Conservatorship and Probate Bar Section Program Updates – new Estate Case Decision

Firm partner, Yasha Bronshteyn, litigating Conservatorship and Trust Matters, is looking forward to the Los Angeles County Bar Association Presentation on March 16, 2018, by Judge Klein and Judge Johnson of the Los Angeles Superior Court Probate Department.  Judge Klein presides in Department 9 and Judge Johnson presides in Department 11.  They will discuss their top 10 problems with probate and trust pleadings, accounting, and proposed orders and how to avoid them.  Cleary, appropraite counsel is required to efficiently and effectively navigate these sort of proceedings.

Next, On March 22, 2018, the Ventura County Bar Association – Probate and Estate Planning Section will present “Uncovering the Truth in Contested Proceedings”.  The Ventura Probate program is based on the notion that while most executors carry out their duties in good faith and to the best of their abilities’, there is a small but critical percentage that exploit their position of power.  Such such their is wrongdoing and fraud is at times committed against beneficiaries.  There have been an unacceptable amount of victims in such situations.  The program will focus on protecting beneficiaries’ (clients’) rights and where possible to enable recovery of assets.  The Ventura Bar program will commence at noon at the Tower Club in Oxnard.

If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented.  Attorney Bronshteyn also serves on the probate volunteer panel of the Los Angeles Superior Court, and has represented beneficiaries, executors, administrators, trustees, conservators, and conservatees, in court proceedings.  Contact us by calling (310) 914-3222 in Los Angeles, or (818) 787-1011 in Westlake Village, or by using our online contact form.

Lastly a new Court Decision from Appellate Court:

Estate of Kirk Kerkorian, B283132, Filed January 19, 2018, Second District, Div. Five

Probate Code section 11704 requires an executor to obtain court permission before taking sides in a proceeding to determine who is entitled to a distribution of estate assets. Generally, an executor or representative of the estate is supposed to act as an indifferent person between the real parties and therefore cannot litigating conflicting claims. However, executor are allowed to intervene when permission is granted by the court. The following case involving the Estate of Kirk Kerkorian illustrates what an executor must show to the court before becoming involved.

Kirk Kerkorian executed a will in July 2013 to govern the distribution of his assets upon his death. On March 30, 2014, Kerkorian married petitioner Una Davis. Two days before the wedding, Kerkorian gave objector and executor Anthony Mandekic $10,000 with written instruction to give the money to Davis as a transfer from outside the estate. A day before the wedding, Davis signed a Waiver of Marital Rights, relinquishing any right to receive assets of Kerkorian’s estate through intestate succession, under Kerkorian’s will, or an omitted spouse pursuant to statute. Mandekic then transferred the $10 million to Davis as directed. Kerkorian and Davis separated roughly two months later.

Kerkorian died just over a year thereafter. His will was admitted to probate and Mandekic was qualified to serve as executor. The will did not provide for or even mention Davis.

Pursuant to Probate Code section 11700, Davis petitioned the court for an order determining her right to a distribution of Kerkorian’s estate as an omitted spouse. Section 11700 allows for any person claiming to be a beneficiary or otherwise entitled to a distribution to file a petition for the court to determine if they are entitled to a distribution. Pursuant to statute, a decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments shall receive a share in the estate as an “omitted spouse” unless it is shown that the decedent intentionally omitted the spouse, or the spouse waived the right to participate in the estate.

Davis alleged that the $10 million gift and execution of the waiver did not preclude her from being treated as an omitted spouse because the relevant documents were not signed by both Davis and Kerkorian as require. At this point Mandekic sought court approval, pursuant to Probate Code section 11704 to oppose Davis’ omitted spouse petition. Mandekic asserted there was good cause to grant such approval because he was responsible for implementing what he knew to be the testamentary wishes of Kerkorian, there were no named charitable beneficiaries available to defend the estate, he had no remaining personal interest in the estate, and that even if he was directed to refrain from litigating the petition, he would still remain involved as a witness and Executor. The Attorney General supported Mandekic’s request, reasoning that Mandekic was the most familiar with Kerkorian, his estate, and his estate plans.

Davis objected to Mandekic’s request to oppose her position. She contended that his participation was unnecessary because the Attorney General was both obligated and able to represent the only interests adverse to her petition, those of the unidentified charitable beneficiaries. Davis contended that Mandekic was not able to show good cause to oppose the petition as a litigant because the Attorney General already had a statutory duty to represent the unidentified charities.

The probate court granted Mandekic’s request to oppose Davis’ omitted spouse petition. The court reasoned that Probate Code section 11704 does not prevent a personal representative from participating in heirship proceeding. The only thing the Probate Code requires prior to court approval is a showing of good cause. The probate court found that such good cause existed because Mandekic was familiar with Kerkorian’s financial and personal affairs, putting him in a unique position to best advocate for Kerkorian’s intentions; Mandekic had no financial interest in the estate, having already received his distribution; Mandekic was not otherwise improperly motivated to participate in the proceedings; it would be a waste of resources to require Mandekic to educate the Attorney General; and allowing Mandekic to participate as a party would result in a speedier resolution.

Davis’ appealed the probate court’s decision, claiming that the determination of “good cause” was not enough and that the court should have decided, under the statute, whether Mandekic’s participation as a party was “necessary to assist the court.” Davis also contended that the good cause finding was an abuse of the court’s discretion.

The appellate court sided with the probate court, holding that such an express finding of necessity was unnecessary because a “good cause” finding under Section 11704 naturally incorporated a contemplated level of necessary assistance by the petitioning party. Section 11704’s “use of the word ‘necessary’ must be read in context, and as courts have long recognized, it often carries-as it does here-a meaning more akin to ‘useful’ rather than ‘indespensable.’” The appellate court concluded that the probate court expressly found good cause to permit Mandekic to participate in the action as he proposed, and that good cause determination was well within the court’s broad discretion.

We are here to help you and your loved ones.  To discuss your needs and discover your options, consult the Los Angeles incapacity, conservatorship,  and trust litigation attorneys at Ginzburg & Bronshteyn, LLP.  We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California including Agoura Hills, Beverly Hills, Calabasas, Camarillo, Encino, Hidden Hills, Irvine, Lake Sherwood, Marin County, Mission Viejo, Newport Beach, Oxnard, Palo Alto, Pasadena, San Francisco, San Juan Capistrano, Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, Tustin, Ventura, West Los Angeles, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process. We are experienced in obtaining and defending against conservatorships. Contact us by calling (310) 914-3222 in Los Angeles, (818) 787-1011 in Westlake Village, (714) 280-0601 in Orange County, (415) 465-6555 in Northern California, or by using our online contact form.

Once again Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. Our experienced Los Angeles conservatorship attorneys are here to help clients in Santa Monica, Ventura County, Orange County, Northern California and throughout Southern California defend their rights under the law. To contact our skilled attorneys, please contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222, (714) 280-0601, or (818) 787-1011.