Probate Stars Find a Probate Lawyer in all 50 States Thu, 02 Apr 2020 16:56:27 +0000 en-US hourly 1 Foreign Language Wills In California Probate Thu, 02 Apr 2020 20:44:09 +0000 A will written in a foreign language can be admitted to probate in California.  Certain rules and procedures must be followed.

What Happens When A California Decedent Dies With A Will Written In A Foreign Language?

Pursuant to California Probate Code § 8002(b)(2), a person seeking probate of a foreign language will must attach an English translation of the will to the petition.  Section 8002(b)(2) states:

If the will is in a foreign language, the petitioner shall attach an English language translation. On admission of the will to probate, the court shall certify to a correct translation into English, and the certified translation shall be filed with the will.

Who Can Translate A Foreign Will?

The translator of the will must be a person proficient in English and the language in which the foreign will is written.

Pursuant to California Rules of Court Rule 3.1110(g), the English translation of the will must be certified by a qualified interpreter.  A Certification of Translation of Foreign Will is a form that must be attached to the foreign will upon filing.

What If The Foreign Language Will Was Already Admitted In Another Jurisdiction?

If the decedent was a non-resident of California, but died owning property in California, an ancillary probate might be required.

If the foreign language will has already been admitted to probate in another jurisdiction, an authenticated copy of the will may be admitted in California in an ancillary probate.  The foreign language will may be admitted if the copy is “attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing.”  California Probate Code §§ 12520-12524.

The authenticated copy of the foreign language will is deposited independently of the probate petition, and a copy is filed with the petition for probate as an attachment.  An authenticated copy of the Order admitting the foreign language will in the other jurisdiction must also be filed with the petition for probate in California.

Pursuant to California Probate Code § 12523(a), the California probate court may refuse to admit the will even though it was admitted in another jurisdiction:

[W]here the order admitting the will was made under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.

We have written about some of the hurdles with authenticating foreign documents under California law here.


Can An Executor Sell Specifically Devised Personal Property In Texas? Thu, 02 Apr 2020 16:40:43 +0000 An executor can sell specifically devised personal property in Texas if doing so is not a breach of fiduciary duty, against the interests of the estate, or contrary to the terms of the will.  A March 31, 2020 opinion, Sklar v. Sklar, addressed the sale of specifically devised personal property by independent co-executors of a Texas estate and determined that the sale was not a breach of fiduciary duty.

The Facts of The Case: Sklar v. Sklar

Barbara Sklar named two of her four children, John and Pamela, as independent co-executors.  In her will Barbara granted the co-executors the following powers:

I authorize and empower my said Co-Executors to sell, dispose of, deliver and convey any portion of my Estate, real or personal, at public and private sale for any price, on any terms and in any manner that may seem best for them for the purpose of paying any of my debts, partitioning assets or any other purpose, giving due regard for the bequests that I have made herein.

This clause prompted litigation spurred by daughter Peggy.  In her will, Barbara specifically devised to Peggy her Nissan Murano and the funds in her Vanguard Energy Fund.  After being appointed as an independent co-executor, John sold the Nissan and the Energy Fund shares without consulting or notifying Peggy.

The Nissan was sold to CarMax after John twice received offers from CarMax for the same amount of $7,500.  Peggy was sent a check for $7,500.

The Energy Fund shares were sold for $32,729.70 and John offered the proceeds to Peggy.  Peggy filed suit demanding the actual shares.  So, John bought the shares back with an additional amount to reflect the gains in the value of the Energy Fund as well as interim dividends.  The shares were then transferred into a Vanguard Account that Peggy had created.

Peggy alleged in her lawsuit that the co-executors breached their fiduciary duties by selling items of personal property specifically bequeathed to Peggy without consulting or notifying her, and sold the Nissan for less than it was worth.

John testified that the estate:

[D]id not have enough money to pay its debts, including administration expenses. Nevertheless, according to John, every effort was made to ensure Peggy received what she was entitled to under the will; indeed, he stated that she was the only person to have received anything under the will except for personal possessions to the detriment of everyone else. He explained that he and Pamela decided to sell the Energy Fund shares in part because the value of the shares had risen over the 11 months prior to the sale and they thought it was in Peggy’s best interest to sell the shares and lock in the gains.

The Texas probate court held that the authority to sell contained in the will was valid against a specific bequest and that the co-executors sold the Energy Fund shares and the Nissan after ample consideration was given to each and after determining that the transactions were fair and reasonable and in the best interests of the estate.

The court further determined that the co-executors complied with the terms of the will, were not required to inform Peggy or obtain her consent prior to selling the assets, and did not breach their fiduciary duties by at one point requesting a release before delivering the proceeds from the Energy Fund shares.

Is It A Breach of Fiduciary Duty For A Texas Executor To Sell Specifically Devised Property?

Not as a matter of law.  To recover on a breach of fiduciary duty claim, a plaintiff must prove that (1) a fiduciary relationship existed between the plaintiff and the defendant, (2) the defendant breached his or her fiduciary duty to the plaintiff, and (3) the defendant’s breach resulted in an injury to the plaintiff or a benefit to the defendant.

Since John and Pamela were the executors of the estate, they owed fiduciary duties to Pamela, a beneficiary.

Pamela alleges that John and Pamela breached their fiduciary duties by failing to communicate with her or obtain her consent before selling the Nissan and shares of Energy Fund stock, and that John used false pretenses to entice Peggy into leaving the Nissan with him.

No Damages = No Recovery On Breach of Fiduciary Duty Claim

The appeals court determined that, even assuming that the executors breached their fiduciary duty to Peggy, Peggy failed to conclusively demonstrate that she was injured as a result of the breach.

Generally, fair market value is the proper measure of damages for the loss of personal property.

Here, the Nissan was sold to CarMax for $7,500, which is the amount Peggy received for the Nissan.  An appraiser testified that the fair market value and actual cash value of the Nissan at the time it was sold to CarMax was $7,500.  Peggy argued that the executors breached their fiduciary duty because the Nissan was resold for $16,599.  However, the appraiser cited the cost of repair, the buyer’s credit score, and carrying costs that accounted for that price.

Peggy failed to demonstrate that she was entitled to judgment on her breach of fiduciary duty claim as a matter of law.

Did the Executors Have The Authority To Sell Specifically Devised Property?

Yes, because under the terms of the will, the co-executors had the authority to sell specifically devised property.

After the bench trial, in which the question of whether John and Pamela had given “due regard” to the bequests was hotly contested, the trial court stated in its conclusions of law that:

[T]he intent of the testator is clear that the Independent Co-Executors, after giving due consideration to the bequests of any kind and nature made in the Will, had the right to sell any property of the Estate on any terms and in any manner that seemed best for them and that they deemed proper.

The trial court further found and concluded that John and Pamela had indeed given “due consideration” and “ample consideration” to the bequests. The court further noted the reasons that the two assets at issue had been sold: the Energy Fund shares because John thought it was in the best interest of the estate and Peggy to secure gains and avoid market fluctuations and the Nissan because John and Pamela believed it was prudent and in the best interest of the estate and Peggy to sell the car “[a]fter . . . weighing factors such as age, condition, repairs, storage, insurance and other costs.”

Far from modifying the will by ignoring the “due regard” language, the trial court found that John and Pamela gave due regard to the bequests.

In sum, because selling the property was in the best interest of the estate, after giving due regard to bequests of the property under the will, selling the property was not a breach of the co-executors’ fiduciary duties.

The dissent in this case argued that there was no evidence that the co-executors gave due regard to the specific bequests to Peggy.  In particular, the dissent took issue with the lack of notice to Peggy that the Texas co-executor was going to sell the Nissan, property specifically devised to Peggy, stating:

The Co-Executors had fiduciary duties to fully disclose to Peggy all material facts known to them that might affect Peggy’s rights, such as the Co-Executors’ decision to proceed with a sale of the car or the mutual fund. The Due-Regard Clause reinforces this duty by encouraging communication. Executors who communicate with beneficiaries about plans to dispose of specifically bequeathed items get the chance to gather important data for decision-making. With better information, they become better equipped to make decisions in compliance with their fiduciary duties and the will’s provisions. Executors who do not seek relevant, readily-available information that would inform their decision-making and judgment should explain why they failed to do so.

Best practice in this case would have been for the Texas co-executors to communicate clearly and openly with the beneficiary before sale of the property.  However, with limited resources, the co-executors made a determination that to sell the property was in the best interests of the Texas estate and the beneficiary.  Ultimately, the beneficiary was not damaged, having received the full value of her bequests.


Who Can Serve As A Fiduciary In New York? Thu, 02 Apr 2020 12:01:13 +0000 To serve as a fiduciary in a New York estate, a person is eligible except for the following:

  • Infants;
  • Incompetents;
  • Non-domiciliary aliens, except a foreign guardian or a person who serves with a New York co-fiduciary;
  • Convicted felons;
  • Persons who do not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit of the execution of the office;
  • Persons who cannot read or write English if the court in its discretion declares them ineligible.

This list of ineligible persons is enumerated in SCPA 707.

What Does Not Make A Person Ineligible To Serve As A New York Fiduciary?

If a nominated fiduciary’s issues do not fall within SCPA 707, the fiduciary is considered eligible to serve in New York.  A fiduciary is not ineligible because the person is:

  • Physically disabled;
  • Indebted to the estate;
  • Hostile to a beneficiary (unless such hostility interferes with the estate administration);
  • A creditor of the estate; or,
  • A person with a conflict of interest with the estate.

Failure To Possess the Qualifications Required of A Fiduciary

Perhaps the most ambiguous ground rendering a person ineligible to serve as a fiduciary in New York is someone who does not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit of the execution of office.  We have written about dishonesty as a ground rendering a person ineligible to serve here.

Regarding substance abuse, the abuse must be habitual or chronic.

For a person to be ineligible to serve as a fiduciary in New York because of “improvidence,” the improvidence must be such that the estate is unsafe or at risk of being lost or diminished if the person serves as the fiduciary.  In Matter of Paterniak (Sur. Ct. Nassau County 2003) the nominated executor had effected a few “irregular” and “misguided” financial transactions while she held the decedent’s power of attorney.  The Surrogate’s Court appointed her as fiduciary anyway because the court determined that she had safeguarded and accounted for all of the decedent’s assets.

In contrast, in Matter of Isaacson (Sur. Ct. Kings County 2008), a nominated executor who transferred large sums of money to himself while serving as attorney-in-fact for the decedent was found ineligible to serve as fiduciary of the New York estate.

Hostility that Interferes With the Administration of The Estate

An estate beneficiary does not want someone that has hostility towards them to serve as the fiduciary.  However, New York law does not disqualify someone as a fiduciary for mere hostility.  The hostility toward the beneficiary must be so severe that it interferes with the administration of the estate in order to be disqualifying.

An example of disqualifying hostility is Matter of Beharrie (Sur. Ct. Kings County).  In Beharrie, the petitioner for letters was the mother of two of the decedent’s non-marital children.  The petitioner did not get along with the mother of another of decedent’s non-marital children, refused to vacate the decedent’s property, and threatened litigation.  In this case, the hostility was deemed to be severe enough to interfere with the estate administration, and thus the petitioner was ineligible to serve.

Does A Will Challenge Make A Fiduciary Ineligible To Serve In New York?

No.  In Matter of Fodera, 465 N.Y.S. 2d 65 (2d Dep’t 1983), the proponent of the will offered the will for probate.  The nominated executor objected to the probate of the will on the grounds that the will had been forged.  The Surrogate’s Court admitted the will to probate, and also held that the nominated executor was ineligible to serve as fiduciary because of the challenge to the validity of the will.  The appellate court reversed the surrogate court’s decision, holding that the will challenge did not render the nominated fiduciary ineligible to serve.

Can A Corporation Serve As A Fiduciary In New York?

Yes.  A corporation can serve if it is a sole or residuary legatee of the New York estate.  SCPA 1418(4) states:

A corporation incorporated within the territorial limits of the United States which is a sole or residuary legatee may act as administrator with will annexed although not specifically so authorized by its charter or by any provision of law.

A corporation can also serve as a fiduciary in New York if the charter of the corporation authorizes so serving.  If the corporation is not authorized by its charter or under New York law, the corporation cannot serve.

Who Are Next Of Kin In Texas? Wed, 01 Apr 2020 19:47:34 +0000 Next of kin are generally defined in Texas as the closest members of one’s family, and are limited to those people living who are the closest blood relatives to the person in question.

Who Are Next of Kin In Texas?

Generally, next of kin in Texas are the persons listed below, in the order listed:

  1. Surviving Spouse
  2. Children
  3. Children’s descendants
  4. Parents
  5. Siblings
  6. Siblings descendants
  7. Paternal and maternal kindred

The term “next of kin” is used across many circumstances in Texas probate.

Next of Kin And Intestate Succession In Texas

Most commonly, the decedent’s surviving next of kin inform the descent of decedent’s property if decedent died intestate. We have written about the laws of descent in the context of surviving spouse rights in TexasTexas Estates Code §§ 201.001, 201.002, and 201.003 govern the descent and distribution of the decedent’s property as follows:

Married With Children

If a married person with children dies intestate in Texas, their property descends as follows:

Separate Property Real Estate Surviving spouse life estate in 1/3, Children and descendants of children subject to life estate
Separate Personal Property 1/3 to surviving spouse and 2/3 to children and descendants of children
Community Property All to surviving spouse if all surviving children and descendants are also descendants of surviving spouse
Community Property ½ to surviving spouse and ½ to children if there are children outside of the existing marriage

Married With No Children

If a decedent in Texas dies married with no children, their separate property real estate is distributed as follows depending on the other surviving next of kin:

Parents survive ¼ to mother, ¼ to father, and ½ to surviving spouse
One parent survives ¼ to parent, ¼ to siblings or their descendants, and ½ to the surviving spouse
No siblings or descendants ½ to parents and ½ to surviving spouse
No surviving parent ½ to siblings or their descendants and ½ to surviving spouse
No siblings or their descendants or parents All to surviving spouse

All other property goes to the surviving spouse.

Single With No Children

If a Texan dies single with no children, the distribution of their property depends on the next of kin surviving as follows:

Father and mother surviving only ½ to father and ½ to mother
Parent and siblings survive ½ to father or mother and ½ to brothers and sisters

Single With Children

If a decedent dies single with children, then the children take equally or their descendants.

Next Of Kin And Venue Of The Texas Probate Estate

Next of kin in Texas can also matter for where the probate administration occurs.   If the decedent did not have a domicile or fixed place of residence in Texas, and died outside of Texas, then pursuant to Texas Estates Code § 33.001, probate can be opened:

(i)  in any county in this state in which the decedent’s nearest of kin reside;

Next of kin is defined for purposes of section 33.001 as follows:

(1)  the decedent’s next of kin:

(A)  is the decedent’s surviving spouse, or if there is no surviving spouse, other relatives of the decedent within the third degree by consanguinity; and

(B)  includes a person who legally adopted the decedent or has been legally adopted by the decedent and that person’s descendants; and

(2)  the decedent’s nearest of kin is determined in accordance with order of descent, with the decedent’s next of kin who is nearest in order of descent first, and so on.


Next of Kin and Testamentary Capacity In Texas

Next of kin can also be an issue in Texas for purposes of testamentary capacity.  In the case of Wysick v. Estate of Wysick, 562 S.W.2d 903 (Tex. App. – Tyler 1978), the appellant argued that the probate court failed to permit explanation of the phrase “her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them.”

The probate court instructed the jury on testamentary capacity as follows:

By the term “testamentary capacity’ as used herein is meant that the person making the will must, at the time she signed the will,  have sufficient mental capacity to understand the effect of making a will, to know the general nature and extent of her property, to know her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them. . . .

Appellant requested the jury be additionally instructed as follows:

You are instructed that the term “her next of kin and the natural objects of her bounty’ means her descendants, if any, her parents, if any, and her surviving spouse, if any. Her nephews, nieces, brothers, and sisters and all other collateral heirs are not natural or normal objects of her bounty because of such relationship alone, and further that ordinarily the “natural objects of Testatrix’s bounty’ are those who, in the absence of a will, would inherit her property, but the question of who comes within the range of Testatrix’s bounty depends upon the facts and circumstances surrounding the Testatrix.

The court refused to give appellant’s requested instruction.  The Texas appeals court determined that the trial court committed no error in failing to submit appellant’s additional requested instruction.  A general understanding of next of kin, i.e., that they are the closest members and blood relatives of one’s family, suffices for testamentary capacity in Texas.

Next of Kin and Disposition of Decedent’s Body

Next of kin also matters for disposition of a Texas decedent’s body.  The Texas Health and Safety Code specifically outlines the order of priority for next of kin who have the right to control the disposition of a decedent’s remains in §711.002 as follows:

(1)  the person designated in a written instrument signed by the decedent;

(2)  the decedent’s surviving spouse;

(3)  any one of the decedent’s surviving adult children;

(4)  either one of the decedent’s surviving parents;

(5)  any one of the decedent’s surviving adult siblings;

(6)  any one or more of the duly qualified executors or administrators of the decedent’s estate; or

(7)  any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.

Electronic Wills In California Wed, 01 Apr 2020 16:05:35 +0000 Existing California law does not yet include a law providing for electronic wills, although proposed legislation exists.

California law generally requires that a will be in writing, signed by the testator, and witnessed by two witnesses.  California Probate Code § 6110.  We have written about the formalities required for a valid California will here.

Are Electronic Wills Valid In California?

Not yet.  California has pending legislation permitting electronic wills.  Assembly Bill 1667 was introduced in February 2019 and would provide that an electronic will is validly executed if it is executed in compliance with the provisions applicable to written wills in California.

AB 1667 is known as the “Electronic Wills Act.”

The Electronic Wills Act would amend section 6113 of the California Probate Code.  Currently, section 6113 states:

A written will is validly executed if its execution complies with any of the following:

(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).

(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.

(c) The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

The Electronic Wills Act would add the phrase “or electronic” in the first sentence of section 6113, so that it would read: “A written or electronic will is validly executed if its execution complies with any of the following:…”

More and more states, including Florida, are enacting electronic will legislation.

What Is Considered An Electronic Will Under the Proposed Legislation?

California’s proposed legislation defines “electronic will” as a “will executed electronically in compliance with this chapter,” that must be:

[S]igned electronically by two or more individuals, each of whom signed within a reasonable time after the individual, in physical or electronic presence of the testator and at the testator’s specific direction, who understand that the instrument that they sign is the testator’s will, and who witnessed either of the following:

(1) The signing of the will under subdivision (a).

(2) The testator’s acknowledgment of the signature or of the electronic will.


A pdf of Assembly Bill 1667 is here.  The progress of the bill can be tracked by clicking here and entering “AB 1667” under Quick Bill Search.  It is unknown when and if electronic wills will become law in California.  For now, California residents who seek to execute a will must follow the current requirements to execute a valid will in California.








Forfeiture Clauses In Texas Will and Trust Contests Wed, 01 Apr 2020 11:20:11 +0000 A forfeiture clause (also called a “no contest clause” or “in terrorem clause”) in a Texas will or trust is a clause that voids a devise in favor of a person for bringing any court action, including contesting the will or trust.  Said another way, a forfeiture clause conditions a bequest on a beneficiary not disrupting the will or trust.

The majority of states permit forfeiture clauses, although at least two states, Florida and Indiana, do not.

Forfeiture Clauses In Texas Wills

Section 245.005 of the Texas Estates Code governs forfeiture clauses in wills and states:

(a)  A provision in a will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a will, is enforceable unless in a court action determining whether the forfeiture clause should be enforced, the person who brought the action contrary to the forfeiture clause establishes by a preponderance of the evidence that:

(1)  just cause existed for bringing the action; and

(2)  the action was brought and maintained in good faith.

(b)  This section is not intended to and does not repeal any law recognizing that forfeiture clauses generally will not be construed to prevent a beneficiary from seeking to compel a fiduciary to perform the fiduciary’s duties, seeking redress against a fiduciary for a breach of the fiduciary’s duties, or seeking a judicial construction of a will or trust.

Forfeiture Clauses in Texas Trusts

Section 112.038 of the Texas Property Code addresses forfeiture clauses in trusts and mirrors the statute applicable to wills.

What Is The Purpose of A Forfeiture Clause?

The most common purpose of a forfeiture clause is to prevent will and contest litigation.  The person who is considering a will contest will have to think long and hard about whether they want to risk losing the bequest they get in the will in order to challenge the will.

When Is A Forfeiture Clause Violated In Texas?

There are several consistent rules applied by Texas courts to determine if a forfeiture clause has been violated.

First, “[i]f the intention of a suit is to thwart the settlor’s intention, the in terrorem clause should be enforced.”  Di Portanova v. Monroe, 40 S.W.3d 711 (Tex. App. – Houston [1st Dist.] 2012).

Second, a “violation of the in terrorem clause will be found only when the acts of the parties clearly fall within its express terms.”  Id.  Forfeiture clauses are narrowly construed by the Texas courts.

Texas courts have determined that the following suits do not trigger forfeitures:

  1. to recover an interest in devised property;
  2. to compel an executor to perform duties;
  3. to ascertain a beneficiary’s interest under a will;
  4. to compel the probate of a will;
  5. to recover damages for conversion of estate assets;
  6. to construe a will’s provisions;
  7. to request an estate accounting or distribution;
  8. to contest a deed conveying a beneficiary’s interest;
  9. to determine the effect of a settlement;
  10. to challenge an executor appointment;
  11. to seek redress from executors who breach fiduciary duties; and
  12. presenting testimony in a will contest brought by other beneficiaries.

For an in depth analysis, read the “Fine Art of Intimidating Disgruntled Beneficiaries with In Terrorem Clauses, The” by Gerry W. Beyer, et. al.

What Are The Exceptions to Forfeiture Clauses In Texas?

Under Texas law, a suit brought with “just cause” or brought and maintained in “good faith” will not trigger the forfeiture clause.  The person who brought the suit must prove these grounds by a preponderance of the evidence.

In In the Estate of Cole, the Texas court of appeals stated:

However, for good faith and [just] cause to be an issue, there must necessarily have been a contest contrary to the provision of the [forfeiture] clause.” In re Estate of Newbill, 781 S.W.2d 727, 730 (Tex. App.—Amarillo 1989, no writ). We must first determine if the forfeiture clause was triggered and if so, we then determine whether the triggering event was brought with just cause and maintained in good faith.

Forfeiture Clause Enforced When Party Ratifies Will Contest

In In re Estate of Hamill, 866 SW 2d 339 (Tex. App. – Amarillo 1993) the Texas Appeals court upheld a forfeiture clause. The testator included a forfeiture clause that ordered the disinheritance of any beneficiary who initiated an attack on the will.  The no-contest clause stated:

If any beneficiary hereunder shall contest the probate or validity of this Will or any provisions hereof, or shall be a party (except as a party defendant) to such a contest proceedings, regardless of whether such proceeding is instituted in good faith and with probable cause, such beneficiary and all of his or her issue shall be deemed for all purposes hereunder to have predeceased me, . . . .

The appeals court held that a party who appealed a judgment refusing her Texas will contest forfeited her bequest under the will pursuant to the forfeiture clause, stating:

Additionally, as we pointed out above, the record shows that Jane, as an adult, pursued an appeal from the trial court judgment refusing her contest. Thus, even if the original action brought by Elois on Jane’s behalf did not trigger the no-contest clause, Jane’s subsequent appeal of the trial court’s judgment was clearly a violation of the provision. Parenthetically, in our opinion affirming the trial court’s judgment, this court noted that Jane had attained her majority and was pursuing the appeal as the sole contesting party. Hamill v. Brashear, 513 S.W.2d 602, 605 (Tex.Civ.App.–Amarillo 1974, writ ref’d [**11]  n.r.e.). By filing the appeal, Jane, in effect, adopted or ratified the will contest brought in the trial court. As a result, we must hold that Jane forfeited her bequest under the will pursuant to the no-contest clause.

Does A Suit To Judicially Modify A Trust Trigger a Forfeiture Clause?

No, if modification is not specifically prohibited by the testator and does not defeat the testator’s intent.  In Di Portanova v. Monroe, a suit was filed pursuant to section 112.038 of the Texas Property Code for the judicial modification of the administrative terms of a trust.  The Texas appeals court determined that the action was not an action to thwart the testator’s intent.

First, no provision in the wills nor the trusts the wills created forbid consolidation of the trusts (the relief requested).   In addition, the changes were not prohibited in the will, did not defeat the testator’s intent, and would actually further the purposes of the trust.  The court noted, however, that any modification must conform as nearly as possible to the probable intent of the settlor.  The court stated:

The overarching purpose of all of these trusts is to “provide for the needs of the current income beneficiary, Ugo.” This suit for modification of administrative, nondispositive terms of the trust, pursuant to section 112.054(a)(3), cannot violate the Cullens’ intent because the purpose of the suit to consolidate them is “to prevent waste or avoid impairment of the trust’s administration”—the very intent expressed in the trusts themselves.

Forfeiture clauses in Texas wills and trusts are strictly construed, and rarely enforced.  However, if you are considering contesting a will or trust that contains a forfeiture clause, make sure you study the language and are bringing your action with just cause and in good faith.



What Is A Probate Referee In California Probate? Tue, 31 Mar 2020 20:36:41 +0000 A probate referee in a California probate is someone appointed by the court to appraise or value a decedent’s property.

To become a probate referee, you are required to pass an examination administered by the State of California.  A probate referee also undergoes annual continuing education.

When Is A Probate Referee Required?

A personal representative of a California estate is generally required to use a probate referee to appraise probate assets that the personal representative cannot.   Sometimes a probate referee is required in certain small estate administrations.  If an estate is solely made up of cash, then a probate referee is not needed.  See Inventory and Appraisal in California Probate.

The court can waive an appraisal by a probate referee upon a showing of good cause.  See California Probate Code § 8903. Generally, people will request such a waiver to save money.  However, the requests are not commonly granted and often do not end up saving money for the estate.

How Much Does A Probate Referee Cost?

A probate referee is entitled to a fee from the estate that equals .001% of the total assets appraised by the probate referee.  The probate referee is also entitled to actual and necessary expenses for each estate appraised.  See California Probate Code § 8961.

The minimum fee for a probate referee is $75, and the maximum fee is $10,000.  Pursuant to California Probate Code § 8963, the probate referee can apply to the court to be allowed a greater commission in excess of $10,000.  The court may grant the request if the court determines that the reasonable value of the referee’s services exceeds that amount.


How Does the Probate Referee Know What To Appraise?

As part of the duties of the personal representative, the personal representative provides the probate referee with the inventory of property that the probate referee needs to appraise.   The personal representative ideally has already marshalled the assets of the estate and will know the items that require the expertise of the probate referee.

How Long Does The Probate Referee Take To Appraise Estate Property?

The probate referee is required to promptly and with reasonable diligence appraise the property designated by the personal representative.  Pursuant to California Probate Code § 8940:

The probate referee shall, not later than 60 days after delivery of the inventory, do one of the following:

(1) Return the completed appraisal to the personal representative.

(2) Make a report of the status of the appraisal. The report shall show the reason why the property has not been appraised and an estimate of the time needed to complete the appraisal. The report shall be delivered to the personal representative and filed with the court.

Can A Probate Referee Be Removed By The California Probate Court?

Yes.  Pursuant to California Probate Code § 8924, the California probate court shall remove the designated probate referee in any of the following circumstances:

  • The personal representative shows cause, including incompetence or undue delay in making the appraisal, that in the opinion of the court warrants removal of the probate referee. The showing shall be made at a hearing on petition of the personal representative. The personal representative shall deliver pursuant to Section 1215 notice of the hearing on the petition to the probate referee at least 15 days before the date set for the hearing.
  • The personal representative has the right to remove the first probate referee who is designated by the court. Cause need not be shown for removal under this paragraph. The personal representative may exercise the right at any time before the personal representative delivers the inventory to the probate referee. The personal representative shall exercise the right by filing an affidavit or declaration under penalty of perjury with the court and delivering a copy to the probate referee pursuant to Section 1215. Thereupon, the court shall remove the probate referee without any further act or proof.
  • Any other cause provided by statute.




Guide to Fees and Costs In California Probate Tue, 31 Mar 2020 14:44:31 +0000 At the beginning of most California probate matters, a common question is how much is it all going to cost, and who pays for it.  Use this guide as an overview of the usual fees and costs in a California probate.

What Fees are Paid To A California Personal Representative?

A personal representative in California is entitled to compensation for ordinary services provided to the estate.  California Probate Code § 10800.  These fees are also called statutory fees, because they are provided by statute.  The California probate Code also allows for additional fees to be paid for extraordinary services.  California Probate Code §10801.

What Are Considered Ordinary Services of the Personal Representative In California?

As set forth above, fees for ordinary services of the personal representative are set forth by statute.  Ordinary services include marshalling the estate assets, paying claims, locating beneficiaries and heirs of the estate, and preparing the accounting.

How Are Statutory Fees For The Personal Representative Calculated?

The statutory fees for the personal representative are based on the value of the California probate estate accounted for by the personal representative.  The value of the estate accounted for by the personal representative is:

(The total amount of the appraisal value of property in the inventory + gains over the appraisal value on sales + receipts) – (losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.)

Section 10800 sets forth the method of calculating the fee for the personal representative based on the value of the estate accounted for:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9,000,000
  • 0.5% of the next $15,000,000

For any amount over $25,000,000, California Probate Code § 10800(a)(6) allows reasonable compensation as determined by the California Probate Court.

By way of example, if the estate accounted for is valued at $1,600,000, the total statutory compensation fee to the personal representative would be $29,000.

Any agreement between the personal representative and an heir or devisee for higher compensation than that provided is void.  California Probate Code § 10803.

Do Joint Personal Representatives In California Each Get Paid A Full Statutory Fee?

No.  If there are two or more personal representatives, the personal representative’s compensation shall be apportioned among the personal representatives by the court according to the services actually rendered by each personal representative or as agreed to by the personal representatives.  California Probate Code § 10805.

What Are Extraordinary Services of The Personal Representative?

In addition to the compensation provided by Section 10800, the court may allow additional fees compensation for extraordinary services by the personal representative in an amount the court determines is just and reasonable.  California Probate Code § 10801.

Extraordinary services include:

  • Selling real property
  • Continuing Decedent’s business
  • Preparing tax returns or handling tax-related audits or litigation

What Fees Are Paid To the Attorney For The California Personal Representative?

Pursuant to section 10810 of the California Probate Code, the attorney for the personal representative is compensated for ordinary services on the same statutory fee schedule as the personal representative, that is:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9,000,000
  • 0.5% of the next $15,000,000
  • and reasonable compensation as determined by the California Probate Court for any amount above $25,000,000.

The California Probate court may also allow additional compensation for extraordinary services of the attorney for the personal representative.  Extraordinary services of the attorney for the personal representative may include:

  • Ancillary administration
  • Extraordinary effort to find estate assets
  • Defense of a will contested after its admission to probate
  • Litigation undertaken to benefit the estate


How Much Does Probate In California Cost?

In addition to the fees payable to the personal representative and the attorney for the personal representative in a California probate, the actual costs of filing and administering probate must be taken into account for the total cost of probate.

Costs of a California probate include items like filing fees, copies, publication fees, bonds, death certificates, debts of the decedent, and probate referee fees.

Filing fees for various probate petitions vary in amount depending on the type of petition and in what California county the petition is filed in.  Filing fees range from less than $60 to several hundred dollars.

The notice of the initial probate hearing date and time is required to be published in a local newspaper and generally costs around $200.

If a probate referee is required, the probate referee fees will also be a cost of the estate, and will range from $75 to $10,000, depending on the value of the assets appraised.

The total cost of a California probate depends on the size of the estate, the type of assets, and the complexity of the administration.  Of course, if a will contest or other inheritance litigation is initiated in the estate, the fees and costs will increase exponentially.

Attorney’s Fees In Florida Will Reformation and Modification Actions Tue, 31 Mar 2020 11:49:08 +0000 The question at the core of the March 6, 2020 Heritage Foundation v. Estate of Schmid opinion was whether section 733.1061 (2014) precludes an award of attorney’s fees from the corpus of a Florida probate estate in will reformation and modification actions.   The Second District Court of Appeals rejected the assertion that section 733.1061 imposes such a limitation and affirmed the Florida probate court’s award of fees from the corpus of the estate.

The Facts of Heritage Foundation v. Estate of Schmid

Walter Schmid died in 2014 at the age of 91, survived by his only sister, Ida Schmid Thomas, and her descendants – Donnie, her son, and Grace, Donnie’s daughter.   Walter never married and had no children.

In Walter’s 2009 will, Ida was named the personal representative.  Walter divided his estate into 100 shares and apportioned it among 10 different charities (the “Charities”).  Walter’s previous wills made Ida, Donnie, and Donnie’s issue the primary beneficiaries.

The 2009 will was admitted to probate.  Ida, both individually and as personal representative, along with Donnie and his issue, and the trustees of the Walter Schmid Trust (collectively, “Thomas”) moved to revoke or reform the 2009 will.  Thomas argued that the 2009 Will did not reflect Walter’s testamentary intent because it mistakenly omitted a devise to Ida, Donnie, and Donnie’s issue.

After the completion of discovery, Thomas agreed to voluntarily dismiss the petition to revoke or reform the 2009 will.  The Florida probate court entered an order dismissing the petition to revoke or reform and awarded the Charities attorney’s fees pursuant to section 733.1061, Fla. Stat., to be paid from the corpus of the estate.  The court rejected the Charities’ argument that the attorney’s fees should be assessed against Thomas individually, instead of the estate.  The Charities sought review of the attorney’s fee order with respect to the source of the fee award.

Entitlement to Attorney’s Fees and Costs In Florida Will Reformation And Modification Actions

The general statutory authority for attorney’s fees in Florida probate matters can be found in section 733.106, Fla. Stat.  Section 733.106 permits an award of attorney’s fees “as in chancery actions” and provides that: “When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid.”

Section 733.1061, which is entitled “Fees and costs; will reformation and modification,” provides an additional basis for a fee award in conjunction with probate reformation and modification proceedings. That section provides as follows:

(1) In a proceeding arising under s. 732.615 or s. 732.616, the court shall award taxable costs as in chancery actions, including attorney’s fees and guardian ad litem fees.

(2) When awarding taxable costs, including attorney’s fees and guardian ad litem fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, [*6]  or both.

Subsection 733.1061(1) includes the same provision as section 733.106(1) providing for the award of attorney’s fees “as in chancery actions.”

Section 733.1061 governing fees in will reformation and modification actions is different than section 733.106 in that it permits the Florida probate court to impose personal liability for attorney’s fees, allowing an award against “other property” of the party.

Does Section 733.1061 Prohibit An Award Of Attorney’s Fees From The Estate Corpus?

No.  Section 733.1061 does not limit the sources of payment to a party’s interest in the estate, other property of the party, or both.

The plain language of this subsection clearly provides the probate court with the discretion to direct payment of attorney’s fees from the interests that are listed. Although the legislature did not reiterate the probate court’s authority to award attorney’s fees from the corpus of the estate in section 733.1061(2), that authority is inherent in the court’s in rem jurisdiction as reflected by the language in section 733.1061(1), allowing it to award fees “as in chancery actions.”

Section 733.061 grants the court discretion to choose all or any of the listed sources for payment of fees: from a party’s interest in the estate, other property of the party, or both.  The use of the word “may” indicates that these sources may bear an attorney’s fee award, not that these sources must.  Thus, the plain language of section 733.1061 does not limit the sources of payment to a party’s interest in the estate, other property of the party, or both.  The court stated:

If we were to limit the sources of payment in section 733.1061(2) to those specifically listed, then the statute would preclude the award of attorney’s fees to a prevailing beneficiary when the estate was the only opposing party. This would be inconsistent with section 733.1061(1)’s mandate that the court “shall award taxable costs as in chancery actions, including attorney’s fees.” (Emphasis added.); see Wheaton, 261 So. 3d at 1243 (holding that the word “shall” is a mandatory term).

For more information about attorney’s fees, read the Complete Guide to Attorney’s Fees in Florida Probate.

Alabama Probate Court Has No Jurisdiction To Alter Circuit Court Judgment Mon, 30 Mar 2020 20:19:56 +0000 In the March 2020 opinion of Ex parte Huntingdon College, the Alabama Supreme Court directed an Alabama probate court to vacate an order that nullified a circuit court judgment on the basis that the probate court lacked jurisdiction.

The Facts Of Ex Parte Huntingdon College

Huntingdon College is a beneficiary of the Bellingrath-Morse Foundation (“Foundation”) established by Walter Bellingrath.

Bellingrath contributed to the Foundation from inception and through his will and codicil.   The contributions included property, including Bellingrath Gardens (the “Gardens”) and Coca-Cola stock.  The beneficiaries included three private Christian colleges, including Huntingdon.

Alabama Circuit Court Enters A Final Judgment

The Foundation’s trustees and beneficiaries historically disagreed about whether the Trust contemplated the subsidy of the Gardens by the Foundation.  In 1981 a settlement agreement (“Agreement”) was executed which outlined a framework for managing the Foundation and operating the Gardens.  The Agreement was amended in 2003 to address, in part, some of the funding issues.  The Mobile Circuit Court entered a final judgment approving the 2003 Amendment.

Alabama Probate Court Enters An Order Effectively Nullifying the Circuit Court Judgment

In August 2017, the trustees filed a petition in the Mobile Probate Court.  The trustees asked the probate court for emergency and declaratory relief, asserting that their ability to maintain the Gardens was impaired by the funding restraints in the Agreement and 2003 Amendment.  The trustees requested that the Mobile probate court issue emergency instructions as to how the existing funding agreement should be revised.

The beneficiaries moved to dismiss the trustees’ action in the probate court.  The beneficiaries argued that the trustees’ action was a collateral attack on the judgment approving the 2003 Amendment and that a collateral attack could only be brought in the court in which the prior judgment rendered (in this case, the Mobile Circuit Court).

The Mobile Probate Court entered an order concluding it had jurisdiction of the trustees’ action and purporting to render a decision in favor of the trustees.   The Mobile Probate Court essentially declared that the trustees were no longer bound by the 2003 Amendment capping the funding of the Gardens, effectively rendering the 2003 final judgment entered by the Mobile Circuit Court void.

Huntingdon petitioned the Alabama Supreme Court for a writ of mandamus directing the Mobile Probate court to vacate its order denying Huntingdon’s motion to dismiss an action filed by the Foundation’s trustees, and to enter an order dismissing the action for lack of jurisdiction.  The Alabama Supreme Court granted the petition and issued the writ.

Does An Alabama Probate Court Have Jurisdiction to Alter A Final Judgment of A Circuit Court?

No, because the petition in the probate court was really an impermissible collateral attack of the Alabama circuit court’s judgment.  The Alabama Supreme Court stated:

Although the trustees maintain that their petition for emergency instructions filed in the probate court seeks a declaration as to the purposes of the Foundation and the trustees’ proper responsibilities relating to those purposes, there can be no rational dispute that the trustees’ ultimate goal in filing their petition was to attack the 2003 Amendment and the final judgment of the Mobile Circuit Court approving the 2003 Amendment–in an attempt to substantially alter the agreed-upon and accepted limitation on funds available for the Gardens. As indicated, the trustees expressly asserted in their petition that their ability to financially support the Gardens had been substantially impaired by the restraints of the 1981 Agreement and the 2003 Amendment, and they requested, among other things, emergency instructions as to how the “existing funding agreement should be revised.” There is no question that their request was a collateral attack on the judgment approving the 2003 Amendment.

What Is An Impermissible Collateral Attack On A Judgment Under Alabama Law?

An impermissible collateral attack on a judgment under Alabama law has been summarized as follows:

“It is well settled in Alabama that the judgment of a court that has jurisdiction of the subject matter and the parties and possesses the power to render the particular judgment is immune from collateral attack.” Greene v. Thompson, 554 So.2d 376, 380 (Ala. 1989)  [**5]  (citations omitted). “[A] collateral attack on a judgment is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment.” Black’s Law Dictionary 237 (5th ed. 1979).

Here, because the trustees were seeking to alter the circuit court’s judgment, they were required to file a motion for relief from that judgment in the circuit court pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure.

Rather than filing a Rule 60(b) motion for relief from the judgment in the circuit court, the trustees initiated an entirely new proceeding in the probate court seeking review of the entirety of the Foundation, its operations, and its distributions, as if the previously negotiated 1981 Agreement and 2003 Amendment were of no effect.  This action was procedurally improper as a matter of law, and the Alabama probate court had no jurisdiction to alter the judgment of the Alabama circuit court.