his wife. Her father/trustee (and trustor) filed a petition for instructions and construction of trust instrument, seeking reimbursement of $453,385.60 in expenses he claims he paid out of his personal funds for maintenance of trust property, and litigation and accounting fees re: the trust and trust property. Issue as to whether he had improperly withdrawn principal from Trust C. Respondent was the daughter and the contingent remainder beneficiary of Trust C. (Trust C property consisted of 3 parcels of land including a single family home.) She argued that her father had authority to invade the principal of Trust C only to the extent actually necessary to allow him to maintain his accustomed standard of living, and that he breached his fiduciary duties as a trustee, in multiple ways. She asked the Court to remove her father as trustee of Trust C and appoint an independent fiduciary. She further asked that her father be ordered to account for his actions as Trustee, and surcharged in an amount equal to the amount by which the Trust had been depleted. Father denied he invaded principal of Trust C.
The primary disputed issue was whether trustee was permitted under the express terms of the Trust to reimburse himself from the principal of Trust C for the expenses he paid out of his own pocket for the benefit of Trust C. The expenses related to payments he made for repair and maintenance, water bills, taxes and insurance, as well as attorney and accounting fees he paid in connection with litigation involving the trust and trust property from 1993 to 2007.
Husband and Wife married in August 1995. It was the third marriage for each of them. Husband died at the age of 62. His sons by his first marriage were the designated beneficiaries under earlier trust amendments. They contested later trust documents claiming lack of capacity and undue influence by step-mother (his Wife).
Trustor’s nephew asked the Court to determine the validity of a trust amendment. He alleged diminished capacity on the part of his aunt, which made her vulnerable to undue influence and fraud by her husband of over three decades. Nephew claimed aunt’s husband exerted undue influence to obtain execution of the Trust. He also claimed financial elder abuse and breach of fiduciary duty. He sought the imposition of a constructive trust, and a determination that an earlier Trust became irrevocable after his aunt’s death.
Dispute involving whether the partnership distributions made to the Trust constitute principal or income. If they are income, which trust beneficiaries are responsible for payment of accrued but undistributed net income due the Estate? Or, against which trust assets should there be placed a lien for payment of accrued but undistributed income? Co-trustee contended that the distributions were income and that accrued but undistributed net income from the distributions were due the Estate and should be charged against the Trust A and Trust B beneficiaries on a pro rata basis. Co-trustee also served as executor, and in that capacity contended that the distributions were income, and should be a lien against the assets of Trust B. Objector contended the distributions were principal and therefore due and payable solely by the residual beneficiary of the trust principal.
This also involved an issue as to whether the bequest of the Trust’s interest in the residences was a general or specific bequest, and whether the expenses associated with the Trust’s “residences” (“residential property expenses”) should be charged to the beneficiaries of the Trust’s “residences”, prorated between all beneficiaries of Trust B, or prorated among all beneficiaries of Trust A and Trust B.
Two siblings petitioned the Court for a determination of the validity of trust amendments; to impose a constructive trust; and to compel trustees, one other sibling and his wife, to account. They dismissed a claim of elder abuse. An amendment excluded the first couple from the Survivor’s Trust. The controversy revolved around testamentary documents relating to the estate plan of the parents. Petitioners claimed parents lacked capacity to execute certain documents. They claimed their parents were the victims of brother and sister-in-law’s undue influence and fraud. They claim anything signed after 1996 contained forged signatures. The original trust provided for equal division among the siblings.
Long drawn out dispute between the beneficiaries of a family trust (the Trust) formed in 1973. Interim trustee petitioned for instructions about leasing real property of the Trust and directing the payment of net income to one of the beneficiaries. Interim trustee also petitioned for instructions about what conditions, if any, should be placed on the required distribution of one-half of the Trust’s principal to another beneficiary, in light of an over $5 million civil judgment he owed the Trust.
Complex trust litigation involving a family corporation, which was founded by the defendant’s now deceased father. Plaintiff was defendant’s former husband. A Trust petition sought instructions from the Court regarding the Trust’s obligations, if any, to pay for medical and educational expenses to, or on behalf of the Trust’s sole beneficiary, child of plaintiff and defendant, and expenses related to the ownership and maintenance of the Trust house. Concurrently with executing a marital settlement agreement, Husband and Wife established an Irrevocable Trust in their daughter’s name. The entire net income of the Trust was to be paid to the daughter after she reaches age 18. The Custody Agreement obligated Husband to pay 100% of daughter’s clothing, medical, dental, and educational expenses, including college or trade school. The Agreement was not clear as to whether that obligation continued past age 18.
Trustor created a trust whereby upon her death her estate would be distributed 1/3 to a friend and 2/3rds equally divided between her twin daughters. She further provided that if either daughter predeceased her, the surviving daughter would receive the other’s share. She gave no instruction as to what should occur if both of her daughters predeceased her. Both daughters left two sons. Trustor outlived both of her daughters. Two grandsons claimed they were entitled to the entire 2/3rd interest because their aunt died first. The other two grandsons argued that since both their mother and aunt died before their grandmother, the remaining 2/3rd interest in the trust should be shared equally by the four grandchildren.
Petition for Removal of Trustee, Accounting, Appointment of Successor Trustee, and for Redress of Breach of Trust. Petition alleged that trustee, a lawyer, was guilty of failure to use income and principal of the trust for the benefit of the beneficiary, and of breaches of trust and fiduciary duty. Petitioner was only five years old when her father established an irrevocable trust in her favor. The trust consisted of funds from a personal injury settlement obtained by her father after he was badly burned in an explosion at a refinery. Her father’s personal injury attorney was appointed trustee of the trust. A little less than four years later, attorney, as trustee, lent himself money from the trust – about 80 percent of the trust’s value at the time – giving in return his unsecured personal IOU providing for an 8 percent interest rate and no required payments of either interest or principal for 10 years. Neither the beneficiary nor her mother with whom she lived, were ever informed of the loan from the lawyer as trustee to himself as an individual, and neither learned of the loan until it was revealed in documents later obtained.
Objector was a remainder beneficiary of the Trust. The Trust did not contain a spendthrift clause. The creditor sought an order under Probate Code section 15306.5 allowing her to obtain 25% of any distribution to Objector/debtor, to satisfy all or part of her judgment from amounts which Objector was entitled to receive. Enforcement of a money judgment against a settlor’s beneficial interest in an irrevocable trust, requiring a court order per CCP section 709.010(a).
An action for determination of invalidity of a trust and for determination of invalidity of an inter-vivos transfer of certain funds, under the common law as well as under Probate Code section 21350. Issue was whether a transfer was made by a dependent adult to someone who was a care custodian of a dependent adult at the time of the transfer. Neither transferee became care custodians until after the trust was set up. Trustor’s condition of terminal cancer progressed rapidly during the final two weeks of his life, but until then, he was fully in charge of his affairs, although relying on his friends for emotional support.
Petition to Enforce Money Judgment arising out of a complex Santa Barbara family law matter against an Irrevocable Charitable Remainder Unitrust (“CRUT”). Petitioner sought to collect trust income and principal, and requested an order directing the trustee to withhold from judgment debtor/beneficiary, and pay to him, the quarterly distributions that the trustee would otherwise pay to beneficiary until the judgment, including accrued interest, was satisfied in full. (A court order is required per CCP section 709.010(a), which says, in part, that “The judgment debtor’s interest in the trust may be applied to the satisfaction of the money judgment by such means as the court, in its discretion, determines are proper…” This section describes the exclusive procedure for enforcement of a money judgment against a settlor’s beneficial interest in an irrevocable trust.) Santa Barbara complex family law judgment.
A dispute between the children of deceased trustor and the woman (their stepmother) who was married to their father for forty years. Petitioners were remainder beneficiaries of an exemption trust. Petitioners disputed the allocation of trust assets between two sub-trusts, with trustee/stepmother conceding that she inadvertently misallocated splitting of the assets at least once.
Complex accounting matter involving a family owned business. Petitioner (conservator of the person and estate of Trustor) filed a petition to compel accounting.
Husband and Wife were married for less than four years before Wife died. The probate court approved a settlement of a medical malpractice suit and the terms of a special needs trust (“SNT”). At the time of approval, the SNT provided that upon Wife’s death, the Trust would be divided into two shares, an Exempt Share and a Marital Deduction Share. Husband/father petitioned to modify the Trust to allow for him to withdraw monies for daughter’s support.
Petitioners sought an order allowing them to sell the stock of Corporation, the sole principal asset of the Trust. All co-trustees, and the guardian ad litem, agreed to the sale. Issue as to whether Objector had standing to object because she was neither a trustee nor a beneficiary. She had a judgment against Corporation, but did not own an interest in any of the stock.
Contest attacking four Amendments to a Revocable Living Trust; Petition for Suspension of Trustee and Appointment of Interim Successor Trustee; Petition for Interpretation and Validity of Trust Provisions. Son alleged that Trustee was a care custodian within the meaning of Probate Code sections 21350 and 21351 and therefore all amendments were invalid. He further alleged that Trustee drafted the last three amendments, so they were invalid under 21350. Shortly after Trustor’s second wife died, he and trustee struck up a romantic relationship, and Trustee moved in with Trustor. One Amendment gave Trustee the right to occupy Trustor’s residence after his death. Petitioner argued this Amendment was the result of undue influence, and furthermore that there was no trust residue to give.
Dispute involving an objection which sought to change the settlor’s estate plan by forcing the transfer of certain property, which was to be distributed under the terms of the settlor’s will, to the trust’s residuary beneficiaries, who were not named as beneficiaries under the will. Additionally, the objection challenged the discretion given to the will’s executor; because the will specifically and clearly gave the executor broad discretionary powers to act as she did, the objection contested or sought to invalidate the will’s provisions, thus implicating the trust’s no contest clause.
Protracted matter involving multiple trust and conservatorship accountings, surcharge requests for breaches of fiduciary duties. Trust owned properties described as residential care facilities for adults with developmental disabilities
Mediation of a complex trust matter involving 3 separate trust petitions, as well as a separately filed family law petition, and a civil action for elder abuse and restraining orders. Husband and wife had been married for close to 60 years, during which time they amassed a community estate worth over $20 million, invested primarily in non-liquid assets/real property. Both were physically frail, and in failing health, but alert and competent. Multiple legal actions arose due to disputes among their three adult children, after husband/father was removed as co-trustee of the family trust by the two other co-trustees, his daughter and his wife. A settlement agreement reached among the parties 2 years earlier was repudiated by all of them, and the result was the numerous set of filings that were the subject of the mediation. Issues included undue influence by the son over his father, financial and physical elder abuse, requests for accountings, whether there should be restrictions on the use of monthly payments to the beneficiaries, surcharges for advances made to the son, and appointment of a private professional fiduciary. A global settlement was reached resolving all pending litigation, and the parties agreed on new pour-over wills, and a restatement of the trust.

HON. MARY FINGAL SCHULTE

PROBATE, ESTATES & TRUSTS

TYPES OF PROBATE, ESTATES & TRUSTS CASES HANDLED:

ATTORNEYS’ FEES

PROBATE MATTERS

TRUST MATTERS