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If the revocable trust instrument specifies a method for modification, the trust may be modified via the Probate Code section 15401 procedures for revocation, including the statutory method, unless the trust instrument provides a method of modification and explicitly makes it exclusive, or otherwise expressly precludes the use of revocation procedures for modification.  (Prob. Code 15402.) Read More

A petition to determine heirship or beneficiary status and entitlement to distribution of a portion of a probate estate under Prob. Code 11700 is an entirely elective procedure.  A right to distribution is otherwise settled by the probate court's final order approving distribution of the estate.  Moreover, in a proceeding on a petition under section 11700, the court determines only… Read More

When a trust becomes irrevocable, the trustee must send a notice to all beneficiaries warning them that they have 120 days to bring any action to contest the trust.  (Prob. Code 16061.7.)  The 120-day limitation period for bringing an action to contest the trust is codified in Prob. Code 16061.8, which applies to any action challenging the validity of the… Read More

Under Probate Code 21380, a dependent adult's donative transfer to his or her  "care custodian" is presumed to have been the product of fraud or undue influence if the transfer is made in an instrument during the period the care custodian is serving in that capacity or 90 days before or after that period.  The statutory presumption of fraud or… Read More

When a trustee of an inter vivos trust does not initiate a proceeding under Prob. Code 19000 et seq. and there is no probate of the trustor's estate, a creditor of the estate may sue the trustee on the trustor's debt or file a petition against the trustee under Prob. Code 850 for any real or personal property that the… Read More

An unadopted stepchild may establish that the decedent was his parent for purposes of distribution of his intestate estate by proving the requirements set forth in either the Uniform Parentage Act (Fam. Code 7600 et seq.) which is incorporated by reference by Prob. Code 6453 or the separate requirements of Prob. Code 6454.  So the lack of a legal barrier… Read More

This decision holds that Prob. Code 448 and 1043 apply to trust proceedings, allowing interested parties that are not the trustee or the beneficiary to appear and object to a petition in a trust proceeding if it has a property right in or claim against a trust estate which might be affected by the proceeding. Read More

Three parcels of real property were owned 50-50 by two trusts established by different trustors and both were administered by the same trustee.  Charitable organizations were the sole beneficiaries of both trusts.  The museum that was the sole beneficiary of one of the trusts wanted the properties distributed in kind to avoid adverse tax consequences.  The beneficiaries of the other… Read More

While a trustee, executor or administrator may appear in pro per in requesting instructions from the court in fulfilling her duties, she may not, without a licensed attorney, represent the interests of the trust or estate beneficiaries in pursuing relief against third parties, whether she sues them in a separate action or in a proceeding in the probate court. Read More

Chase accepted a deposit from a decedent's estate and signed an acknowledgement of the court order establishing a blocked account requiring a court order for any withdrawal from the account.  The executrix was the sole authorized signer on the account.  After the executrix presented the bank with the court order approving her final account, the executrix withdrew and absconded with… Read More

A special needs trust is one established for a severely disabled person.  The trust is designed to supplement public assistance the beneficiary receives without rendering the beneficiary ineligible for that public assistance.  This decision holds that the trustee has discretion under a special needs trust to pay for goods and services for the beneficiary that are not supplied by public… Read More

Following Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, this decision holds that if a trust provides a procedure or method for amending the trust, whether phrased as exclusive or optional, any amendment must conform to that procedure or method; otherwise it is invalid.  Prob. Code 15402’s “qualification ‘[u]nless the trust instrument provides otherwise’ indicates that if any modification method is… Read More

The probate exception to federal court jurisdiction applies only  to cases in which the federal courts would be called on to “(1) probate or annul a will, (2) administer a decedent’s estate, or (3) assume in rem jurisdiction over property that is in the custody of the probate court.”  Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1252… Read More

Estate of Cornelious (1984) 35 Cal.3d 461 remains good law.  Under Probate Code 7540(a), a child is conclusively presumed to be issue of the man married to the child's mother, so long as the two were cohabiting at the time of conception and of birth.  Such a child is not allowed, at least for inheritance purposes, to prove that he… Read More

Probate Code 8402(a)(4) provides that to be eligible to serve as an executor or administrator of an estate, a person must be a resident of the US.  This decision interprets the statute as meaning that an executor or administrator must be "domiciled" in the US--that is, reside in the US with the intention of remaining there.  Here, the proposed administrator--the… Read More

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