This Section and its working committees (Guardianship / Conservatorship Project and Elder Law) deal with all issues relating to estate planning and the probate of decedents' estates, the avoidance of probate, and the protection of incompetents and their assets through guardianships and conservatorships.

Beverly Hills Bar Association Legislative Updates California Court of Appeal

November, 2004 Case Update Coplan v. Coplan (Cal 2d B167909) Here the personal representative was also a beneficiary. She filed suit for fees as a personal representative. The other beneficiary claimed that this violated the no-contest clause and therefore she is disinherited. The court differentiated the two positions and said that they are not related and therefore an action to get fees for administrative services does not violate the no-contest clause. Featherson v. Farwell (Cal App 4th) This case relates Under What Circumstances an Attorney Owes a Duty to a 3rd Party Beneficiary. Typically the law is that the Attorney owes due care to both the Testator and the 3rd Party Beneficiary. Here an attorney was asked to draft a deathbed deed which favored one of the three children. The attorney did not record the deed until after her death. The trial court found that the late deed transfer was invalid which caused that child to lose the property. The attorney purposely did not record the deed immediately because he wanted the Testator to complete all of her estate planning documents before recordation. The beneficiary who lost the property sued the lawyer on the grounds that as a 3rd party beneficiary, she was owed a duty of due care. The court sided with the Attorney, saying his allegiance was to the Testator and not to the beneficiary and it was proper to hold off in recording the deed. If the attorney had to be concerned with being sued by the beneficiary, it would compromise the attorney client relationship. Boranian v. Clark (B165402 Cal App 4th) - Same issue with respect to Whom the Attorney Owes Loyalty. Penny v. Wilson (Cal. App 4th B169057) Testators H&W created a family trust in 1981. Wife died a week later. Under the terms of the trust, upon the death of the 1st Spouse, the assets were to be divided equally into the survivor’s trust and decedent’s trust. Husband finally transferred into the two trusts in 1998. At that time in 1998, the 1981 values were used and not values at the time the assets were transferred to trust. The problem was that several properties appreciated and several depreciated and thus, it was not an equal distribution. The court found that the trustee breached his duty to administer the trust according to the trust instrument by not taking into account the appreciation in value of 16 years of real property which was transferred into the survivor's trust.