Probate Stars Find a Probate Lawyer in all 50 States Fri, 21 Feb 2020 22:00:48 +0000 en-US hourly 1 Who Can Petition For Probate In New York? Sat, 22 Feb 2020 06:45:43 +0000 The persons allowed to petition for probate in New York differ between a testate (decedent had a will) and intestate (decedent did not have a valid will) estate.

Who Can Petition for Probate Of A Will In New York?

New York’s Surrogate’s Court Procedure Act (SCPA)  section 1402 states that a petition for probate of a will in New York may be presented by:

  • Person named in the will as legatee, devisee, fiduciary or guardian
  • Guardian of an infant legatee or devisee
  • Conservator of a legatee or devisee
  • Creditor of the estate
  • Public Administrator or the County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted.

The Nominated Executor Is Usually The Person Who Offers The Will For Probate

In practice, the person nominated to serve as the executor under the will is the person who offers the will for probate.

If there is more than one executor nominated in the will, they can petition the court together.  If just one of them petitions, then oaths and designations can be submitted by the other(s).

Who Can Petition for Probate Of An Intestate Estate?

New York SCPA section 1002 enumerates those persons entitled to petition for probate appointment of an administrator in an intestate estate:

  • Interested persons in the estate
  • An assignee of a person interested in the estate
  • A person consented to be all distributees
  • Public administrator
  • Chief Fiscal officer of the county
  • Creditors
  • Person involved in an action in which the decedent is a party

Who Is a “Person Interested” In a New York Estate?

New York SCPA section 103(39) defines a “person interested” as:

Any person entitled or allegedly entitled to share as beneficiary in the estate or the trustee in bankruptcy or receiver of such person.  A creditor shall not be deemed a person interested.  Where this act provides that a “person interested” may apply for relief, a verified allegation of an interest in fact, suffices for the purpose of the application, although the interest may be disputed, unless or until the fact of interest has been judicially determined and no appeal is pending therefrom.

Who is Entitled to Serve As Administrator of An Intestate Estate?

For a petition for probate filed in a New York intestate estate, pursuant to New York SCPA section 1001, letters of administration must be granted in the following order to those persons who are eligible and qualify:

(a) the surviving spouse,

(b) the children,

(c) the grandchildren,

(d) the father or mother,

(e) the brothers or sisters,

(f) any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, except as hereinafter provided:

(i) Where there are eligible distributees equally entitled to administer the court may grant letters of administration to one or more of such persons.

(ii) If the distributees are issue of grandparents, other than aunts or uncles, on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county.


Islamic Marriage Held Invalid in England and Wales Fri, 21 Feb 2020 20:45:38 +0000 The Court of Appeal of England and Wales ruled, in February, 2020 that a marriage performed in England under Islamic law, without following English law, is not valid. (The Court of Appeal for England and Wales is the highest court for England and Wales, second in authority to the Supreme Court of the United Kingdom).

What is Islamic Marriage?

In Islamic law, marriage is called Nikah (“نِكَاح‎”), an Arabic word used in the Quran to refer to the contract of marriage.  The contract can be in writing or can be verbal.  Islamic marriages require acceptance of the groom, the bride and the consent of the custodian, known as the wali, of the bride. The wali of the bride is normally a male relative of the bride, preferably her father. In non-Islamic countries, an Islamic marriage would normally be performed while following local civil law, such as obtaining a marriage license, and ensuring that the Imam is legally allowed to perform marriages in the jurisdiction.

Is an Islamic Marriage Performed in England Valid Without Following English Law?

No, an Islamic marriage performed in England without complying with civil legal formalities will be treated as non existent and not valid.

In H.M. Attorney General v. Akhter and Khan, the couple was married in an Islamic ceremony and intended to follow up with a civil marriage ceremony compliant with English law.  That civil ceremony did not take place.

A person’s marital status is important for them and for the state. The status of marriage creates a variety of rights and obligations. It is that status alone, derived from a valid ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship. It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally valid. If they might not have done so, they risk being unable to participate in and benefit from the rights given to a married person.

The answer to the question of whether a person is recognised by the state as being validly married should be capable of being easily ascertained. Certainty as to the existence of a marriage is in the interests of the parties to a ceremony and of the state. Indeed, it could be said that the main purpose of the regulatory framework (summarised below), since it was first established over 250 years ago, has been to make this easily ascertainable and, thereby, to provide certainty.

The Court explained the requirements under English law to have a valid marriage, commenting:

Although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status.

The appeal addressed whether the Islamic marriage was a legal valid marriage, and, if not, whether it was a “nonqualifying ceremony,” such that it would be considered legally non existent, or the ceremony created a void marriage.  The Court explained the difference:

The most significant practical difference is that a non-marriage creates no separate legal rights, while a decree of nullity [from a void marriage] entitles a party to apply for financial remedy orders under the 1973 Act.

The 1973 Act provides for divorce-like remedies to persons in a void marriage that is subsequently nullified.

There was no dispute that the Islamic ceremony did not create a valid marriage under English law.  The issue on appeal was whether the Islamic ceremony created a void marriage that could be nullified, with effect under the 1973 Act, or was essentially non existent under law.  If the ceremony were held to be legally irrelevant, no decree of nullity could be issued, and no financial remedies under the 1973 Act could be awarded.

The Court held that there can be ceremonies – which the Court referred to as “nonqualifying ceremonies” – that do not create a marriage, or even a void marriage, under English law and so do not entitle a party to a decree of nullity or financial remedies.

The Court then held that the December 1998 Nikah ceremony did not create even a void marriage because it was a non-qualifying ceremony.

We have reached the clear conclusion that the December 1998 ceremony did not create a void marriage because it was a non-qualifying ceremony. The parties were not marrying “under the provisions” of Part II of the 1949 Act. The ceremony itself would have been permitted under s. 44 if it had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of s. 26 of the 1949 Act. We would also add that the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 Act if they were
to be validly married.

Does the United States Constitution Require That an Islamic Marriage Performed in the United States, Without Following Local Law, Be Recognized?

No.  An Islamic marriage performed in the United States, in the absence of valid civil formalities, does not require recognition.  In a dispute over whether the City of Baltimore could refuse spousal health care coverage to a purported spouse from an Islamic marriage ceremony, the Fourth Circuit, in Abdus-Shahid v. Mayor of Baltimore, 674 F. App’x 267 (4th Cir. 2017), explained:

Instead, he maintains that the City’s policy is not neutral toward religion because it has the effect of prohibiting Abdus-Shahid from enrolling Jones for insurance coverage despite her being his spouse based on an Islamic marriage ceremony. But that is not the test for neutrality. The Supreme Court has held that a law lacks neutrality if it “target[s] religious beliefs” or if its “object . . . is to infringe upon or restrict practices because of their religious motivation.” The City’s policy is silent as to religion or religious practice and thus is facially neutral.

The City allows individuals of all faiths or of no specific faith to enroll a spouse for coverage upon presenting a civil marriage certificate. In so doing, it simultaneously bars all employees from enrolling an individual as his or her spouse if that employee cannot provide the required documentation, regardless of the reason. See Liberty Univ., Inc. v. Lew, 733 F.3d 72, 99 (4th Cir. 2013) (observing that a neutral law of general applicability will have “no object that infringes upon or restricts practices because of their religious motivation and impose no burden . . . on conduct motivated [only] by religious belief”).

Can an Islamic Marriage Without Civil Formalities Be Valid Under New York Law?

The case of Matter of Farraj, 72 A.D.3d 1082, (2010 App. Div.), holds that New York will recognize an Islamic marriage even if no proper formalities are followed, and even if performed in a location where the marriage would be deemed void. In this estate case, the husband had been a resident of New York, and his wife of New Jersey.  The husband and an Imam travelled from New York to New Jersey for the wedding ceremony.  No marriage license was obtained, and the couple moved to New York where they lived together until the Decedent died.

In holding that the spouse would be treated as a surviving spouse under New York law, the Court reasoned as follows:

Under the law of the State of New Jersey, the failure to obtain a marriage license renders a purported marriage absolutely void.  In New York, * * * a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized. A marriage is solemnized where the parties “solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” Therefore, if New Jersey law is applied to determine the validity of the marriage between the petitioner and the decedent, the marriage is void. If New York law is applied, the marriage is valid.

The general rule is that the legality of a marriage “is to be determined by the law of the place where it is celebrated.” The Restatement (Second) of Conflict of Laws § 283, however, provides a more flexible approach, whereby “[t]he validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage” (Restatement [Second] of Conflict of Laws § 283 [1]). We look to the Restatement (Second) of Conflict of Laws § 283 for guidance in determining which law should govern the validity of the marriage at issue here.

The petitioner and the decedent had a justified expectation that they were married, since they participated in a formal marriage ceremony in accordance with Islamic law. The only reason the petitioner and the decedent had their marriage ceremony in New Jersey was because, under Islamic law, the marriage ceremony was to be conducted in the residence of the bride’s eldest male relative, which was the petitioner’s brother. In addition, the intended and actual matrimonial domicile was New York, and the petitioner and the decedent held themselves out as a married couple in New York. Therefore, New York has a significant interest in the marriage between the petitioner and the decedent. While New Jersey has an interest in enforcing its marriage requirements, this interest is not particularly strong here, since the petitioner and the decedent left New Jersey immediately after the marriage ceremony, and lived in New York for the entirety of their marriage.

Does Comity Allow Recognition of an Islamic Marriage Performed Outside the Jurisdiction?

Yes, under principles of comity, a common law jurisdiction will normally recognize an Islamic marriage performed in a country that recognizes an Islamic marriage as a valid marriage.

Comity is the principle that one sovereign nation will give legal effect to judgments and rulings of another sovereign nation.  As explained by the United States Supreme Court in the seminal comity case of Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895):

The literal meaning of the word “comity” is “courtesy” — a disposition to accommodate — but the word is seldom employed, in jurisdical discussions, in that sense. [T]he inquiry, therefore, what comity is, is only another mode of inquiring what the law is in respect to the force which the laws, judicial proceedings or other acts done in one State ought to have in another State.

It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them, according to the law of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy, or prejudicial to its interests.

Maryland’s highest court, in Port v. Cowan, 426 Md. 435, 44 A.3d 970 (2012), explained the application of comity to marriages performed in another country (citations omitted):

Under the doctrine of comity, long applied in our State, Maryland courts “will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect.”  When considering a foreign marriage specifically, Maryland courts follow the choice-of-law rule of lex loci celebrationis, applying the substantive law of the place where the contract of marriage was formed.

Generally, Maryland courts will honor foreign marriages as long as the marriage was valid in the state where performed.  There are two exceptions to this rule: the foreign marriage may not be “repugnant” to Maryland public policy and may not be prohibited expressly by the General Assembly.  [T]he State is not bound to give effect to marriage laws that are repugnant to its own laws and policy. Marriages that are tolerated in another state but are condemned by the State of Maryland as contrary to its public policy will not be held valid in this State.

Can a Civil Union From a Country With Religious Marriage Only Be Recognized in the United States?

The importance of comity cannot be understated with respect to determining whether a marriage from another country will be recognized in the United States.  There are countries where only religious marriages are recognized – if you cannot comply with the religious requirements to be married, you cannot marry.  At least one such country, Israel, allows those who wish to live as husband and wife to do so in a version of a civil union.  Civil unions thusly serve a critical role in providing some legal legitimacy for couples who, for whatever reason, are unable or unwilling to marry under the religious rules in place in those countries.

Florida recently was faced with the issue of whether an Israeli civil union arrangement, known as a “known in public” relationship, would be treated as a valid marriage in Florida.  In the Cohen v. Shushan case, a Florida appellate court held that such “known in public” unions are not a marriage under Florida law.

[U]nder principles of comity a marriage by citizens of a foreign country, if valid under foreign law, may be treated as valid in Florida * * *  Conversely, if a purported marital relationship in a foreign jurisdiction would be deemed invalid in that jurisdiction, it must be deemed invalid here.



Can A Guardian Terminate Life Support Without Court Approval? Fri, 21 Feb 2020 17:37:43 +0000 The New Hampshire Supreme Court, in In Re Guardianship of L.N., determined that a New Hampshire guardian of the person has the power to terminate life-sustaining treatment and life support, in appropriate circumstances, without court approval.

The Facts of The Case

L.N. suffered a massive stroke.  Thereafter, L.N. remained in the hospital on a ventilator to assist with breathing and a nasal-gastric tube for nutrition and hydration.  However, there was no one with authority to act with respect to her care, and no evidence that L.N. had executed a living will or a durable power of attorney for healthcare.

Guardianship petitions were filed.  L.N. was found incapacitated after hearing and her friend, M.C., was appointed guardian of the person and estate.  In the order appointing, the court deferred ruling on whether the guardian should be granted authority to terminate L.N.’s life support, and expressly stated that the guardian did not have the authority to terminate life support under New Hampshire law.

A subsequent hearing was held on the authority to terminate life support.  The evidence presented and opinions of medical professionals were offered as follows:

  • L.N. was not showing any signs of higher cortical functions, awareness, and did not have any realistic possibility of a meaningful recovery.
  • The most positive outcome for L.N. would be a persistent vegetative state.
  • L.N. could spontaneously blink, open her eyes, and grimace, but was not reacting to her environment or communicating at even the most basic level.
  • Damage to L.N.’s brain was irreversible.
  • The hospital neurologists agreed that L.N. had a very poor prognosis for neurologic recovery.

The New Hampshire probate court ruled that the authority granted by statute to a guardian over the person “does not include the authority to remove a ward from life support without Court approval.”   The court stayed the decision regarding the guardian’s authorization to remove life support.

The next month, the New Hampshire probate court issued a further order on the motion to authorize removal of life support.  As summarized by the New Hampshire Supreme Court:

The court first “presume[d] that [L.N.] would have directed her healthcare providers to provide her with resuscitation, hydration and nutrition to a degree sufficient to sustain her life, subject to scenarios where the presumption would not apply.” The court then found that “it has not been shown by clear and convincing evidence that [L.N.] would have rejected artificial nutrition and hydration and resuscitation. It has also not been shown by clear and convincing evidence that [L.N.] is in a permanent vegetative state or that her movements are only reflexive.” The court concluded that, “in cases of doubt, the Court must assume that the patient would choose to defend life” and did “not find that [L.N.] — under the facts in this case — would choose to have life support removed and a natural death process to occur.”

The guardian, on behalf of L.N., appealed to the New Hampshire Supreme Court.

A Guardian’s Powers Under New Hampshire Law

RSA 464-A:25 provides in relevant part:

A guardian of an incapacitated person has the following powers and duties, except as modified by order of the court:

. . . .

(d) A guardian of the person may give any necessary consent or approval to enable the ward to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment, provided, that the court has previously authorized the guardian to have this authority, which authority shall be reviewed by the court as part of its review of the guardian’s annual report. No guardian may give consent for psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the probate court.

Here, L.N. argues that termination of life support is not one of the four specific categories requiring prior approval by the probate court.

The New Hampshire Supreme Court narrowly defined the issue on appeal as whether the probate court’s conclusion that the statutory authority granted to a guardian over the person under RSA 464-A:25 does not include the authority to remove a ward from life support without Court approval.

Does the General Authority Of A Guardian Include The Authority To Terminate Life Support?

Yes.  In the appropriate circumstances, the general authority of a guardian under RSA 464-A:25 includes the authority to terminate life support.

First, the New Hampshire Supreme Court declined to distinguish between authority regarding relatively minor and relatively major decisions.  The court cited to numerous decisions from other states, stating:

Other jurisdictions have similarly interpreted general provisions in their guardianship or conservatorship statutes, particularly those empowering the guardian or conservator to make medical decisions for a ward, as empowering the guardian or conservator to withdraw life-sustaining treatment in appropriate circumstances.

Second, the Court looked to RSA 464-A:25, I(e), which provides:

If a ward has previously executed a valid living will, under RSA 137-J, a guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity in such document. If a ward has previously executed a valid durable power of attorney for health care, RSA 137-J shall apply.

The court found that this language implies that the guardian has the authority to make decisions in that regard (end of life decisions) on behalf of the ward.

Is Prior Court Approval Required To Exercise A Guardian’s Power to Terminate Life Support?

No.  Under the plain language of RSA 464-A:25, judicial involvement is not required.  Life sustaining treatment is not one of the four categories of treatment requiring court approval.    Excluding the ability to terminate life sustaining treatment indicates that the legislature did not intend to require prior approval for any other procedures not mentioned.

As other courts addressing end-of-life decision-making for incompetent patients have observed, “[c]ourts are not the proper place to resolve the agonizing personal problems that underlie [*20]  these cases,” Matter of Jobes, 529 A.2d 434, 451 (N.J. 1987), and “the judicial process [is] an unresponsive and cumbersome mechanism for decisions of this nature,” Matter of Welfare of Colyer, 660 P.2d 738, 746 (Wash. 1983) (en banc); see also Matter of Guardianship of L.W., 482 N.W.2d 60, 75 (Wis. 1992) (citing Matter of Welfare of Colyer and Matter of Jobes). The Kentucky Supreme Court has concluded that “it would be logistically impossible to require court approval of every decision to withhold or withdraw life-prolonging treatment.” Woods v. Com., 142 S.W.3d 24, 49 (Ky. 2004).

What Constitutes “Appropriate Circumstances” To Terminate Life Support?

The New Hampshire Supreme Court declined to decide what standard might apply when a guardian’s decision to remove life support is challenged in court.  However, the court did discuss the various approaches used by other states, specifically the substituted judgment approach, a best interests approach, or some combination of the two.

Substituted Judgment

Under the substituted judgment approach, a surrogate decision maker attempts to establish what decision the patient would make if the patient were competent to do so.

Best Interests Approach

Under the best interests approach, a surrogate decision maker chooses what procedures would be in the patient’s best interests.

Here, the Court noted that the established standards governing fiduciaries apply to guardians.  In addition, a guardian’s authority is neither granted nor exercised without safeguards.  For instance, the decision to remove life support requires implementation by medical personnel, who operate under their own set of legal, as well as professional and ethical, constraints.

The Court concluded that the general power granted to the guardian by statute includes the power to terminate life support and  life-sustaining treatment, in appropriate circumstances, without court approval.

Accordingly, the guardian “may give any necessary consent or approval to enable [L.N.] to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment,” including life-sustaining treatment, but excluding “psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind,” without prior court approval.


Family Allowance In California Probate Fri, 21 Feb 2020 15:00:17 +0000 A family allowance is one of the rights granted to certain family members during a California probate.

What is a Family Allowance In California Probate?

A family allowance is a court-authorized amount payable to certain of a California decedent’s family members.

The purpose of the family allowance is to continue, during settlement of the estate, the support of the surviving spouse (or eligible child) that he or she was receiving or was entitled to receive during the decedent’s life.  Estate of Wallace, 74 Cal. App. 3d 196 (1977)

Who Is Entitled To A Family Allowance Under California Probate Law?

California Probate Code Section 6540 lists those family members that are entitled to a family allowance and states:

(a) The following are entitled to such reasonable family allowance out of the estate as is necessary for their maintenance according to their circumstances during administration of the estate:

(1) The surviving spouse of the decedent.

(2) Minor children of the decedent.

(3) Adult children of the decedent who are physically or mentally incapacitated from earning a living and were actually dependent in whole or in part upon the decedent for support.

(b) The following may be given such reasonable family allowance out of the estate as the court in its discretion determines is necessary for their maintenance according to their circumstances during administration of the estate:

(1) Other adult children of the decedent who were actually dependent in whole or in part upon the decedent for support.

(2) A parent of the decedent who was actually dependent in whole or in part upon the decedent for support.

(c) If a person otherwise eligible for family allowance has a reasonable maintenance from other sources and there are one or more other persons entitled to a family allowance, the family allowance shall be granted only to those who do not have a reasonable maintenance from other sources.

The family allowance is basically permitted for those family members that relied on the California decedent for support, and who actually need the support.  The length of a marriage is not relevant for purposes of determination of a family allowance for a surviving spouse.

How Much is The Family Allowance?

The amount of the family allowance can vary.  The statute simply requires that the amount of the family allowance be “reasonable” and as is necessary for maintenance according to their circumstances during administration of the estate.

Who Pays The Family Allowance?

The family allowance gets paid out of the general assets of the estate.  A family allowance therefore can interfere with the payment of bequests under the will if the payments go on long enough and deplete the estate assets so that other bequests cannot be paid.

The costs of family allowance proceedings are paid by the estate as expenses of administration pursuant to California Probate Code section 6544

How Long Does The Family Allowance Last?

The family allowance may continue until the judge enters the final order distributing the assets of the decedent’s estate, or, if the estate’s liabilities are greater than the estate’s assets, up to one year after letters of administration are issued to the executor of the estate.  California Probate Code Section 6543 states that:

(a) A family allowance shall terminate no later than the entry of the order for final distribution of the estate or, if the estate is insolvent, no later than one year after the granting of letters.

(b) Subject to subdivision (a), a family allowance shall continue until modified or terminated by the court or until such time as the court may provide in its order.

Pursuant to California Probate Code section 6542, the allowance may not be made retroactive to a date earlier than the date of the decedent’s death.

What is The Deadline To File For Family Allowance In California?

The family allowance must be petitioned for during the estate administration.  The California Probate Code imposes different notice requirements in certain situations.  For a complete chart of deadlines and timelines in California probate, click here.

Family Allowance For Surviving Spouse, Minor Children, Or Dependent Adult Children

Pursuant to California Probate Code section 6541, if an order for family allowance is made for the surviving spouse, minor children, or dependent adult children, an order for family allowance can be made or modified prior to the filing of the inventory on an ex parte basis or after notice of hearing on the petition.

After the inventory is filed, the order may be made or modified only after notice of the hearing on the petition has been given.

Family Allowance for Other Adult Children or Parent of Decedent

Pursuant to section 6541, an order for the family allowance for other adult children or parents of the decedent may be made only after notice of the hearing on the petition has been given as provided in Section 1220 to all of the following persons:

(1) Each person listed in Section 1220.

(2) Each known heir whose interest in the estate would be affected by the petition.

(3) Each known devisee whose interest in the estate would be affected by the petition.

Can I Appeal An Order Granting or Denying Family Allowance?

Yes.  An order of family allowance made during a California probate administration can be appealed.

However, an appeal does not stay the probate proceedings or the enforcement of the order appealed if the person in whose favor the order is made gives an undertaking in double the amount of the payment or payments to be made to the person.  See California Probate Code section 6545.

Removal Of A Trustee In Texas Thu, 20 Feb 2020 21:00:08 +0000 Removal of a Texas trustee can occur for a variety of reasons.  Some of the grounds are obvious, like the trustee became incapacitated or failed to account.  In Ramirez v. Rodriguez, a February 2020 case from a Texas appellate court, the court analyzed the alleged grounds for removal of a trustee for cause based upon ill will and hostility, which is not such a clear cut determination.

What Are The Grounds For Removal of A Trustee Under the Texas Trust Code?

Section 113.082 of the Texas Trust Code addresses the removal of a trustee and states:

(a) A trustee may be removed in accordance with the terms of the trust instrument, or, on the petition of an interested person and after hearing, a court may, in its discretion, remove a trustee and deny part or all of the trustee’s compensation if:

(1) the trustee materially violated or attempted to violate the terms of the trust and the violation or attempted violation results in a material financial loss to the trust;

(2) the trustee becomes incapacitated or insolvent;

(3) the trustee fails to make an accounting that is required by law or by the terms of the trust; or

(4) the court finds other cause for removal.

(b) A beneficiary, cotrustee, or successor trustee may treat a violation resulting in removal as a breach of trust.

(c) A trustee of a charitable trust may not be removed solely on the grounds that the trustee exercised the trustee’s power to adjust between principal and income under Section 113.0211.

Is Ill Will Or Hostility Grounds For Removal?

Yes, if such ill will or hostility affects the performance of the trustee and administration of the Trust.

Ill will or hostility between a trustee and the beneficiaries of the trust, is, standing alone, insufficient grounds for removal of the trustee from office.  However, a trustee will be removed if his hostility or ill will affects his performance.

In Ramirez, the Texas appellate court considered what evidence constitutes clear and specific evidence supporting a prima facie case of removal under section 113.082(a)(4) for “other cause,” the cause alleged being hostility between the trustees.

The Trust had four trustees – Sonia, Victor, Javier, and Santiago.

The Trust contained a provision that any action on behalf of the Trust required the joinder of three of the four co-trustees.  It is not uncommon for a Trust to contain a provision requiring that the majority of trustees participate or agree to any action.  Indeed, the Texas Trusts Code, section 113.085, states  that “Cotrustees may act by majority decision,” and requires a cotrustee to participate in the administration of the trust unless the cotrustee is unavailable or has delegated the performance of the function to another trustee.

In this case, cotrustee Santiago and Ancient Sunlight, Ltd. (one of the Trust’s beneficiaries of which Santiago was the general partner) sued cotrustee Sonia for breach of fiduciary duty and breach of trust.   Sonia, Victor, and Javier filed a petition to remove Santiago as a co-trustee pursuant to the terms of the Trust and section 113.082(a)(4) of the Texas Trust Code.”  The Petition alleged numerous examples of ill will and hostile behavior committed by Santiago.

Santiago moved to dismiss, pursuant to the Texas Citizens Participation Act.  The Texas appeals court addressed whether Sonia, Victor, and Javier established a prima facie case for removal of trustee Santiago by clear and specific evidence.

What Constitutes Sufficient Evidence To Remove A Trustee?

The court determined that the evidence presented was c clear and specific that Santiago’s hostility was impeding his performance as a co-trustee and the performance of the Trust.

The court considered numerous exhibits attached to Sonia, Victor, and Javier’s filings, including:

  • Santiago sending unilateral letters to the Texas State Board for Public Accountancy on Behalf of the Trust challenging invoices already approved by the other three trustees;
  • Victor informing the Trust attorneys that Santiago does not represent the unanimity and consensus of 3 of the 4 trustees;
  • Santiago’s emails to other individuals about Sonia’s incapacity and stating that Sonia’s husband “lies, cheats, and steals from their hocked home-vault”;
  • Emails from individuals stating that Santiago is unable to work with the other co-trustees, is sabotaging Trust operations, and is following his own disruptive agenda;
  • Santiago informing a third party about dysfunction within the family and encouraging the third party to consult the “null and void” clause in the Trust.

Based on this evidence, the majority of trustees presented a prima facie case under Texas law for removal of the trustee, and the court held that Santiago’s motion to dismiss was properly denied.

As stated by the court:

Removal actions prevent a trustee from engaging in further behavior that could potentially harm the trust. Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future. At the very least, such prior conduct might lead a court to conclude that the special relationship of trust and confidence remains compromised.


Do You Need Personal Jurisdiction to Sue a Trustee in Ohio? Thu, 20 Feb 2020 18:56:54 +0000 Yes, personal jurisdiction in Ohio is required to sue and bring a lawsuit against a trustee in Ohio.

What is Personal Jurisdiction?

Personal jurisdiction is required to bring a lawsuit against someone.  Does the court have jurisdiction over the person being sued such that the defendant may be properly sued in that jurisdiction.  The United States Supreme Court, in the seminal personal jurisdiction case of International Shoe Co. v. Washington, 326 U.S. 310 (1945) held that a defendant must have a threshold amount of “minimum contacts” within a state to be sued in that state:

Historically, the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence, his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Whether due process is satisfied must depend, rather, upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.

What is Required for Personal Jurisdiction in Ohio?

Every state has statutes that set forth the minimum contacts necessary for a court sitting in that state to have personal jurisdiction over a defendant.  Ohio’s personal jurisdiction statute is set forth at Section 2307.382, as follows:

(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s:

(1) Transacting any business in this state;

(2) Contracting to supply services or goods in this state;

(3) Causing tortious injury by an act or omission in this state;

(4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he might reasonably have expected such person to use, consume, or be affected by the goods in this state, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state;

(7) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity.

(8) Having an interest in, using, or possessing real property in this state;

(9) Contracting to insure any person, property, or risk located within this state at the time of contracting.

(B) For purposes of this section, a person who enters into an agreement, as a principal, with a sales representative for the solicitation of orders in this state is transacting business in this state. As used in this division, “principal” and “sales representative” have the same meanings as in section 1335.11 of the Revised Code.

(C) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.

How to Obtain Personal Jurisdiction Over a Trustee in Ohio

The determination whether an Ohio trial court has personal jurisdiction over an out-of-state defendant requires a two-step inquiry. First, the court must determine whether the defendant’s conduct falls within Ohio’s long-arm statute or the applicable civil rule. If it does, then the court must consider whether the assertion of jurisdiction over the nonresident defendant would deprive the defendant of due process of law under the Fourteenth Amendment to the United States Constitution.

Schwab v. Schwab, 2020-Ohio-560 (Ct. App.).  The Schwab case sets forth the necessity of having personal jurisdiction over a trustee of a trust to sue the trustee in Ohio.  David Schwab was a beneficiary of a trust and a member of a 3-member advisory committee that was charged with directing the trustee.  The trustee was Huntington Bank, and then Home Savings Bank.  Home Savings Bank issued a check to David Schwab , as trustee of the Schwab Irrevocable Trust.  David was unable to determine the taxpayer identification number for the trust, so deposited the check in a personal account at the direction of the settlor of the trust, his father.

David’s sister, Mary, sued David for breach of trust.  Mary’s sole argument in support of personal jurisdiction to sue the trustee in Ohio was the deposit into his personal bank account of the check.  David lived in Fort Myers, Florida and deposited the check into a Florida bank account.  The check was drawn from an account in Ohio.

In ruling that Ohio had no personal jurisdiction over David, the court ruled as follows:

Upon review,  we do not find the mere act of receiving a check, which contained an Ohio address and may or may not have been sent from Ohio, by Appellee in Florida, without evidence of any solicitation or further involvement by Appellee, amounts to “transacting business” in the state of Ohio for purposes of exercising personal jurisdiction over Appellee pursuant to Ohio’s long-arm statute.

Unfortunately, the trial court issued its ruling in the form of a directed verdict after a jury trial. That ruling was affirmed on appeal.  Mary, the plaintiff, would have spent a great deal of money on attorney fees in discovery, motion practice, and the trial.  The lesson from the Schwab case is that having a solid basis for personal jurisdiction over a defendant is critical – because the lack of personal jurisdiction can destroy an otherwise valid claim against a defendant.  To be clear, the trial court also issued a directed verdict on the substance of the claim, and held that there was no breach of fiduciary duty.

A directed verdict is requested after the close of the presentation of evidence in a jury trial, but before the jury is handed the case to decide.  The judge overseeing the case makes a determination as to whether the law and/or the facts should even permit the case to be decided by the jury.


Both Personal Representatives Required to Sue on Behalf of Estate in Massachusetts Wed, 19 Feb 2020 18:04:16 +0000 A 2020 case from Massachusetts explains the importance of standing sue, especially when personal representatives of estates are involved.  The Massachusetts case, Fisher v. Fisher, 2020 Mass. LCR LEXIS 24 (Land Ct. Feb. 14, 2020), requires that both personal representatives must  sue in order to pursue the lawsuit, and had the following facts:

  • Donald and Ardell were married.
  • Donald and Ardell had two children – Graeme and Cameron.
  • Donald and Ardell owned their home as tenants by the entireties.
  • Donald and Ardell conveyed their home to Cameron, as a gift. Graeme will allege that the gift was the result of undue influence.
  • Ardell then died.  Graeme and Cameron were appointed co-personal representatives of Ardell’s estate.
  • Donald then died.  The court appointed an attorney to be the personal representative of Donald’s estate.
  • Graeme brings suit to void the gift deed on behalf of Ardell’s estate, claiming undue influence.

How to Void a Deed Procured by Undue Influence When Property Was Owned With Rights of Survivorship

When property was owned with rights of survivorship and is then jointly transferred to an (alleged) undue influencer, standing is tricky after the first owner dies.  Standing requires a litigant to show, absent the undue influence, that the litigant would benefit.  At the death of the first owner, property owned with survivorship rights would have become the property of the survivor, had the undue influence deed not been executed.  So, in order to void a deed where the property was jointly owned, suing on behalf of only the first owner to die is pointless – because if the signature on the deed of the first-to-die is void, the property would have ended up being owned by the surviving owner. It is the surviving owner (or the personal representatives of his Massachusets estate) that has the standing necessary to sue to void a deed for property that had been jointly owned.

As explained by the Court:

In this case, Graeme has brought (inter alia) an undue influence claim in his capacity as co-personal representative of the estate of his late mother, Ardell. Even assuming the undue influence claim would survive the death of Ardell, in these circumstances the surviving claim is illusory, at least as it pertains to Ardell’s estate. There is no property interest in the Bourne property for the benefit of Ardell’s estate that would survive Ardell’s death, even in the absence of the conveyance of the Bourne property to Cameron. Ardell and Donald owned the property as tenants by the entirety. It is axiomatic that where property is held in tenancy by the entirety, “each holder of the tenancy by the entirety has an indestructible right of survivorship.” Bakwin v. Mardirosian, 467 Mass. 631, 636, 6 N.E.3d 1078 (2014). Should one of the tenancy holders of the property die before the other, the surviving tenant by the entirety becomes the sole owner of the property. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150, 612 N.E.2d 650 (1993).

“If the tenancy is ended by the death of one spouse, that spouse’s interest is wholly terminated and does not become part of his or her estate.” In re Snyder, 231 B.R. 437, 442 (1999) (emphasis added). That is, a property held in tenancy by the entirety does not become part of the estate of the first tenancy holder to die, and never passes through that person’s estate—rather, it immediately becomes the property of the surviving holder of the tenancy by the entirety. Id.

Had Ardell died never having conveyed the Bourne property to Cameron, Donald as surviving tenant by the entirety would become the sole owner of the property upon Ardell’s death. The property would not become a part of Ardell’s estate, and her estate therefore would have no claim to it. Effectively, Ardell’s estate would be the same whether she and Donald had conveyed the Bourne property to Cameron or they had not.

Do Both Personal Representatives in a Massachusetts Estate Have to Sue Jointly?

Yes.  The Court also dismissed the undue influence case because Graeme, as only one of two personal representatives of Ardell’s estate, was not authorized to sue without the agreement of the other Massachusetts personal representative.

Graeme brings this action “as Co-Personal Representative of the Estate of Ardell Fisher[.]”  However, in these circumstances Graeme cannot proceed alone to pursue this claim where there is another co-personal representative of his mother’s estate. When there are co-personal representatives of an estate, “the concurrence of all is required on all acts connected with the administration and distribution of the estate” unless the will provides otherwise. G. L. c. 190B, § 3-717. Ardell’s will echoes the statutory rule of practice, stating that, “If there are two co-executors serving, they shall act by unanimous agreement.”  Therefore, Graeme would need to pursue this claim with the agreement of Cameron—which is plainly absent here.



How to Reopen Probate in Florida Wed, 19 Feb 2020 15:20:09 +0000 You can reopen probate in Florida if additional assets are located, a new will found, a creditor entitled to notice was not paid, or for fraud.

How Does Probate in Florida End?

A probate in Florida will end upon the filing by the Personal Representative of a Petition for Discharge, Plan of Distribution, and Final Accounting, and the Court entering an Order of Discharge.  Any interested person may object to the Petition for Discharge, in which case a hearing might be held before the Order of Discharge is entered.  Indeed, the Court might agree that the Petition for Discharge or the Plan of Distribution should be altered prior to the close out of the estate.  Interested persons might be asked to sign a Waiver of Accounting and Consent to the Petition for Discharge – if all sign, the Court could enter the Order of Discharge in chambers or at a quick five-minute hearing.

In many probate estates, the Court will administratively close the estate.  In such a case, the Personal Representative is not discharged, but administration of the estate will be suspended.  Typically this happens when the estate is not closed by an initial deadline set by the Court – typically 12 months from the issuance of Letters of Administration.  In some situations, Personal Representatives die, become disabled, or lose interest. It is fairly common.

In a summary administration, the probate estate is never really opened or closed.  No Personal Representative is appointed.  Instead, any interested person, after providing notice to all other interested persons, asks the Court to issue an Order of Summary Administration, which retitles assets and directs third parties to deliver assets in their custody to the proper heirs.

How Do You Reopen a Florida Probate Estate After it is Closed?

Florida Statute 733.903 is the starting point to reopen an estate.

733.903 Subsequent administration.The final settlement of an estate and the discharge of the personal representative shall not prevent further administration. The order of discharge may not be revoked based upon the discovery of a will or later will.

Florida Probate Rule 5.460 sets forth how to petition the Court to reopen a closed Florida probate estate:

Rule 5.460. Subsequent Administration

(a) Petition. If, after an estate is closed, additional property of the decedent is discovered or if further administration of the estate is required for any other reason, any interested person may file a petition for further administration of the estate. The petition shall be filed in the same probate file as the original administration.

(b) Contents. The petition shall state:

(1) the name, address, and interest of the petitioner in the estate;

(2) the reason for further administration of the estate;

(3) the description, approximate value, and location of any asset not included among the assets of the prior administration; and

(4) a statement of the relief sought.

(c) Order. The court shall enter such orders as appropriate. Unless required, the court need not revoke the order of discharge, reissue letters, or require bond.

The 2018 case of Sims v. Barnard, 257 So.3d 630 (1st DCA 2018) explains how to reopen a Florida probate estate for fraud.  The estate administration lasted more than 10 years, with several personal representatives.  The final personal representative filed a final accounting, to which a beneficiary objected.  The Court overruled the objections and discharged the personal representative in 2015.  Two years later, the beneficiary sued the final personal representative for fraud and embezzlement.

The Court allowed, in theory, the lawsuit against the personal representative to proceed, under a modified res judicata concept:

Appellant correctly asserts that section 733.901 “does not serve as an absolute bar to the suits filed after the discharge of
the personal representative.” Van Dusen v. Southeast First Nat’l Bank of Miami, 478 So. 2d 82, 89 (Fla. 3d DCA 1985). The
statutory bar codifies “a modified res judicata concept . . .applicable in probate cases.” Id. at 91. The bar will not be applied to a suit for fraud by concealment, where its application “would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period.” Karpo v. Deitsch, 196 So. 2d 180, 181 (Fla. 3d DCA 1967) (holding that suit was not barred by discharge where suit alleged PR concealed from heirs the true value of estate and concealed from the court the identities of the heirs preventing heirs from asserting objection or claim prior to discharge). Likewise, where the PR conceals its intentional transfer of an estate asset by failing to report the distribution in the petition for distribution or otherwise, the PR “is not entitled to the sanctuary provided by” section 733.901. Van Dusen, 478 So. 2d at 91.

The Court dismissed the lawsuit because the beneficiary did not make the necessary showing to be allowed to proceed to reopen the Florida probate:

The record in this case fails to support any concealment of any estate asset or distribution from the court or from Appellant which prevented Appellant from raising his objection prior to the order of discharge so as to remove Appellant’s lawsuit from the application of section 733.901(2). In fact, the record amply demonstrates that Appellant did repeatedly but unavailingly raise his same objections and claims of mismanagement against the PR throughout the probate proceedings.

Can the Estate Be Reopened if a New Will is Discovered, But is Concealed?

Yes.  The case of Dean v. Bentley, 848 So. 2d 487 (Fla. Dist. Ct. App. 2003) involved a lawyer/personal representative who learned of a new will during probate administration, but nevertheless proceeded to close out the estate without notifying the court or the beneficiary of the new will.  In allowing the petitioner to reopen the Florida estate, the Court explained:

The appellants also argue that the estate should not have been reopened because a petition for revocation of probate must be brought before discharge, and Bentley did not file the petition for revocation until after the order of discharge was entered. Although sections 733.208 and 733.109, Florida Statutes, provide that a petition for revocation of probate should be filed before discharge, fraud is recognized as justification for reopening an estate, even after an order for discharge has been entered. Liechty v. Hall, 687 So. 2d 64, 65 (Fla. 5th DCA 1997); Padgett v. Padgett, 318 So. 2d 484, 485 (Fla. 1st DCA 1975). Also, Rule 1.540(b), Florida Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: . . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”

Can You Reopen A Florida Probate Summary Administration?

Yes, including on the grounds that an heir was excluded from the original summary administration.  In Wallace v. Watkins, 253 So. 3d 1204 (5th DCA 2018), the decedent died in 1971.  In 2001, her two daughters obtained summary administration for a parcel of realty that the decedent owned.  Apparently, the decedent had adopted 3 of her grandchildren, who received no notice of the summary administration.  In 2016, the adopted children sought to reopen the summary administration under Section 735.206(g), which provides:

Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorney’s fees as an element of costs.

In allowing the summary administration to be reopened, the Court was clear:

In their petition to reopen summary administration, Appellees specifically alleged that they were excluded from the original petition for summary administration although they were known heirs of the decedent.

The trial court somehow barred the reopening under Florida’s nonclaim statute, which is an absolute bar to creditor claims against an estate more than two years after death.  As explained by the appellate court, the nonclaim statute does not apply to the interests of a beneficiary seeking to reopen a Florida probate:

Florida’s nonclaim statute applies to claims brought against the estate by creditors. It does not apply to the beneficial interests of heirs. See In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. 4th DCA 1988) (rejecting argument that nonclaim statute barred claim of heirship because such claims were “not the type of ‘claim’ contemplated” by nonclaim statute).


How To Reopen Probate In California Tue, 18 Feb 2020 22:00:12 +0000 In certain situations you can reopen a California probate by petitioning for subsequent administration.

How Do I Reopen Probate in California?

To reopen a California probate, one can file either:

  1. A Petition for Subsequent Administration under Probate Code Section 12252 or
  2. A Petition for Instructions under Probate Code Section 9611.

Petition for Subsequent Administration Under California Probate Code Section 12252

Section 12252 of the California Probate Code States:

If subsequent administration of an estate is necessary after the personal representative has been discharged because other property is discovered or because it becomes necessary or proper for any other cause, both of the following shall apply:

(a) The court shall appoint as personal representative the person entitled to appointment in the same order as is directed in relation to an original appointment, except that the person who served as personal representative at the time of the order of discharge has priority.

(b) Notice of hearing of the appointment shall be given as provided in Section 1220 to the person who served as personal representative at the time of the order of discharge and to other interested persons. If property has been distributed to the State of California, a copy of any petition for subsequent appointment of a personal representative and the notice of hearing shall be given as provided in Section 1220 to the Controller.

Petition for Instructions Under California Probate Code Section 9611

A Petition for Instructions under section 9611 can be filed if section 12252 does not apply, and only by the personal representative of the estate.

California probate code section 9611 states:

In all cases where no other procedure is provided by statute, upon petition of the personal representative, the court may authorize and instruct the personal representative, or approve and confirm the acts of the personal representative, in the administration, management, investment, disposition, care, protection, operation, or preservation of the estate, or the incurring or payment of costs, fees, or expenses in connection therewith. Section 9613 does not preclude a petition for instructions under this section.

Why Would I Need To Reopen Probate?

Most of the situations where a California probate would need to be reopened will need to be pursued under section 12252 by filing a petition for subsequent administration “because other property is discovered or because it becomes necessary or proper for any other cause…”

In the Petition for Subsequent Administration or to Reopen Probate, make sure to state your grounds for reopening the California probate.  If it is not because new assets have been discovered, then explain why it is necessary or proper to reopen the estate.

1.  New Assets Are Discovered

If new assets owned by Decedent are discovered after the estate has been closed and assets distributed, the probate might need to be reopened to direct distribution of the later-discovered asset.  However, the need to reopen a probate because of newly discovered assets can be avoided if the order for final distribution of the estate addresses distribution of property.

Section 11642 states, in part, that:

Any property acquired or discovered after the court order for final distribution is made shall be distributed in the following manner:

(a) If the order disposes of the property, distribution shall be made in the manner provided in the order. The court may, in an appropriate case, require a supplemental account and make further instructions relating to the property.

If the order for final distribution does not address distribution of property, then you will need to petition to reopen the estate.  Since the discovery of other property is the express ground stated in section 12252 governing subsequent administration, the petition should be relatively straightforward.

 2.  A More Recent Will Is Discovered

Another reasons to reopen probate In California is if a more recent will is discovered that should govern the distribution of the estate.

3.  The Discovery of A Previously Unknown Beneficiary

If the estate has been closed and a new beneficiary is discovered, then the estate needs to be reopened so that the distribution of decedent’s estate can be amended to include the new beneficiary.

4.  Discovery of a Debt or Liability

If a new debt or liability of the decedent is discovered, you might want to consider reopening probate, if doing so could benefit the beneficiaries. If the debt is barred by the statute of limitations for creditor claims, generally you would not seek to reopen the estate.

5.  Breach of Fiduciary Duty

It is also possible that after the estate is closed, you discover that the personal representative committed a breach of fiduciary duty during the administration. Good cause could exist to reopen probate so that the personal representative can be held accountable for the breach and make the beneficiaries whole.

Can A Will Defeat A Joint Survivorship Account? Tue, 18 Feb 2020 17:21:14 +0000 In Placencia v. Strazicich, a California appellate court ruled that a decedent’s will can defeat the presumption of a right of survivorship to a joint tenancy account.

The Facts of Placencia v. Strazicich

Decedent, Ralph Placencia, held a joint account with right of survivorship with his daughter, Lisa.  The joint account was opened in 1985.  Lisa had no involvement in opening the account, and no involvement with the account during Decedent’s lifetime.  In 2009, Decedent died.  Decedent’s will, executed shortly before his death, stated:

Remove Lisa Strazicich as sole beneficiary of my Franklin Fund. I want the beneficiaries to be Lisa Strazicich, Stephanie A. Placencia and Tina R. Placencia, my three daughters. I want the Franklin Fund to be placed into my trust fund and then be used to pay off the mortgage of my home in Huntington Beach, CA.

Lisa did not relinquish the funds after Decedent’s death.  Instead, Lisa transferred the funds to an account in her name.  Lisa argued that the will did not defeat the terms of the survivorship account, and litigation ensued.

The trial court ruled that Decedent’s intent as expressed in his will trumped the survivorship designation of the account.  Lisa (the joint owner of the account) was ordered to account for the funds in the account to Decedent’s  trust.  Lisa appealed.

How are  Joint Accounts Treated Under The California Probate Code?

The California appellate court analyzed California Probate Code sections 5302 and 5303, part of the California Multiple-Party Accounts Law (CAMPAL).

Section 5302

Section 5302(a) provides that a joint account entails a right of survivorship ‘unless there is clear and convincing evidence of a different intent.’  The court noted that:

The commentary to that section makes clear that ‘the intention to negate survivorship may be shown to have existed after the time of creation of the account.

Section 5303

Section 5303 provides that “rights of survivorship are determined by the form of the account at the death of a party.”  The court notes that:

Once established, the terms of a multi-party account’ including joint tenancies, ‘can be changed only by one of the following methods,’ which generally require a party to file paperwork with the financial institution.

In this case, Decedent expressed the intent in his will to negate and defeat survivorship, but the form of the account included the right of survivorship, and Decedent did not use one of the methods listed in section 5303 to change the terms of the account.  The California appellate court framed the question as follows:

What  happens when the form of the account includes a right of survivorship, which was not altered by any of the methods listed in section 5303, but the decedent expressed an intent to negate survivorship before passing?  The key to harmonizing these statutes lies in the distinction between the express terms of the account and the beneficial interests in the account.

Terms v. Beneficial Interests In Joint Survivorship Accounts

To reach the answer the court distinguished between ownership of the beneficial interests in the account, and the terms of the account, stating:

We harmonize the two statutes by recognizing the explicit distinction drawn in CAMPAL between the actual ownership of the beneficial interests in the account, and the express terms of the account.  The distinction allows the court to honor the clear intent of the person who established the account while at the same time offering protection to the financial institution which holds the depository account.

In this case, the bank was correct when it gave Lisa the money in the account based on the account’s terms.  However, based upon the statements in Decedent’s will, which the court determined were clear and convincing evidence of Decedent’s intent, the beneficial owner of the account was Decedent’s estate.

Therefore, a Will can furnish evidence of an intent to negate and defeat survivorship terms of a joint account.  While “a will cannot change a right of survivorship as a testamentary act, it may, nonetheless, provide evidence of the account holder’s intent during his lifetime.”