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    Trusts, Estates, Probate – January Update

    New Case Alerts

    Meleski v. Estate of Hotlen

    Cite as C080023
    Filed November 29, 2018
    Third District

    Summary: A decedent’s insurer can be liable for costs beyond policy limits where the insurer obtains an outcome at trial that is less favorable than the Plaintiff’s C.C.P. 998 offer.

    Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. At the time of the accident, Hotlen had a $100,000 policy limit through Allstate Insurance. Hotlen then died and, as authorized by the Probate Code, Meleski filed a probate action against Holten’s estate for the policy limits of $100,000, serving her complaint on Allstate. Allstate rejected Meleski’s C.C.P. 998 offer to compromise of $99,999. At trial, Meleski recovered $180,613.86, and sought costs, including expert fees, of $66,017.08 under C.C.P. 998. The Court denied Meleski’s requests for costs, holding that Plaintiff’s recovery was limited to the $100,000 policy limit. Plaintiff appealed.

    The appellate court reversed. Allstate, although technically not a named party, was nevertheless a party for purposes of C.C.P. 998. The notion that the “estate” is the defendant is a legal fiction. In the context of this claim against the decedent’s insurer, Allstate alone controlled the litigation, was exposed to any liability, and rejected Plaintiff’s C.C.P. 998 offer. Allstate had made its own C.C.P. 998 offer, and the legislature did not intend for asymmetrical application of the statute. Lastly, the appellate court held that the insurer is liable for such costs even in excess of the policy limits. Click here to read more.


    Estate of Stockird

    Cite as A152538
    Filed December 19, 2018
    First District, Div. One

    Summary: A lapsed gift to a residuary beneficiary passes to the other residuary beneficiaries instead of intestacy, regardless of whether the beneficiary whose gift lapsed was kindred.

    Cheryl executed a holographic will leaving her entire estate to her life partner, John, and her aunt related by marriage, Patricia. Patricia predeceased Cheryl and the will contained no provision directing the disposition of Patricia’s share in that event. After Cheryl died, her will was admitted to probate and John petitioned the court for a determination he was entitled to Cheryl’s entire estate under Probate Code section 21111(b) because he was the sole surviving residuary beneficiary. Cheryl’s half-brother, Bruce, filed a competing petition arguing the lapsed gift to Patricia must instead be distributed to Cheryl’s estate under Section 21111(a)(3) and ultimately to him as Cheryl’s sole surviving heir under the laws of intestacy. Both parties agreed Patricia’s share did not pass to her heirs under the antilapse statue because she was not Cheryl’s kindred. The court applied the definition of “transferee” from Probate Code section 21110 to Section 21111 and ruled that because Patricia was not Cheryl’s kindred she was not a “transferee.” Section 21111’s requirement that lapsed residuary gifts to “transferees” pass to the other residuary beneficiaries therefore did not apply to Patricia’s gift, so the lapsed gift instead passed to Cheryl’s estate. John appealed.

    The appellate court reversed. The gifts under Cheryl’s will of 65% and 35% to John and Patricia, respectively, were residuary gifts, but the trial court misconstrued the statute governing disposition of lapsed residuary gifts. The definition of “transferee” found in Section 21110 does not apply to Section 21111 as that definition is expressly limited to Section 21110. Instead, the Probate Code’s more general definition of “transferee” found in Section 81.5 applies, and Patricia was a transferee under that statute as it does not hinge on status as kindred. Since Patricia was a transferee, Section 21111(b) applied to her gift, resulting in her lapsed gift passing to the other residuary beneficiary, John. The legislative history makes clear that California abandoned the no-residue-of-a-residue rule in favor of modern trust law aimed at avoiding intestacy. Click here to read more.

    Probate v. Privacy

    By Jill Choate Beier

    Most of us have some type of “digital presence” on the internet and, most likely, each of us will continue to use the internet more and more. In recent years, the media has reported various stories involving the administration of a deceased individual’s digital assets. For example, family members of a soldier, killed by a bomb while stationed in Fallujah, were unable to get access to email correspondence from the soldier’s Yahoo! account;1 family members of a 15-year-old who committed suicide were unable to access their son’s Facebook account to search for answers;2 or, the full Flickr photo account of a blogger who died suddenly of a heart attack during the night was closed and unavailable to the family after his death.3

    In all of these cases, the current federal privacy laws that were created, in part to protect our privacy, ultimately prevented surviving family members from accessing the digitally stored memories that were left behind. Whether you have just one email account or you have several email accounts plus Twitter, Instagram, Shutterfly and Pinterest accounts plus documents stored in the cloud, the question is the same: What happens to our digital presence when we are unable to access our digital accounts? This article will review the issues involved with administering digital assets, discuss New York’s Estates, Powers and Trusts Law (EPTL) Article 13-A and provide some guidance for planning for digital assets. Click here to read the full article from NYSBA Journal.

    Trusts, Estates, Probate – January UpdateWhen is the Right Time to Get Your Estate Planning Affairs in Order?

    The answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child. Click to continue reading.

    Trusts, Estates, Probate – January UpdateEstate Planning and Special Needs Speaking Engagements and On-Site Training.

    SBEMP offers free speaking engagements and on-site check-ups on the topics of estate planning, special needs trusts, guardianships/ conservatorships, and special education. Contact SBEMP to schedule a special engagement or on-site check-up for your group. Visit our Website

    With locations in Palm Springs, CA, New Jersey, NJ, and Manhattan, NY, SBEMP’S Trusts, Estates & Probate Department is comprised of attorneys with decades of experience in a broad range of issues from planning to administration to when incapacity or death occurs – all while using a mindful approach to identify a client’s special, business or litigation needs. SBEMP’S Special Needs & Elder Law Department has over twenty years of experience including the following highly specialized practice areas: health care insurance, short-term and long-term disability insurance, Medicaid, Medicare, special needs trusts, trust administration, estate planning & administration, guardianships and conservatorships, and accessing disability-based benefits.


    Valerie A. Powers Smith

    Chelsea Healey

    DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

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