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SPECIAL EBULLETIN - MAY 2020
 
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The Trusts and Estates eBulletin
is published monthly by the Trusts and Estates Law Section, coeditors:

Jana G. Garrotto

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

Jessica G. Gordon
Thompson Coburn LLP
jgordon@thompsoncoburn.com

Trusts and Estates Executive Committee Officers:

Stefanie S. Cutler, Chair
Jana G. Garrotto, Vice-Chair
Deborah Keesey, Secretary & Treasurer
Marc L. Sallus, Immediate Past Chair

 

 
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SPECIAL EBULLETIN: LASC PROBATE COURT ANSWERS
FREQUENTLY ASKED QUESTIONS
SERIES NUMBER 2 (May 12, 2020)
 

Our nation is facing a public health crisis that is unprecedented in our country.
  
Thank you for your patience and flexibility during this fluid and uncertain time.

While the court offers guidance on processes within its control, it cannot address or direct processes handled outside of its governance, such as processes within the control of medical or housing facilities, the Sheriff’s Department, Banks, Secretary of State’s Office, etc.  The court is also not inclined to instruct counsel on how to handle their cases or on issues with the Court that are outside the scope of Probate. 

Pending further Order of the court, at present, the court is only conducting “time-sensitive essential functions” as defined in the March 17, 2020 General Order issued by the Presiding Judge of Superior Court of California, County of Los Angeles which may be found by clicking here.  


Please keep in mind that the situation remains fluid and that we could possibly see further court orders. In addition to the General Order dated March 17, 2020, there have been subsequent court orders issued by the Presiding Judge on March 19, 2020, March 23, 2020 April 2, 2020 and April 14, 2020.  If further orders are issued, updated information will be provided as the situation develops.


Frequently Asked Questions for the
Probate Division of the Court - Series No. 2

  1. PACE Related Concerns
    A PACE claim may be submitted immediately after and no later than 90 days after the date of service and the order for fees has been made.

    In general claims are processed within 45 days from submission date.  If they are returned to the courtroom due to exceptions on the claim (such as exceeding caps, exceeding initial hours authorized, or other reason requiring further inquiry), this may cause the claim to take longer to process.  Additional FAQ’s related to PACE processing, including PACE office contact information are available on the court public website at:

    http://www.lacourt.org/generalinfo/pace/GI_PC001.aspx#faq

    The claim should be addressed to the courtroom where matter is assigned.  

  2. Will Report of Sale and Confirmation of Sale Petitions and Petitions seeking Attorney’s Fees be given priority over other Probate matters?
    The Court’s General Order of April 17, 2020 designating time sensitive essential functions did not designate these petitions as time sensitive and thus they do not get priority settings, absent exigent circumstances.  Continuance and new setting dates will be based on currently calendared dates being moved forward to available slots given reduced calendar sizes to address social distancing requirements.  All other processes related to these hearings remain the same, including the over-bid process.
     
  3. How do I make a request to continue a hearing if I have a conflict with the continuance date provided by the Court?
    The local form LASC PRO 080 - Request To Continue Petition Hearing and Order may be submitted for Court review and approval. Temporarily, during the COVID-19 pandemic period, an email may be submitted to the Probate Attorney or Probate Examiner who drafted the notes to request a new court date. The Email addresses of the drafting Probate Attorney or Probate Examiner is set forth at the end of the Probate Note.  

  4. What are the new Probate Calendar times when the Court resumes non time sensitive functions? 
    Upon resuming full calendar operation, the Court must still employ practices that promote social distancing.  With that aim, the Court has staggered and reorganized its calendars as follows: 

    8:30   Matters without evidentiary processes expected, such as petitions recommended for approval or for which notes are expected to be cleared and matters recommended for a continuance 

    9:30    Matters for which JTD’s only remain or hearings on contested matters (not trials for now – see Question 15)

    11:00 Guardianship Appointment Petitions

    1:30    Conservatorship Appointment Petitions

    3:00    Motions or other matters (not trials for now – see Question 15) as set by the Court 

  5. Will new filings receive earlier hearing dates?
    Generally, no; the auto-settings for the efiling system have been adjusted to give hearings dates for newly filed petitions later in the year to avoid having those matters get hearings before continued matters.  Special settings may be authorized at the discretion of the judicial officer or for time sensitive matters as specified by code. 

  6. Are the probate notes currently getting posted?
    Yes, Probate Attorneys and Examiners have been drafting notes for all matters on calendar and posting the notes two weeks prior to the respective calendar date.  A few days after the notes post, however, those hearings are continued to future dates and the notes no longer remain posted because the original hearing dates are no longer on calendar.  The notes will be updated and reposted again two weeks prior to the newly continued hearing dates. 

  7. How long will we continue to submit orders for certification by mail?
    The clerk’s office is not currently open; this will be the practice until the Court opens the Clerk’s Office.  Information about reopening of Clerk’s Office will be provided when it becomes available through designated court representatives. 

  8. Are cases going to stay in the departments to which they were assigned before the pandemic?
    Yes.  The only exception would be a circumstance in which an urgent petition was heard, and it was discovered that it related to a matter already assigned to another department. In that case the urgent matter for any future dates would be heard in the other department not the department in which the essential hearing was held. 

  9. Can orders be submitted on the day of the hearing?
    The process for order processing has not changed due to the COVID-19 pandemic.  Orders are still processed after hearing, except for orders on temporary guardianship or conservatorship which may be brought on the day of the hearing.  

  10. Are any changes being contemplated to the ex parte procedures now in place?
    The non-appearance ex parte procedure now in place will remain when the Court resumes operations as social distancing in the Courthouse will continue to be necessary in furtherance of protecting the public and court staff. 

  11. Are any changes to staffing and Judicial Officer assignments contemplated when operations in the Court resume?
    Changes in the number of staff physically present in the Court at any given time are contemplated because of telework opportunities available in order to adhere to social distancing requirements for staff and the public.  At this time, no change in judicial assignments is contemplated.  If that changes, the information will be provided by court designated representatives.  

  12. Is remote (telephonic) appearance still authorized post the COVID-19 essential function period?
    Yes. Remote appearances are authorized and encouraged pursuant to Emergency Rule 3 of the California Rules of Court adopted effective April 6, 2020. This rule remains in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted or until amended or repealed by the Judicial Council. Thus, remote appearances are authorized post the COVID-19 essential function period.
     
  13. How may I obtain a copy of the Probate Investigator Report?
    You may contact the probate investigations public phone number to request a copy. Probate Investigations: 213-830-0855
    .

  14. Does Court Appointed Counsel need to pay for copies of records?
    Court Appointed Counsel may order non-confidential records on-line and request reimbursement on their claim for expense, including copies of records.  Automatic waiver of fees, including copying fees, is not automatic for Court Appointed Counsel. 

  15. When will the Court start scheduling Probate evidentiary hearings/trials?
    Trials are not expected to resume until, at the earliest, late August 2020. However, because of the need to address the backlog which resulted from the COVID-19 Pandemic and to comply with social distancing mandates, later dates in 2020 or early 2021 are more likely.

  16. Can original wills be lodged?
    At this time, all original Wills should be retained. Original Wills can be lodged with the Court when the clerk’s office re-opens. Further information will be forthcoming. 

  17. Where can I find the most current COVID-19 General Orders and Announcements?
    You can find this information on the Court’s website. Please check the Court’s website frequently for the most current Court related COVID-19 Information.
 

Click the link below for regular updates regarding the impact of COVID-19 on the LA area courts and the legal community.

> LACBA's Updated News and Documents Regarding COVID-19


 
 
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COVID-19 Q&A Presentation with LASC Leadership:
Register for Our June 5 W
ebinar

 

New Webinar! June 5 at 12 Noon:
COVID-19 Q&A Presentation with LASC Leadership.

An update from Los Angeles Superior Court Presiding Judge Kevin C. Brazile, Assistant Presiding Judge Eric C. Taylor, and CEO Sherri R. Carter.

Click Here to Register.

 
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Recent Cases
 

Family Law
A transmutation that does not meet the requirements of Family Code §852 is voidable, rather than void.

Safarian v. Govgassian - filed April 21, 2020, Second District, Div. Five
Cite as 2020 S.O.S. 1862

Full text click here


Real Property
A financial institution generally owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money; whether a duty exists depends on the weight of the factors set forth in Biakanja v. Irving, with a focus on whether this is a case where the plaintiff was intended to benefit from the transaction but was harmed by the defendant’s negligence in carrying it out.

Weimer v. Nationstar Mortgage, LLC - filed April 2, 2020, Third District
Cite as 2020 S.O.S. 1567

Full text click here >


Real Property
Plaintiffs were entitled to attorney fees under Code of Civil Procedure 1021.9 where they demonstrated concrete injury to real or personal property by the defendants’ trespass on a farmable parcel they held under a lease and damage to land that was under cultivation and intended for animal foraging; the fact that the trespass did not interfere with an active agricultural operation is not a bar to recovery of fees under §1021.9. A nonsignatory party to a contract cannot get an award of attorney fees under the contract if the party cannot demonstrate that it was a third-party beneficiary to the agreement.

Kelly v. House - filed March 23, 2020, publication ordered April 2, 2020, First District, Div. One
Cite as 2020 S.O.S. 1582

Full text click here >


Taxation
Under 26 U.S.C. §2036(a)(1), a grantor’s interest in a grantor-retained annuity trust is not a sufficient string that requires the property interest to be included in the gross estate; an annuity flowing from a GRAT falls within the class intended to be treated as substitutes for wills by §2036(a)(1); to avoid the force of §2036(a), a grantor must completely divest herself of possession, enjoyment, and income from the property, and the beneficiaries’ interest must take effect prior to the grantor’s death. The panel concluded that when a grantor derives substantial present economic benefit from property, she retains the enjoyment of that property for purposes of § 2036(a)(1).

Badgley v. United States - filed April 28, 2020
Cite as 2020 S.O.S. 18-16053

Full text click here >


Trusts 
Trustees may represent themselves in an action seeking judicial clarification on how to interpret a trust document, where they are not acting on behalf of the trust beneficiaries, without engaging in the unauthorized practice of law.

Donkin v. Donkin - filed April 3, 2020, Second District, Div. One
Cite as 2020 S.O.S. 1633

Full text click here >


Trusts
A general power of appointment enables the powerholder to act in a nonfiduciary capacity; a trustee cannot breach any fiduciary duties by doing something that was expressly authorized under the terms of the trusts.

Tubbs v. Berkowitz - filed April 7, 2020, Fourth District, Div. Three
Cite as 2020 S.O.S. 1697

Full text click here >


 
 
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