Articles Posted in Probate

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:

My client’s father died after being killed at a convenience store where he worked.  He didn’t leave a Will but my client was his only child so the Los Angeles Court appointed him as administrator of his father’s estate.  My client had heard his father tell him repeatedly that he owned over a million dollars of property (despite his relatively small salary).  Since the administrator was still a student at a local university and had practically no means of self-support, he needed to find that property and ask the Court to permit the distribution of it all to him.  The only problem in administering the estate was that access to the information leading to the discovery of the million dollars of property was locked in his father’s Google gmail account.  Google refused to allow my client access despite having a Court Order and Letters of Administration granting him full authority over his father’s property.  Instead, Google wanted the Court to sign this Order:

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

 

[PROPOSED] ORDER TO PRODUCE CONTENTS OF DECEDENT’S GMAIL ACCOUNT

Dept.:

Judge:

 

Having considered all of the evidence and relevant legal authorities, the Court finds as follows:

  1. Google Inc. (“Google”) provides a free email service, called Gmail.
  2. ____________ (“Decedent”) is deceased.
  3. ____________ (“Administrator or Administratrix”), is the lawful administrator or administratrix of Decedent’s estate under California law.
  4. Decedent is the sole account holder of the Gmail account ___________ (“Account”).
  5. In his/her lawful capacity established under Paragraph 3, Administrator or Administratrix has a legal right to obtain the content of communications stored in Decedent’s Account.
  6. Under the circumstances of this case, and in light of this Order, no law, legal duty, or obligation, including, but not limited to, any provision of California law or the federal Stored Communications Act, 18 U.S.C. §§ 2701, et seq., prohibits Google from disclosing to Administratrix the communications stored in Decedent’s Account.

IT IS HEREBY ORDERED:

  1. Within ten (10) business days of the entry of this Order, Administrator or Administratrix shall cause an email message to be sent to Google at postmortemrequests@google.com. That email message shall attach an electronic copy of this Order as entered by the Court and shall state as follows:

I, _________, obtained the attached court order directing Google Inc. to produce to me the content of any reasonably accessible Gmail communications stored in the Gmail account [Insert Decedent’s Gmail Address] and dated between [date] and [date].

  1. The Consent Email shall further state that the Administrator or Administratrix consents to Google delivering the content to [Recipient’s name and Address]
  2. Within ten (10) business days of receiving the email message described in Paragraph 7, Google shall disclose to Administrator or Administratrix the communications specified in Paragraph 7. Google shall disclose those communications by sending them to Administrator or Administratrix, in an electronic format of Google’s choosing, at the email address that Administrator or Administratrix uses to send the email message described in Paragraph 7.
  3. Google shall have no obligations to disclose any communications under this Order until the Order is entered by this Court and until Google receives the email message described in Paragraph 7.
  4. This Order resolves any request, legal process, motions, or court orders currently directed to or against Google in this matter. Any such requests, legal process, motions, or court orders are hereby DENIED, QUASHED, OR VACATED as moot.

IT IS SO ORDERED.

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.

Martindale-Hubbell Peer Review Ratings recently came out with it’s rating of me. The Ratings are an objective indicator of a lawyer’s high ethical standards and professional ability. Attorneys receive a Peer Review Ratings based on evaluations by other members of the bar and the judiciary in the United States. I have been honored with an “AV Preeminent” rating which is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. My piers gave me a rating of 5 out of 5 in all possible areas analyzed: Legal Knowledge, Analytical Capabilities, Judgment, Communication Ability, Legal Experience. I’m pleased and honored.

On November 9, 2012 the Joint Committee on Taxation released a report which, among other issues, examines the potential impact to the Treasury from potential changes to the estate tax, including the Obama administration’s proposals. Importantly, if the 2012 estate tax regime is extended into 2013, the Joint Committee estimates that there will be 3,600 taxable estates. Under the Obama administration’s proposed 45-percent estate tax and $3.5-million exemption, the number of taxable estates in 2013 is estimated to be 7,200. If the estate tax regime in 2013 reverts back to the 2002 regime (as it is currently scheduled to do), the number of taxable estates is estimated to be 55,200.

Last month I blogged about “Intentional Interference With Expected Inheritance“.

A new article written by two Harvard Law School professors is about to come out entitled “Torts and Estates: Remedying Wrongful Interference with Inheritance” which takes the opposite view.

Here is the abstract of their paper which is forthcoming in the Stanford Law Review:

A study conducted by Consumer Reports magazine concluded that consulting a lawyer is important, especially in more complex situations, when it comes to choosing between wills prepared by on-line services or documents drafted by lay persons. “Unless your needs are simple–say you want to leave your entire estate to your spouse–none of the will-writing products is likely to entirely meet your needs.”

Consumer Reports evaluated three services commonly used to prepare legal documents including estate plans consisting of living trusts, wills, durable powers of attorney and advance health care directives. Those three services were LegalZoom, Nolo, and Rocket Lawyer.

The outcome of the study found that in some cases, documents programmed by the software of these three companies aren’t specific enough or contain language that could lead to an unintended result.