Recent Legislative Changes Affecting Probate

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Law Office of Edgar Saenz

Los Angeles, CA

This article summarizes recent legal changes that have a bearing on probate proceedings in California.

The legislature has enacted supplemental fees which raise the petition filing fee to $465 ($435 first paper filing fee plus a $30 court reporter fee). In addition, new legislation establishes a $40 filing fee for a request for special notice.

In the natural order of things, we expect children to outlive their parents. But when that order is reversed, parents may inherit from their child if that child left no children or surviving spouse. New legislation qualifies the right of a parent to inherit from or through a child. Essentially, the parent does not inherit if the parent-child relationship was terminated, the parent did not acknowledge the child, or the parent "left the child during minority without an effort to provide for the child's support or without communication from the parent." Probate Code § 6542(a).

As Nolo readers may be familiar, California does not have an inheritance or estate tax. There is, however, a federal estate tax. In practice, only the wealthiest persons and families will pay any estate tax because of the high level of the lifetime exemption. For decedents dying in 2014, the exclusion amount is increased to $5,340,000. This figure refers to value the decedent's net estate.

Where you live and die matters for death tax purposes. A California resident faces relatively high income taxes, but no state estate tax. On the other hand, a Washington State resident is free from state income tax, but is subject to state estate tax.

Finally, the new year sees changes in the area of "undue influence," a legal theory available for challenging a will in probate court. Traditionally, undue influence is formulated as conduct "by which the mind of the testator (the person creating the will) is subjugated to the will of the person operating on it." Estate of Ricks (1911). Contestants may argue to a court that the decedent's will should be set aside (or its revocation disregarded) because another person took unfair advantage of the decedent.

New legislation defines undue influence as "excessive persuasion."

"Undue influence" means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity.

Welf & Inst Code § 15610.70(a).

Relevant factors include the victim's vulnerability, the influencer's authority, and tactics used by the influencer. Welf & Inst Code § 15610.70(a). Since the common law in this area is retained, the new "excessive persuasion" definition marks an expansion of the grounds for finding undue influence.

Edgar Saenz is a Los Angeles estate planning attorney. He is rated AV (Preeminent, Highest Possible Rating) by Martindale Hubbell. A graduate of Stanford Law School, he is a member of the Trust and Estates sections of numerous bar associations, including the State Bar of California. Edgar serves on a number of community boards.; Telephone: (310) 417-9900; [email protected].

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