What are the ethical obligations of a California lawyer for a client with diminished mental capacity?  The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with public comment due by August 24, 2021. While all lawyers may represent clients who have questionable capacity, the situation arises with frequency and urgency for estate planning attorneys.  The opinion interprets the California Rules of Professional Conduct as amended in 2018.  Along with the updated ethics guide recently published by the Trusts and Estates Section of the California Lawyers Association, the opinion…

We’ve written about how co-trustee conflict fuels California trust litigation and the problem seems to be growing.  Trust administration grinds to a halt because a co-trustee (or two or three) is hostile, stubborn, self-serving and/or apathetic.  While trusts are supposed to provide a streamlined alternative to a court-supervised probate proceeding, the efficiency may be is quickly lost when co-trustees are unable to work together. How to deal with an uncooperative co-trustee?  The answer will depend on variables such as the wording of the trust instruments, the nature and value of the assets held in the trust, and the personalities of…

Section 2030 of California’s Family Code provides an important safeguard to ensure the fairness of marriage dissolution proceedings. It allows the Court to order a more financially well-off party to pay some or all of the other party’s attorney fees, beginning as early as the start of the proceedings. Section 2030 was enacted to put divorcing parties on equal footing. The protections of Section 2030 extend beyond spouses: where a third party has been joined to a dissolution proceeding, the statute allows the court to order that third party to pay the attorney fees of one of the spouses to…

When a California probate court establishes a conservatorship, the conservator is charged with managing the conservatee’s person and/or estate in the conservatee’s best interests. The large majority of professional fiduciaries and family members who become conservators discharge their duties faithfully. Occasionally, however, a conservator may exploit the relationship for personal gain. Over the past year, conservatorships increasingly have been in the spotlight. Perhaps responding to the hype, the California Legislature is considering legislation, Assembly Bill 1194, that aims to strengthen protections against abuse. In this blog post, we provide a summary of some key features of AB 1194 and…

Many California trusts confer a lifetime right to income on a person (often the surviving spouse) with the remainder passing to designated survivors upon the income beneficiary’s death.  When the income beneficiary dies, is it too late for the executor of the beneficiary’s estate to request an accounting for the purpose of evaluating whether the deceased beneficiary received all income to which he or she was entitled? No, says the California Court of Appeal in Dunlap v. Mayer (2021) ___ Cal.App.5th ___.  A decedent’s successor in interest, such as an executor, can hold the trustee to account.  In addition…

We blogged recently about Keading v. Keading (2021) 60 Cal.App.5th 1115, which addresses whether a trial court can impose damages under California Probate Code section 859, without a finding of bad faith, if the court finds that a person has taken, concealed or disposed of property by committing elder or dependent adult financial abuse. There is another split of appellate authority as to the interpretation of section 859.  Last year, the Court of Appeal, in Estate of Ashlock (2020) 45 Cal.App.5th 1066, held that a prevailing party is entitled to double damages under section 859, in addition to…

When are delusions enough to invalidate an estate plan?  The California Court of Appeal addressed that issue earlier this month in Eyford v. Nord (2021) ___ Cal.App.5th ___. The case involves a 90-year-old woman who favored a charity and disinherited the two grandchildren with whom she had been close.  The appellate court found that California Probate Code section 6100.5(a)(2) requires proof of a “mental health disorder” in addition to a delusion that caused the questioned testamentary disposition.  The opinion provides a guidepost for California lawyers who litigate contests arising from alleged delusions. Kay Pearson Turns Against and Disinherits Her…