Cases: Probate

Probate, Requests For Admissions, Section 998: Lower Court Properly Denied Probate Estate’s Request For Costs-Of-Proof Sanctions And Routine Costs

Cases: Probate, Cases: Requests for Admission, Cases: Section 998

  Section 998 Inapplicable In Probate Proceeding.     In a dispute involving the reformation of the terms of a “tontine” or survivalist partnership agreement, a probate estate was denied “costs-of-proof” attorney’s fees under Code of Civil Procedure section 2033.420 and had stricken its memorandum seeking post-remand costs based on Code of Civil Procedure section 998 […]

Probate: Litigant’s Failure To Challenge Order Fixing Attorney Compensation Timely Was Fatal, With Appeal Being Dismissed

Cases: Probate

  Probate Code Section 1304 Makes These Orders Immediately Appealable, Not Interlocutory Orders Appealable From A Final Judgment.       For probate practitioners, Gonzalez v. Thomas, Case No. B250492 (2d Dist., Div. 8 June 5, 2015) (unpublished) is a good refresher course on appeal deadlines for Probate Code cases involving the “fixing” of attorney fee compensation.

Attorney Lien/Probate: Attorney With Broad Contractual Attorney Lien Did Not Have To File Creditor’s Claim To Preserve Lien Against Trust “After Acquired” Assets

Cases: Liens for Attorney Fees, Cases: Probate

  Matter Reversed and Remanded to Determine Value of Attorney’s Lien in Trust.      Novak v. Kay, Case No. B256889 (2d Dist., Div. 5 Apr. 28, 2015) (published) involved an attorney with broad contractual attorney’s fees language in a retainer letter with a client who died but who was determined to be a pretermitted spouse

Probate: Unsuccessfully Objecting Beneficiary Had To Bear Trustee’s Attorney’s Fees For Defending Against Unreasonable, Bad Faith-Inspired Objections

Cases: Probate

  Lower Court’s Factual Findings Below Buttressed Affirmance.      Beneficiaries objecting to trustees’ accountings need to make sure their objections are reasonable and not inspired by bad faith. If not, you face having to bear the exposure of trustees’ attorney’s fees in defending against such objections. (Prob. Code, § 17211; Uzyel v. Kadsha, 188 Cal.App.4th

Probate: Daughter Trust Beneficiary Hit With $204,420.32 Attorney Fee Tab Aggregately Run Up By Sibling Beneficiaries In Defending Forfeiture/Surcharge Petition Found To Be In Bad Faith

Cases: Probate

  Equitable Powers of Probate Court Provided the Fee Entitlement Ground.      In Zankich v. Zuckerman, Case No. B247274 (2d Dist., Div. 8 Dec. 5, 2014) (unpublished), a petition seeking forfeiture and surcharge was filed by one daughter beneficiary against the trust distribution interests of her sibling beneficiaries, all involving deceased mother’s trust and alleging

Probate: Niece Successfully Obtaining Appointment of Independent Conservator For Person Of Conservatee Not Entitled To Fee Recovery Under Probate Code Section 2640.1

Cases: Probate

  Niece Not Entitled to Common Fund Recovery, However Maybe Indirect Recovery Appropriate Under Probate Code Section 2642, But That Section Was Never Raised.      Conservatorship of Mazzocco, Case No. E057485 (4th Dist., Div. 2 Nov. 25, 2014) (unpublished) involved some dueling conservatorship petitions for a consevatee having millions in assets even though he had

Common Fund/Probate: Former Trustee Obtaining Appointment Of Neutral Corporate Trustee And Distributions Of Benefits To Younger Generation Beneficiaries Were Entitled To Recovery Of $260,948.34 From Trust Under Common Fund Theory

Cases: Common Fund, Cases: Probate

  Actions Resulted in Younger Generations Getting $1 Million in Distributions Where Prior Distributions Only Went To Senior Generation Beneficiaries.      Neither the lower nor appellate courts in Gaynor v. Bulen, Case No. D064872 (4th Dist., Div. 1 Nov. 20, 2014) (unpublished) had much trouble with awarding certain former trustees of a trust attorney’s fees

Probate: Co-Trustee Brother Awarded Attorney Fees Of $178,850.15 While Co-Trustee Sister Denied Paralegal Fees Of $29,873.38

Cases: Probate

  Abuse of Discretion Standard Justified Brother’s Fees, While Sister Did Not Adequately Substantiate Paralegal Reimbursement Request.      In Arthur v. Davies, Case No. B249810 (2d Dist., Div. 6 Aug. 21, 2014) (unpublished), brother and sister had spent over $300,000 to compel trustee accountings, at times when they were both co-trustee. Brother eventually was awarded

Probate/Section 998: 998 Offer In Probate Court Found To Be Uncertain Based On Nonmonetary Terms Which Could Not Be Easily Ascertained

Cases: Probate, Cases: Section 998

Judgment Modification Terms Were Too Speculative in Nature.             Katz v. El Paseo Collection Elegante, Case No. G049807 (4th Dist., Div. 3 July 7, 2014) (unpublished) is a nice follow-on to our July 2, 2014 post in which we explored case law on what type of nonmonetary provisions in a CCP § 998 offer were

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