March 2021 Update
General Note Regarding Coronavirus/COVID-19 Rule Changes
Trust and probate litigation practitioners should frequently check both the California Rules of Court and local court rules for changes enacted due to the 2020 novel coronavirus/COVID-19 pandemic (“COVID rules”). As this is a practice guide for general use, COVID rules and statutory changes are not noted unless germane to the text, for example, changes to CCP §2025.310 allowing for remote deposition practice (see Particular Items of Note, below). Changes that do not affect probate and trust litigation practice are not noted. For example, amendments to CCP §664.6 allow an attorney to sign a written stipulation for judgment on behalf of the party the attorney represents, but this section does not apply to actions brought according to the Probate Code. CCP §664.6(a), (c). COVID rules affecting local rules of court are also not noted as they are beyond the scope of this publication, and the fluid nature of the pandemic necessitates ongoing changes which would likely render temporary emergency local rules inaccurate by the time this edition is published.
Particular Items of Note
Rule 9 of the California Rules of Court Emergency Rules Related to COVID-19 tolls all statutes of limitations and repose exceeding 180 days for civil causes of action from April 6, 2020, to October 1, 2020. Civil statutes of limitations of 180 days or less are tolled from April 6, 2020, until August 3, 2020. See Notes at §§8.3, 13.7, 13.19, 15.24, 15.30, 19.5, and 22.46.
Probate Code §15642 was amended effective January 1, 2021, to remove the reference to Prob C §21350, which was repealed in 2014. This is noted at §3.31.
For improvements to chapter 4, in the form of additional explanatory material and supplemental authorities, see §§4.17J, 4.17K, 4.17M, 4.18, and 4.23.
Estate of Holdaway (2019) 40 CA5th 1049 made clear that the tolling of the 1 year statute of limitations period of CCP §366.2 upon filing and service of a creditor’s claim does not end until the personal representative formally rejects the claim using the procedure of Prob C §9352. See §5.34.
The split of authority regarding whether the property calculation of damages under Prob C §859 is an amount equal to the value of property recovered, or two times the value of property recovered, remains unresolved. However, Estate of Ashlock (2020) 45 CA5th 1066 followed the two times calculation of Estate of Kraus (2010) 184 CA4th 103 and not the “equal to” calculation of Conservatorship of Ribal (2019) 31 CA5th 519. See note at §8.2.
Notice of a hearing on a petition brought under Prob C §850 must now be given on the mandatory form Notice of Hearing on Petition to Determine Claim to Property (Judicial Council Form DE-115). See §10.4
Provided that a court order is obtained in the proceeding, parties and their counsel may now take and participate in depositions by remote means. CCP §2025.310. See §10.24.
Of note to appellate practitioners, Conservatorship of O.B. (2020) 9 C5th 989 clarified that the evidentiary standard applied at the trial court level is not disregarded on appeal, contrary to a possible reading of Crail v Blakely (1973) 8 C3d 744. See §17.42.
Estate of Eimers (2020) 49 CA5th 97 explained that Estate of Duke (2015) 61 C4th 871 does not apply to cases seeking reformation of a will if the decedent’s intent is not at issue. See §18.31.
Trust beneficiaries disinherited by a later amendment to the trust hold standing to challenge the amendment under Prob C §17200 sufficient to survive a demurrer as they are a beneficiary under the prior iteration of the trust, and treating the allegations of the petition challenging the amendment as true creates the necessary present or future interest in the trust granting the petitioner the status of a beneficiary as defined by Prob C §24(c), thus creating standing under Prob C §17200(a) and (b)(3). Barefoot v Jennings (2020) 8 C5th 822, 826. See §20.20.
A new subsection to §21.39 briefly discusses the trustee’s duty to minimize the costs of investments under Prob C §16050 supported by the California Supreme Court’s decision in Tibble v Edison Int’l (2015) 575 US 523, 135 S Ct 1823, as an additional requirement of the trustee’s duty to retain investments. See §21.39B.
The rule regarding the prohibition on non-attorney trustee self-representation was addressed again in Donkin v Donkin (2020) 47 CA5th 469, demonstrating that the key to application of the rule focuses on whether the trustee is acting for the benefit of, or adverse to, the trust beneficiaries. See Note in §22.10.
Belch v Belch (2019) 38 CA5th 941 made clear that a creditor needs to wait until a trust distribution is due and payable before filing a Prob C §15301 petition to enforce a money judgment against a beneficiary's distribution. See §22.53.