Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 13 | NUMBER 2 | FEBRUARY 2018
 
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IN THIS ISSUE
 
Upcoming Events
>
Save the Date
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Did You Know?
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Practitioner's Notes
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Court News
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Special Announcements
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Recent Cases
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The Trusts and Estates eBulletin
is published monthly by the Trusts and Estates Section, coeditors:

Jana Gordon Garrotto
Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP
jgarrotto@wrslawyers.com

Stefanie S. Cutler
Ruttenberg Cutler, LLP
scutler@ruttenbergcutler.com

Roseann DeRosa

Jessica Ghirardo Gordon
Thompson Coburn LLP
jgordon@thompsoncoburn.com

Trusts and Estates Executive Committee Officers:

Julia L. Birkel, Chair
Marc L. Sallus, Esq, Vice-Chair
Stefanie S. Cutler, Secretary & Treasurer
Matthew W. McMurtrey, Immediate Past Chair

 

 
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Upcoming Events
 
Probate Attorneys' Top Ten Peeves

Date: March 16, 2018
Program: 12-1 pm
Location: LACBA Conference Center

Program Description: A panel of Los Angeles County Probate Attorneys shall discuss their top problems with probate and trust pleadings, accountings, and proposed orders and how to avoid them.

Click here for more information and to register


We'd like to thank The Sanborn Team for their sponsorship of our events.

Sanborn-Team-Logo

 
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Save the Date
 
Trusts and Estates Reception

Date: May 9, 2018
More information to come.

Fundamental/Refresher PVP Attorney Training

Date: May 26, 2018
More information to come.

 
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Did You Know?
 
Did you know...

Did you know... that the following are revised forms for Elder or Dependent Adult Abuse filings.

EA-100
Request for Elder or Dependent Adult Abuse Restraining Orders

EA-120
Response to Request for Elder or Dependent Adult Abuse Restraining Orders

EA-130
Elder or Dependent Adult Abuse Restraining Order After Hearing (CLETS-EAR or EAF)

EA-600
Request to Modify/Terminate Elder or Dependent Adult Abuse Restraining Order

EA-610
Notice of Hearing to Modify/Terminate Elder or Dependent Adult Abuse Restraining Order

EA-620
Response to Request to Modify/Terminate Elder or Dependent Adult Abuse Restraining Order

EA-630
Order on Request to Modify/Terminate Elder or Dependent Adult Abuse Restraining Order

 
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Practitioner's Notes
 

Tips Regarding Submission of an Order when a Bond is Involved

If bond is ordered and you have an order appointing a fiduciary and letters will need to be issued for the fiduciary to be official, it is most efficient to e-file your order and duties after the hearing, and send the original bond form along with letters to your bonding company to process at the courthouse once the order is scanned onto their system.

It is best, after letters are issued, to then e-file your Application and Order Appointing Probate Referee.

If you have any other orders, such as Appointment of Trustee, Order Approving Confirmation of Sale, Order Approving Accounting etc., where a bond has been ordered or an additional bond has been required, it is best to have your bond filed first, make sure it is scanned on the court’s system, and then e-file your order with the court. The probate attorneys for the court will require that your bond be on file prior to approving your order.

 
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Court News
 
Honorable Roy L. Paul

Honorable Roy L. Paul is retiring February 16, 2018. We thank him for his service and wish him well going forward.


Prior Probate Notes Are Now Available Online

Until now, probate notes have disappeared from the court website within one day of each hearing. Now they are available to the public for 60 days after the hearing.

The Court has recently added this feature to the court’s public website.  To access prior notes, the attorney or litigant will pull up probate notes for their case on the court’s website as they always have, but now there is a “View Past Hearings” button at the top right of the screen.  A click of that button will show the probate notes for any hearings within the past 60 days in that case.  The hope is that by having separate notes screens for pending hearings and prior hearings, we will avoid confusion of prior and current notes for continued matters.

The Bar has asked for this feature so that notes can be obtained by attorneys who are new to a case and perhaps did not capture the notes leading up to their first appearance. This change should also help self-represented litigants who did not know about the notes until their appearance at the first hearing.


OSC Dates

The probate courts have been setting OSCs for a date thirteen months after appointment of the personal representative because of the requirement that petitions for final distribution or a status report must be filed no later than 12 months after appointment. Personal representatives will receive notices regarding the OSC two months before the date of the OSC to ensure that the parties are progressing with completion of the administration. This policy has been in effect for approximately five months and practitioners and personal representatives need to administer their estates diligently in order to avoid appearing at an OSC.


Efiling Updates

The court is continuing in its efforts to streamline administration of estates in accordance with efiling. The court is currently focusing its attention on implementation of a complete electronic workflow for the processing of proposed orders which will simplify the procedures currently in place which in turn is expected to reduce the delay in the entry of orders.

 
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Special Announcements
 
LACBA Section News

There has been a significant resolution by the Board of Trustees of LACBA as to new Sections procedures adopted 1/24/18. Click here for more information.

 
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Recent Cases
 
Criminal Law and Procedure

Penal Code Sec. 1370 authorizes a court to order a conservatorship investigator to initiate conservatorship proceedings when it appears to the court that the defendant is gravely disabled, but it is the investigator, not the court, who decides whether to file a petition for conservatorship. A court lacks the authority to order the conservatorship investigator to file a petition, and filing the petition is not a ministerial act that can be compelled by a writ of mandate. An investigator’s decision to file a petition for a Murphy conservatorship is reviewed for an abuse of discretion. An investigator abused his discretion in concluding the felony charge was insufficient as a matter of law to support a Murphy conservatorship. An information is valid for purposes of proceeding with a Murphy conservatorship even if it will be subject to dismissal if the conservatee regains competency and again becomes subject to criminal proceedings.

Conservatorship of Lee C. - filed Dec. 29, 2017
Cite as 2017 S.O.S. 5
Full text click here>

Immigration Law

An immigration judge's findings as to an alien's present mental health condition were not supported by a medical record that was nearly a year old. When the Department of Homeland Security is providing ongoing medical care to a detainee, it necessarily possesses relevant medical records, and it has an obligation to provide those records to the immigration judge.

Calderon-Rodriguez v. Sessions - filed Jan. 3, 2017
Cite as 2017 S.O.S. 16-70225
Full text click here >

Insurance Law

A conflict of interest does not arise every time an insurer offers to provide a defense under a reservation of rights. There must also be evidence that the outcome of the coverage issue can be controlled by counsel first retained by the insurer for the defense of the underlying claim.

Centex Homes v. St. Paul Fire & Marine Insurance Company - filed Jan. 22, 2018, Third District
Cite as 2018 S.O.S. 344
Full text click here >

Real Property

An easement holder could not state a viable cause of action for trespass against the owners of the property subject to the easement because she did not have a right to exclusive possession of the land, but her lack of exclusive possession did not preclude her from stating a viable cause of action for nuisance. An easement holder's allegation that she used the easement over a five-year period in a way that exceeded the usage authorized by the recorded grant was sufficient to support a cause of action for a prescriptive easement.

McBride v. Smith - filed Jan. 4, 2018, First District, Div. Four
Cite as 2018 S.O.S. 64
Full text click here

When two deeds of trust are submitted at the same time for recording, the trial court reasonably relied on the apparent intent of the parties to determine the priority of the liens. When both liens involved the sane lender, the reasonable expectation is that it would secure the much larger loan in the primary position.

MTC Financial, Inc. v. Nationstar Mortgage - filed Jan. 23, 2018, First District, Div. Three
Cite as 2018 S.O.S. 368
Full text click here >

Taxation

Revenue and Taxation Code Sec. 5152 does not apply whenever an assessor merely fails to apply a statute or regulation. For a fee award under the statute to be appropriate, a court must make a factual finding that the assessor subjectively believed a specific provision of the state constitution, the property tax statutes, or a State Board of Equalization rule or regulation was unconstitutional or invalid, and assessed property contrary thereto, but the assessor failed to bring the requisite declaratory relief action. The subjective belief of the assessor may be demonstrated through statements made by the assessor or objective facts which evidence the assessor's subjective state of mind.

Land Partners, LLC v. County of Orange - filed Jan. 10, 2018, publication ordered Jan. 22, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 371
Full text click here >

Trusts and Estates

A probate court's finding that the executor of an estate had good cause to oppose a petition necessarily subsumes its determination of the assistance that will be necessary because a court cannot appropriately assess whether good cause exists to allow an executor to participate in an action without some notion of what form that participation will take.

Estate of Kerkorian - filed Jan. 19, 2018, Second District, Div. Five
Cite as 2018 S.O.S. 349
Full text click here >

A lawsuit against a trustee for an alleged breach of loyalty by misusing trust assets by filing petitions and motions to change the trustee succession rules to create an advantage for a select portion of the trust's beneficiaries was not an action based on a constitutionally protected activity for purposes of the anti-SLAPP statute. Although the alleged breach of loyalty may have been carried out by the filing of probate petitions, it was not the petitioning activity itself that was the basis for the breach of fiduciary claim.

Gaynor v. Bulen - filed Jan. 23, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 375
Full text click here >

 
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