California Probate Lawyer Blog

Digital asset is defined as “an electronic record in which an individual has a right or interest. The term ‘digital asset’ does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.” California Probate Code Section 871(h).  “Electronic” and “record” are also separately defined.

The State of California enacted a version of the Revised Uniform Fiduciary Access to Digital Assets Act which adds Part 20 (beginning with Section 870) to the Probate Code. It applies only where electronic information is being requested from a custodian by a decedent’s representative for the purpose of ascertaining the decedent’s assets and liabilities in managing an estate.  This does not cover conservatorships, trusts and powers of attorney where the conservatee, trustor, or principal is still alive.  It excludes coverage of an employer’s digital assets used by an employee in the ordinary course of the employer’s business. Thus for example a decedent’s estate may not request under the Act the e-mails of a company where the decedent had worked.

California Probate Code Section 870-884 can be generally summarized as addressing the following topics:

E-filing is now required by many of the courts in California; e-filing is required by the court in Los Angeles.  My probate clients are currently able to sign almost all of their documents electronically.  One of the most prominent exceptions to this new rule is that Letters Testamentary or Letters of Administration must have an original signature.  The California Rules of Court for 2018 lay out when e-signatures are accepted.

Rule 2.257. Requirements for signatures on documents

(a) Documents signed under penalty of perjury

Naming the person in your living trust and will to carry out your wishes can be challenging sometimes.  What follows are California guidelines to help make choices so that if the people you have in mind can perform each of these duties and responsibilities then you can be confident you’ve made the right decision.  As your fiduciary, the trustee and executor must be able to comply with these various duties when exercising their powers:

1. Duty of Loyalty to the Trust and Beneficiaries
2. Duty of Confidentiality regarding Trust Affairs

Some probate cases that I work on in the Los Angeles Superior Court are best resolved by a professional mediator than by a sitting judge.  Often the mediator is in fact a former sitting judge who has retired from the bench in order to help people address their differences and come to a resolution.

One case I worked on was ripe for mediation.  I was retained by one of the decedent’s children who was born in the 1970s to a woman the decedent had not married.  One of the women the decedent had married and with whom he had two sons filed for divorce in the early 1960s. As part of the divorce, the wife obtained a court-ordered judgment for child support for both sons.  The decedent had never appeared in court during the divorce proceedings and left it entirely up to the wife to finish it.  He then disappeared from the wife’s and his sons’ lives.  The wife, however, never finished the divorce and never obtained a court-ordered judgment decree finalizing her divorce.

About 50 years later, the decedent met another woman and they married each other.  Shortly after their marriage, he died without a will.  At the time of his marriage, he owned his home in Los Angeles free-and-clear.  They did not have any children between them.

Contingency fee arrangements in probate are rare for me.  Typically, attorney’s fees are paid in one of two ways: either statutory fees or extraordinary fees.  Contingency fee arrangements may come up when statutory fees or extraordinary fees may not apply to a situation.

Recently, a new client told me that he was the heir of a California estate of a person who died without a will (intestate).  As my new client was about to receive his distribution from the probate estate, another person made a claim stating that he instead was the sole heir.  That claimant filed an objection to the proposed distribution arguing that he had a higher priority to claim the entire estate under the rules of intestate succession than my client had.  He argued that since my client was adopted when he was a child, he was no longer related to the decedent and therefore lost his priority as an heir.  My client argued that although he was adopted, his relationship with the decedent was not severed because he was the decedent’s sibling and the rules of adoption sever a relationship only as between a parent and a child.

In a situation like this where the California probate attorney is not handling the actual probate and is instead representing an heir, beneficiary or creditor, a contingency fee arrangement may work.