Category: Trust & Probate Litigation

Tips of the Trade: North to Alaska for an Ante-Mortem Probate.


Nine states have enacted legislation expressly authorizing ante-mortem proceedings to validate a will, a trust, or both.1 The goal of an ante-mortem probate—the Holy Grail—is to obtain an order precluding post-death contests of the validated document, granting it “total invincibility.”2 Although validation proceedings do not result in any disposition of a decedent’s property at the time of the validation, they have become known as “ante-mortem probate” proceedings.”3

An ante-mortem probate to validate a will, a trust, or both, differs from a traditional post-mortem proceeding principally because the person creating the instrument is alive and available to testify about their wishes and demonstrate their capacity. The presence of this key witness should, the
argument goes, eliminate the all-too-familiar situation in which heirs and beneficiaries take advantage of death to make unfounded claims as to the validity of an instrument, usually based on incapacity and undue influence.

An example of the unreliable evidence presented postmortem appeared recently in Levin v. Winston-Levin,4 in which the trial court, “was, to say the least, not impressed with either side.”5 Each claimant lacked credibility and each painted herself as the one loved by the deceased settlor of the trust at issue, “while depicting [the settlor] as distanced from, and distrusting of the other….”6 If the settlor had been willing to attempt to validate his documents in advance, and if the trial could have been held while the settlor was alive, the settlor’s testimony could have improved the evidence and enhanced the reliability of the court’s determinations, even if it may have also caused or exacerbated family discord.

The viability of ante-mortem probate is not free from debate. On one hand, a proponent of ante-mortem probate argues that the procedure is “[a] progressive technique with tremendous potential for improving the estate planner’s ability to assure that a testator’s desires will be carried out upon
death….”7 On the other hand, an opponent of ante-mortem probate argues that the proceeding does not just exacerbate family conflict but, moreover, “[a]ll proposed versions of ante-mortem probate have practical, constitutional, and policy issues that cannot be overcome.”8 One of the constitutional issues that is difficult, if not impossible, to overcome is the need to notify potential heirs and beneficiaries of the proceedings as required by due process.9

A. Ante-Mortem Probate as a Lawyer’s Tool

1. Is Ante-Mortem Probate in California

California has not expressly authorized ante-mortem validation of a will, and the authors are not aware of any statute or case that could be the basis for seeking ante-mortem validation of a will in California.

California does not have a statute expressly authorizing ante-mortem validation of a revocable trust. However, California’s statutes and cases suggest that a revocable trust can be validated before the settlor’s death. An ante-mortem trust validation is similar to a declaratory relief action, and California’s probate courts have jurisdiction to grant declaratory relief.10 While the settlor is competent, Probate Code sections 15800 and 17200, together, authorize the settlor or the trustee to petition the court regarding the validity of a revocable trust and its provisions.11 If a trust is irrevocable, a trustee or beneficiary could file such a petition.12

In Conservatorship of Irvine, the Court of Appeal granted a trustee’s petition to determine the validity of a trust amendment during the settlor’s lifetime.13 In Irvine, the court held that a trial court’s general jurisdiction under Probate Code section 17200 to determine the existence of a trust or a trust amendment was not limited to irrevocable trusts.14 In Drake v. Pinkham, the California Court of Appeal held that a beneficiary with knowledge that a settlor’s trust amendment impacting the beneficiary’s interests was executed when the settlor was allegedly incapacitated has standing to challenge the amendment while the settlor is alive and, indeed, a failure to challenge the amendment during the settlor’s lifetime may
bar a post-mortem contest.15

Given these cases and statutes, a California practitioner may be able to cobble together a proceeding that would provide the practitioner’s client with a probate court order confirming a revocable trust that could not be challenged by disgruntled heirs or beneficiaries post-mortem. However, the California path is anything but straight and narrow, and since other states have statutes that expressly authorize the practitioner and the client to grasp the Holy Grail of incontestability for a trust and/or a will, it is worthwhile to pay some attention to those statutes.

2. Ante-Mortem Probate in Other States

As noted above, nine different states have expressly authorized ante-mortem proceedings to validate trusts, wills, or both. This article focuses on the Alaska statute, because, as explained below, it is more expansive than some others, and because Alaska is not that far from California.

3. The Purpose of This Tip of the Trade Article

This article is not designed to argue the merits of antemortem probate. It is designed, rather, to alert California practitioners to the idea that they might be able to validate their clients’ estate plans (and preclude post-mortem contests) under California law or the laws of another state. While California lawyers may not rush to pursue ante-mortem probates, the possibility of doing so in an appropriate case is a valuable tool in the California practitioner’s kit.

B. The Ravet Case—The Sort of Case That Calls for Ante-Mortem Probate

Wealthy San Diego residents Shirley and Emanuel Ravet had three daughters and a son, Gary.16 Gary was a lawyer who “was a party to over 100 lawsuits—some of them filed by him and some filed against him.”17 One infamous case involved a dispute with his health club, Personalized Workout of La Jolla (“Workout”), over membership fees. Gary lost his suit and, in 2003, Workout was awarded $867.

Workout then sued Gary for malicious prosecution, and Gary lost big. The jury awarded Workout $383,654.18 While the malicious prosecution case was pending, Gary engaged in a series of asset transfers that involved his parents and his girlfriend. After Gary lost the resulting fraudulent transfer case, Forbes summarized the result: “Gary Ravet was able to turn the $867 dispute with Workout over the membership fees into an $883,654 judgment against himself, a $383,654 judgment against his mother Shirley and his father Emanuel’s estate, and a $633,654 judgment against his ex-girlfriend….Well done, Gary, well done.”19

After the Workout case concluded, and Gary’s father had died, Gary’s mother restated her trust. As might be expected, the Restatement favored Gary’s sisters. Gary was to receive $250,000 and his sisters were to share the residue.20

Mrs. Ravet’s Restatement named a Delaware institution as Co-Trustee with her. The Co-Trustees promptly filed a petition in the Delaware Chancery Court to validate the Restatement. On February 23, 2012, just two weeks after the Restatement was created, the Co-Trustees provided Gary notice by mail that he had 120 days to contest the trust in Delaware—Gary apparently ignored that first notice and many others.21 Gary filed a contest of the Restatement on July 26, 2012 “while his mother was still alive, and well beyond the 120-day period to contest the trust….”22 Gary did not serve his petition until, December 5, 2012, a few days after his mother had died.23 The Chancery Court determined that Gary’s contest was timebarred.24 The Delaware Supreme Court affirmed February 12, 2015.25

Twelve days after the order, on February 24, 2015, Gary was found guilty of forgery of a deed of trust he recorded in his attempt to avoid the Workout judgment, and the judge let him know that he faced up to four years in prison.26 The next day, Gary committed suicide.27

Cases like Gary Ravet’s do not come along every day, but it is wise for California lawyers to be aware that Delaware and other states offer the possibility of an ante-mortem validation proceeding when it is needed. Unfortunately, Gary’s suicide did not clear up all the questions in the case, including the million-dollar question: “would the Delaware decision have
withstood all possible challenges?”

C. Potential Use of Foreign-State Ante-Mortem Probate Laws by California Attorneys

At the American College of Trust and Estate Counsel (ACTEC) 2020 Annual Meeting, a panel discussed the various state ante-mortem probate statutes, suggesting that the statutes could be available for use by attorneys whose states had not adopted such statutes, as had been done in the Ravet case.28 The underlying theory is that, if the court exercises valid jurisdiction, under the Full Faith and Credit Clause, a judgment valid in one state is valid in another,29 so a judgment barring a post-death contest of a will or trust issued by one state should be valid and enforceable in all other states. Several states have, in essence, declared themselves open for the business of conducting ante-mortem probates. The Delaware statute provides that an ante-mortem proceeding can be initiated by a trustee or co-trustee doing business in Delaware. The Alaska statute is even more expansive. Under the Alaska statute, only an in-state trustee or co-trustee or the settlor (if a trustee or co-trustee is in Alaska) can petition to validate a living trust,30 but any “interested party” can commence an ante-mortem validation proceeding of a will, with no requirement that any person involved in the case must, be domiciled in, or a resident of, Alaska.31

D. Ante-Mortem Will Validation in Alaska32

In Alaska, “[a] testator, a person who is nominated in a will to serve as a personal representative, or, with the testator’s consent, an interested party, may petition the court to determine that a living person’s will is valid, subject only to subsequent revocation or modification.”33 Standing to bring the petition is not limited to residents of Alaska. Thus, it appears that a California testator can bring an ante-mortem petition in Alaska seeking to validate a will executed in California. The statute contemplates such a petition and specifically provides that, if the testator is not a resident of Alaska, venue is “any judicial district of this state.”34

The required contents of an ante-mortem petition to validate a will in Alaska are not surprising.

The petitioner must allege that a copy of the will is on file with the court together with the facts establishing that the will was executed properly.35 The petition must also state the names and addresses of “the testator’s spouse, the testator’s children, the testator’s heirs, the personal representatives nominated in the will, and the devisees under the will.”36 Minor heirs and devisees must be identified.37 (Since the identities of a person’s heirs are determined at death, this notice provision is problematic.) Notice of the hearing on the petition is generally 14-days’ notice by mail.38 The petitioner bears the burden of “establishing prim facie proof of the execution of the will….”39 “A person who opposes the petition has the burden of establishing the lack of testamentary intent, lack of capacity, undue influence, fraud, duress, mistake, or revocation.”40

At the conclusion of the proceeding, the court can determine the will to be valid and “make other findings of fact and conclusions of law that are appropriate under the circumstances.”41 If the court determines the will to be valid, “the will has full legal effect as the instrument of the disposition of the testator’s intent and shall be admitted to probate upon request.”42 The determination is binding on “[a] person, whether the person is known, unknown, born, or not born at the time of [the] proceeding.”43 If a guardian ad litem was appointed to represent minors or unborn persons, the minors or unknown persons are bound “even if, by the time of the testator’s death, the representing person has died or would no longer be able to represent the person represented in the proceeding….”44

If a testator desires to modify his or her will after the court validates it, the testator can do so.45 However, the modification is not protected by the original determination.46 The possibility that a validated document could later be changed, resulting in further litigation (either ante-mortem or post-mortem) suggests that an ante-mortem probate is best employed when the possibility of a later change appears minimal.

E. Ante-Mortem Trust Validation in Alaska

The procedures for the ante-mortem validation of a living trust in Alaska are similar to those for the ante-mortem validation of a will. The key difference is that a trust validation procedure can be filed in Alaska only if one of the trustees is a resident of Alaska or is a trust company or bank that does business in Alaska.47

F. Observations Regarding Ante-Mortem Proceedings

Any attempt to obtain an ante-mortem validation of a will or a trust in California, Alaska, or another state deserves detailed consideration and analysis. Some preliminary questions and observations follow.

What notice is required? Beneficiaries with interests as remote as future contingent interests are entitled to notice.48 Heirs may be entitled to notice.49 How can those beneficiaries be identified and noticed while the settlor is alive? If at the settlor’s death there is a person who ends up being an heir or a beneficiary but was not noticed, is the court’s validation effective at all? Or, is it effective only as to those who did receive notice? Must a guardian ad litem always be appointed?

Would it be possible to validate a pour-over will in Alaska without revealing the contents of the trust or trusts into which it will distribute its assets? What would be the effect of such a proceeding?

Since a trust defines a trustee’s legal relationship to property,50 must the property in the trust be disclosed in an ante-mortem proceeding to validate the trust? Or, are the assets of the trust irrelevant to a proceeding to determine its validity? How can a determination of validity be made without consideration of who is getting what? If a trust is validated and
property is later added to it, must the later transfer to the trust be re-validated?

What discovery of the settlor’s capacity will the trial court permit?

What discovery of the trust property will the trial court permit?

What steps must be taken to ensure that any judgment obtained in a foreign state will be recognized in California? Will the notice provided under the statute of a foreign state comply with the due process requirements of Roth v. Jelley?51

It would be prudent to take as many steps as possible to validate jurisdiction in the foreign state. For example, it would be a good idea for the petitioner in an ante-mortem will validation proceeding in Alaska to move to Alaska during the pendency of the proceeding (or to at least rent an apartment or open a bank account there) to ensure minimum contacts with Alaska, justifying jurisdiction under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.52 Similarly, any co-trustee named in a foreign state should be more than a figurehead.

G. Conclusion

Lawyers need as many tools as possible to help their clients. California lawyers do not have their own express ante-morte probate statute but, in proper cases, they might consider making use of California’s cases and statutes which, together, may authorize ante-mortem trust validation. California lawyers might also consider making use of antemortem probate statutes that have been enacted in Alaska and in other states. Obviously, as with any strategic decision on behalf of a client, expected costs and benefits should be weighed prior to proceeding.

*Hughes & Pizzuto, APC, San Diego, California

  1. These states are North Dakota, Ohio, Arkansas, Alaska, New Hampshire, Delaware, North Carolina, Nevada, and South Dakota.
    See Beyer, Just Because You Are Still Alive Doesn’t Mean You Cannot Probate Your Will: Ante-Mortem Probate as the Ultimate Will Contest Prevention Technique (a paper presented at ACTEC 2020 Annual Meeting, March 7, 2020, Boca Raton, Florida, Seminar F).
    See also Akers, ACTEC 2020 Meeting Musings, pp. 37-38 (summarizing materials presented at ACTEC 2020 Annual Meeting) [hereinafter Beyer].
    Much of this article is based on material presented by Professor Beyer, Michael M. Gordon, and Sally H. Mulhern at the ACTEC 2020 annual meeting.
  2. Id. at p. 17.
  3. Id. at p. 1.
  4. Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025.
  5. Id. at p. 1033.
  6. Ibid.
  7. Beyer, supra, at p. 1.
  8. Bradley, Antemortem Probate Is a Bad Idea: Why Antemortem Probate Will Not Work and Should Not Work (Jan. 27, 2016) p. 3
  9. Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306; Roth v. Jelley (2020) 45 Cal.App.5th 655.
  10. Stewart v. Towse (1988) 203 Cal.App.3d 425, 429-430.
  11. Probate Code section 17200(a) provides that “[e]xcept as provided in Section 15800, a trustee or beneficiary of a trust may petition the court … concerning the internal affairs of the trust.” Probate Code sections 17200(b)(1)-(3) includes the following as proceedings concerning the internal affairs of a trust: “Determining questions of construction of a trust instrument,” “[d]etermining the existence or nonexistence of any power, privilege, duty or right,” and “[d]etermining the validity of a trust provision.” Probate Code section 15800 provides that while a trust is revocable, only the settlor has the rights afforded to beneficiaries under trust law, meaning that only the settlor or trustee could file a petition concerning the internal affairs of a trust pursuant to Probate Code section 17200.
  12. If the trust instrument in question is irrevocable, a trustee or a beneficiary could bring a petition under Probate Code section 17200, but presumably not the settlor (unless the settlor were a beneficiary under the irrevocable trust). See Prob. Code, section 17200(a).
  13. Conservatorship of Irvine (1995) 40 Cal.App.4th 1334, 1341-1343.
  14. Ibid.
  15. Drake v. Pinkham (2013) 217 Cal.App.4th 400. Among the difficulties that arise from the Drake v. Pinkham approach is that the settlor can sign a new trust while the contest of the first trust is pending. If this occurs, the first contest becomes moot. The process can be repeated over and over again, frustrating any attempt at finality.
  16. Adkisson, The $867 Dispute Becomes an $883,654 Judgment in Ravet (Jan. 22, 2014) Forbes Magazine [hereinafter Adkission].
  17. Beyer, supra, at p. 7.
  18. Adkisson, supra.
  19. Ibid.
  20. Ibid.
  21. Matter of Restatement of Declaration of Trust Creating the Survivor’s Trust Created Under the Ravet Family Trust Dated Feb. 9, 2012, C.A. No. 7743-VCG, 2014 WL 2538887 (Del. Ch. June 4, 2014).
  22. Beyer, supra, at p. 62.
  23. Ibid.
  24. Letter Opinion, supra, at p. 1.
  25. Ravet v. The Northern Trust Company of Delaware and Barry C. Fitzpatrick, in Their Capacity as Co-Trustees, (Del. 2015).
  26. Beyer, supra, at p. 63. See also Davis, Ex-lawyer Convicted of Forgery, Bad Checks (Aug. 24, 2016) San Diego Union-Tribune
  27. Beyer, supra, at p. 63
  28. Beyer, supra.
  29. Ibid.
  30. Alaska Statutes, section 13.12.535.
  31. Alaska Statutes, section 13.12.530.
  32. The authors thank Jo A. Kuchle and Danielle Gardner, attorneys in Alaska, for providing insights into the Alaska procedures.
  33. Alaska Statutes, section 13.12.530.
  34. Alaska Statutes, section 13.12.540, subd. (a)(2).
  35. Alaska Statutes, section 13.12.545.
  36. Alaska Statutes, section 13.12.545, subd. (10).
  37. Alaska Statutes, section 13.12.545, subd. (11).
  38. Alaska Statutes, sections 13.12.565, 13.06.110.
  39. Alaska Statutes, section 13.12.570.
  40. Id.
  41. Alaska Statutes, section 13.12.555.
  42. Id.
  43. Alaska Statutes, section 13.12.560.
  44. Id.
  45. Alaska Statutes, section 13.12.575.
  46. Ibid.
  47. Alaska Statutes, sections 13.12.535, 13.12.590(1), 13.36.390(3).
  48. Roth v. Jelley, supra, 45 Cal.App.5th 655.
  49. Alaska Statutes, section 13.12.545(11).
  50. Moeller v. Super. Ct. (1997) 16 Cal.4th 1124, fn. 3.
  51. See Roth v. Jelley, supra, 45 Cal.App.5th 655 (holding that a beneficiary with a contingent future remainder interest in a trust was entitled to notice of a proceeding to modify that trust when his identity was known and his address could be determined).
  52. See Internat. Shoe Co. v. Washington (1945) 326 U.S. 310.


San Diego Probate Law

Basics Of Administering A Probate

What Does “Probate” Mean?

Basically, a “probate” is a court proceeding that is needed to transfer assets when someone passes away with assets in their individual name outside of a trust of a value higher than $166,250, with no beneficiary designation, no surviving joint tenant or other disposition (such as pay on death).

A probate may be needed whether or not somebody has a will. There has been a lot of negative press about probate in the past; however, the process can be relatively pain-free.

How Do You Start A Probate?

The first step to start a probate is to file a Petition for Probate with the court in the County where the decedent lived (or where the decedent owned real property) to appoint someone as the personal representative. 

Mailed notice of the hearing on the Petition for Probate must be provided to relatives and to those who are named in the will, if there is one.  A notice must also be published in a local paper putting “the world” on notice that the estate is going to be probated.  

If there are no objections, and all procedural rules are followed, a personal representative will be appointed by the court.   The personal representative basically stands in the shoes of the decedent to collect the assets for eventual distribution to the heirs or beneficiaries. The personal representative nominated in a will is known as an “executor,” and if there is no will, as the personal representative is known as an “administrator.”    

The personal representative will marshal the assets and file an inventory with the court that describes the assets and their value.

Once the assets are marshaled, and reported to the court on an inventory, the personal representative needs to handle other procedural duties, such as notifying certain authorities of the death (including the Social Security Administration, the IRS and the Franchise Tax Board), paying the decedent’s debts, preparing the last tax return for the decedent and preserving the assets of the estate.  Sometimes it is necessary to sell assets during the probate, which may require court confirmation.

Another requirement for a personal representative is to give notice to the decedent’s creditors and invite them to file claims for decedent’s debts.  Once the time has passed for creditors to file a claim, and all debts and taxes have been paid, the personal representative can prepare a final petition for distribution. Normally, that petition will include a full accounting of all of the assets, receipts and expenses of the estate. The final petition is set for a hearing, and once the petition is approved, the personal representative can distribute the assets of the estate to those entitled. 

How Much Does A Probate Cost?

The fees for standard services of the personal representative and their attorney are set by statute and are based on a percentage of the value of the assets under management in the probate estate. The personal representative and the attorney are both entitled to the same statutory fee. If there are extraordinary services provided, which can include (but are not limited to) handling a tax audit, selling real estate, or engaging in any kind of litigation over the estate assets, the personal representative and attorney can request “extraordinary fees”, which must be approved by the court. No fees can be paid to the attorney or the personal representative without a court order and normally not until the end of the administration.

There are some out of pocket costs that need to be paid as part of a probate proceeding, including court filing fees, the fee for the probate referee who will appraise the assets, the cost of publication of the notice in the newspaper and certified copies of orders.  The personal representative can seek reimbursement of these costs in the final petition to distribute the estate. 

The fees and costs involved in a probate are not significantly different than those incurred in a trust administration, which is handled outside the courts.  

One of the benefits of having a probate is that creditors are limited in their time to file claims. Another benefit is that the court will release the personal representative of liability at the end of the administration.

If the decedent has a will, the assets will be distributed as set forth in that will. If there is no will, the assets will be distributed according to the laws of intestate succession as set forth in the Probate Code. The intestate succession rules provide that the assets go to one’s relatives in descending order of closeness of relation.  Despite popular myth, the assets do not “go to the state” if there is no will.  And, there is no increase in the amount of taxes that may be due if there is no will.

How Long Does A Probate Case Last?

The probate administration process can take anywhere between approximately six months to sometimes up to two years to complete, depending on a variety of circumstances. The length of time of the probate can be affected by creditor claims, issues with selling or collecting assets, fights among beneficiaries, or other matters that can be out of the control of the personal representative.

If you have been named as an executor of a will or if there is no will and you are the person with priority to act as an administrator of an estate, it is important for you to contact an attorney with experience in probate administration to ensure that you handle the administration properly. There can be many pitfalls and as administrator you are subject to personal liability. It is always best to consult with an expert in this area to ensure a smooth process.

For more information contact Hughes & Pizzuto –


San Diego Probate Attorneys

What Role Should A Court-Appointed Attorney Play When Representing An Incapacitated Client?

Is The Attorney To Be An Advocate For The Client’s Interests?

When an incapacitated adult, or an allegedly incapacitated adult, must appear in probate court, probate courts often appoint an attorney to represent the incapacitated or allegedly incapacitated adult. Although the appointment of an attorney for an incapacitated adult or an allegedly incapacitated adult has been required by law in certain cases for years, the precise role that the appointed attorney is to play in the case is not well-defined.

Is the attorney to be an advocate for the client’s interests as determined by the client or is the attorney to tell the judge what the attorney thinks is in the client’s interests regardless of the client? Historically, many probate judges have expected and even required an attorney appointed to represent an incapacitated or allegedly incapacitated adult to function as a reporter to the court. That is, the judges expect the appointed attorney to file a report indicating the appointed attorney’s impressions, opinions, and conclusions regarding the propriety of the proceeding even if the attorney’s opinions and conclusions differ from those of his or her client. For example, an attorney appointed to represent an allegedly incapacitated adult might report to the court that a conservatorship for his or her client is appropriate when the client actually wants to resist the imposition of a conservatorship.

The Courts Have It Wrong

In this article, Anne and I argue that the judges who encourage or require appointed attorneys to provide their own conclusions to the court have it wrong, and that practice in probate courts around the state should change. According to the research done by Anne and Ralph, California law as it exists today already requires an appointed attorney to be a zealous and confidential advocate for the client’s interests as determined by the client and prohibits an appointed attorney from acting as a reporter to the court. Their conclusion is that the practice of encouraging and requiring reports from appointed attorneys may be traditional, but it is wrong. Instead, California probate judges should expect an attorney appointed to represent an incapacitated adult or an allegedly adult to advocate the client’s own interests, not the client’s interests as determined by the attorney.

Not All Judges Agree

Several probate judges around the state have responded to the article. Not all judges agree, but at least one probate judge has changed the local rules governing appointed attorneys practicing in her courtroom as a result of the article.

It is likely that legislation will be proposed to clarify that California law requires the appointed attorney to advocate the interests of his or her client, as determined by the client.

Below is a memo describing some information that we discovered recently that tends to support our conclusions in “A Lawyer is a Lawyer is a Lawyer.”


As a result of the publication of this article, Anne and Ralph have been invited to present their thoughts on the issue to three gatherings of California attorneys in October.

Both Anne and Ralph will speak at the Aviva K. Bobb Advance Court Appointed Counsel Training Program on October 5, 2019, in Los Angeles.

Anne will give a presentation to the California Young Lawyers Association in Monterey on October 11.

Both Anne and Ralph will present their thoughts to the estate planning attorneys assembled at the annual convention of the California Lawyers Association in Monterey on October 12.