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Elderlaw: 04/01/2008

Len & Rosie for April 1, 2008

Tough to find executor

Dear Len & Rosie,

My husband's father passed away recently and she and her siblings are not on best terms. They would like to see if there was a will but don't know how to locate the executor. Her father had told her it was someone outside the family. How does one find out who the executor of a will is, and for that matter how does the executor find out someone has died?


Dear Marco,

Our first inclination was to respond with simple "How would we know?" You're looking for a needle in a haystack. Your father-in-law could have named anybody as executor, but it's more likely than not that your father-in-law named one of his friends. Ask his friends discretely, if you know who they are.

It is possible that your friend named his lawyer as executor, but this is not very likely. Attorney fees in probate are fairly lucrative. A lawyer for a $500,000 estate earns $13,000 in statutory lawyer fees, the same as the executor. But if the lawyer also serves as executor, he or she gets paid only once. Double dipping is not allowed. Therefore most attorneys do not agree to serve as executors for the simple economic reason that there's nothing in it for them.

You also touched on the problem of an executor learning of the death. If the executor isn't close to your father-in-law, how's he or she going to know? Consider that your father-in-law's executor may not actually know that he or she is named as executor in the will. Did your father-in-law inform this person? For all we know, your father-in-law's will may be gathering dust in an attorney's filing cabinet.

You're going to have to undertake a morbid scavenger hunt. Your family will have to sort through your father-in-law's belongings to see if there is a copy of a will lying around, or maybe even a canceled check made out to a local attorney. If you can't find a will, then the estate will pass equally among your father-in-law's surviving children, assuming he wasn't married upon his death. Your husband, or maybe one of the other children, may have to petition the court to be appointed as administrator of the estate, with the same duties and powers of an executor nominated in a will.

This is a cautionary tale. Many people want to keep their estate plans confidential, but they should not be too secretive. Some of you may go so far as to make extra copies of your wills and trusts and pass them out to your children. If you don't want to do that - if you wish to protect your privacy, then just give your children or other beneficiaries your attorney's business card with a note telling them to contact the attorney upon your death or incapacity.

Len & Rosie

Dear Len & Rosie,

My deceased mother was in the care of my niece who was also trustee of my mother's trust. My mother modified the trust to give my niece her home, which is worth at least one fifth of the estate. At the time that this was signed my mother was in Hospice and was being given morphine. I think there was undue influence and manipulation. The trust has a no-contest clause and a lawyer my brother consulted with said that the risk is too great for the return. My share is one-fifth of the estate, what is your opinion?


Dear Donal,

You may have a valid undue influence claim, or even a claim that the trust amendment is invalid due to a lack of capacity on the part of your mother. An undue influence claim rests on a three-legged stool consisting of a confidential relationship (your mother trusted and relied on her granddaughter), active procurement (your niece got your mother to amend the trust, hired the lawyer, etc.) and unjust enrichment (she would end up with more than what she would have otherwise). If all three elements of undue influence are met, the burden of proof will shift to your niece to show that she was not really up to no good. You may also have a 'lack of capacity' claim if you can show that your mother was too medicated to understand what she was doing.

The problem, as you have already learned, is the trust's no-contest clause. No-contest clauses are essentially a "take it or leave it" proposition. If you challenge the validity of your mother's trust in an attempt to get more than what the trust says, you're disinherited. If you lose. If you win, then the amendment is invalid and the trust goes back to what it said before your mother changed it. No-contest clauses are so powerful that there is presently an ongoing debate in the Trusts and Estates Section of the California Bar Association as to whether or not to allow them. Some states don't.

Fortunately, the California Probate Code includes a "safe harbor" provision that allows you to petition the court to determine whether or not your claims challenging the validity of your mother's trust amendment would actually trigger the trust's no-contest clause. And maybe it won't. No-contest clauses are strictly construed by the courts. For example, unless the no-contest clause says that it applies to trust amendments, it usually doesn't. If you are serious about your case, you may want to consider hiring a lawyer to petition the court on this issue.

The other problem you may have depends on who did the legal work. If an estate planning attorney met with your mother and prepared the amendment, then he or she will be a neutral witness who will be available to testify as to your mother's mental capacity and her desires. It certainly isn't out of the arena for a dying woman to leave something to a grandchild who helped her live out her last days at home.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, and

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