sometimes enforcing against a

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Sometimes Enforcing Against a

Trust or Probate Feels Like a

Scooby Doo Mystery

Nancy Adams

DCSS Attorney

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A Child Support Specialist (CSS) comes to you for assistance:

▪ The CSS received information that Obligor’s parent died, and

Obligor is going to receive an inheritance.

▪ Is your staff trained to gather the information you need to

move forward?

Probate and Trust Enforcement

Discussion with Specialist

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Explain to the CSS that there are two primary ways to distribute a person’s assets after death:

▪ A Will is a legal document that governs the distribution of the decedent’s assets through the Probate Court.

▪ A Trust, like a will, is a legal document that governs the distribution of the decedent’s assets. However, a Trust is generally administered without the need to go through Probate Court.

▪ If the decedent did not create a Will or Trust, the decedent’s property will be distributed according to the laws of the state which usually includes approval by the Probate Court.



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When a party reports Obligor may be a beneficiary of a Will or a Trust, consider these important points:

▪ Mother/Father’s address may be provided to all interested parties when an Action is filed in Probate Court

▪ Joint Trusts

▪ Do not make any promises

▪ An Abstract of Support Judgment listed in CSE does not include assets that might be owed to the Obligor as a beneficiary

▪ Searching for any available information using other LCSA’s, Google, obituaries, assessor records, court systems, etc. If the CSS is unable to locate any information, it is the responsibility of the reporting party to provide more information

▪ The use of Accurint to search for the deceased is not permitted



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When a party reports Obligor may be a beneficiary of a Will or

Trust, gather as much of the following information as possible:

▪ Name of deceased and their relationship to the Obligor

▪ Date and County of death/Last known address of deceased

person

▪ Nature of assets (i.e. bank accounts, real property, etc.)

▪ If real property: address, pending sale, encumbrances?

▪ Determine whether the estate is in Probate or Trust

▪ Name of Executor or Trustee: address and phone number

▪ Obtain the names of any other beneficiaries



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If the Obligor is the beneficiary in a Probate Action, continue

gathering the following information:

▪ County where the Probate action is filed

▪ Docket number of the Probate action

▪ Court caption (entitlement of court action)

▪ Executor’s name, address, phone number

▪ Request a RUSH audit & UAP calculation

Probate Enforcement


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If the Obligor is the beneficiary in a Probate Action, initiate the

following actions:

▪ Add the Probate Docket to CSE

▪ Generate the Notice of Lien and Request for Special Notice in

CSE

▪ Ensure the audit is attached

▪ Verify with clerical staff that Party Receiving Support, Obligor,

and the Executor are served, service by mail is sufficient

Probate Enforcement


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If the Obligor is the beneficiary of a Trust, initiate the following

actions:

▪ Obtain the name, address, and phone number of the Trustee

▪ Obtain a copy of the Trust

▪ List any other beneficiaries named in the Trust

▪ Request a RUSH audit & UAP calculation

▪ Determine whether an Order of Exam (“OEX”) is necessary

Trust Enforcement


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If the Obligor is the beneficiary of a Trust and DCSS needs a copy of

the Trust:

▪ The LCSA needs the name and address of the Trustee in order

to have that person personally served with the OEX

▪ Once the Trustee is located, proceed with generating the OEX in

CSE use the information previously gathered for the Sworn

Declaration in support of the OEX

▪ The Declaration can be generated in CSE or it can be created

using Word

Trust Enforcement

Filing an Order of Exam

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A Sample Declaration in Support of an OEX:

On information and belief, Mr. T is the Trustee of the Trust, or the

Executor of the Estate created by Mrs. M, the mother of Respondent

Mr. X, the obligor in this matter. Mrs. M, the settlor or decedent, died

on or around 10/20/15. On information and belief, obligor Mr. X is the

beneficiary of the Trust/Estate and his interest in the Trust/Estate includes

real property located at ________, Pleasanton, CA 94566. The Trust/Estate

may also hold liquid assets including but not limited to bank accounts,

stocks and bonds. We believe that the Trustee Mr. T (obligor Mr. X’s

brother) is in possession and control of the M Trust/Estate documents,

information, and/or property soon to be disbursed to Mr. T, as he is the

Trustee or Executor. The M Trust/Estate documents are required to enforce

the judgment pursuant to Code of Civil Procedure sections 491.410,

708.410 and/or 709.010 and Probate Code sections 15300-15305.

Respondent’s arrears exceed $142,000.00 as outlined in the attached

accounting.

Trust Enforcement


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Include the specific language from the Probate Code as a warning:

IMPORTANT NOTICE TO TRUSTEE AND COUNSEL:

PROBATE CODE § 15303 (b) states:

If the trustee has knowledge of the transfer of the beneficiary's interest or has been served with process in a proceeding under Section 709.010 of the Code of Civil Procedure by a judgment creditor seeking to reach the beneficiary's interest, and the trustee pays to or for the benefit of the beneficiary any part of the income or principal that may be paid only in the exercise of the trustee's discretion, the trustee is liable to the transferee or creditor to the extent that the payment to or for the benefit of the beneficiary impairs the right of the transferee or creditor... (Emphasis added.)

Trust Enforcement


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▪ The OEX must be personally served on the Trustee

▪ The Obligor and Party Receiving Support can be served by mail

▪ Sometimes the Trustee will provide a copy of the Trust because he/she does not want to go to Court

▪ If the Trust appears legitimate, it is okay to vacate the hearing date

▪ On the other hand, the hearing provides an excellent opportunity to discuss the case and reach any potential agreements

▪ In some instances, the Trustee may not object to the Family Law Court ordering the Trustee to pay Obligor’s share to DCSS

Trust Enforcement


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▪ The Trustee brings the Trust to the Court hearing. If not, the matter is

set for review to ensure that the Trustee provides DCSS a copy of the

Trust. The Trustee is ordered to appear under the Order of Exam

▪ While the Trustee is under oath, this is also an opportunity for DCSS to

determine the assets in the Trust, the value of Obligor’s share, and the

timeframe for distribution

▪ The Trustee usually has many questions regarding the case but DCSS is

unable to answer their questions. However, we view the Trustee as

having a status similar to an employer. The Trustee needs some

information in order to determine the amount and where to pay. The

Trustee also needs to understand how our accounts accrue interest

which reflects the changes in the balance

Trust Enforcement


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▪ Once you receive a copy of the Trust, it is time to file the Petition

to Enforce Against Trust Beneficiary

▪ Normally, a Trust is created to protect the beneficiaries from

creditors

▪ The Legislature determined that the protection of a Trust will not

extend to beneficiaries who owe support arrears

▪ We will review the relevant code sections granting the Court the

authority to order the Trustee to pay any and all funds due the

Obligor, as a Trust beneficiary, to DCSS to satisfy support arrears

Trust Enforcement

Petition to Enforce Against Trust Beneficiary

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Even if the Trust states the Beneficiary’s interest in the Trust shall not be subject to claims of the Beneficiary’s creditors or legal process, the Beneficiary’s interest is subject to the enforcement of a money judgment.

Section 709.010(b) of the Code of Civil Procedure provides:

The judgment debtor's interest as a beneficiary of a trust is subject to enforcement of a money judgment …The judgment debtor's interest in the trust may be applied to the satisfaction of the money judgment by such means as the court, in its discretion, determines are proper….


Legal Authority

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Sections 15300 and 15301 of the Probate Code generally restrict the transfer of a

Beneficiary’s interest in a trust. However, both of these Sections are subject to

exceptions to the general rule.

Among those exceptions are Judgments against a Beneficiary for child and spousal

support. Probate Code 15305 (c) and (d) provide:

(c) Whether or not the beneficiary has the right under the trust to compel the trustee

to pay income or principal or both to or for the benefit of the beneficiary, the court

may, to the extent that the court determines it is equitable and reasonable under the

circumstances of the particular case, order the trustee to satisfy all or part of the

support judgment ….

(d) This section applies to a support judgment notwithstanding any provision in the

trust instrument.


Legal Authority

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The Law Revision Commission Comment to the 1990 enactment

deals with the purpose, scope and effect of Section 15305, as

follows, in pertinent part: “Although a trust is a spendthrift trust or

a trust for support, the interest of the beneficiary can be reached

in satisfaction of a money judgment against the beneficiary for

child or spousal support…A provision in the trust is not effective

to exempt the trust from enforcement of a judgment for support of

a minor child or support of a spouse or former spouse. As a general

rule, the beneficiary should not be permitted to have the

enjoyment of the interest under the trust while neglecting to

support his or her dependents....” (Emphasis added.) (Law Revision

Comments to Probate Code § 15305.)


Legal Authority

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California case law and public policy also authorize the Court to order Trustee to satisfy the

obligor’s support obligation. In Ventura County Department of Child Support Services v. Jeffrey C.

Brown, as Trustee, etc., (2004) 117 Cal. App. 4th 144, the Court of Appeal considered California’s

strong public policy in favor of the payment of support. “Under section 15305, even if the trust

instrument contains a spendthrift clause applicable to claims of support, it is against public

policy to give effect to the provision…. As a general rule, the beneficiary should not be permitted

to have the enjoyment of the interest under the trust while neglecting to support his or her

dependents.” (Id. at 155) The Court of Appeal stated that the beneficiary acted “with patent

disregard towards the support of his six children.”

The Court of Appeal made the following determination: “In light of the statutory and public

policy objectives in favor of the payment of support, we conclude appellant’s exercise of his

discretion was misdirected. To deny the trial Court authority to compel the exercise of a trustee’s

discretion in this instance creates the very problem that the statute was enacted to remedy-

avoiding the payment of the child support. The statute cannot have been intended to allow a

beneficiary to defraud support creditors by hiding behind the trustee’s discretion. This is directly

contrary to the legislative purpose behind section 15305.” (Id.)


Legal Authority

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In David Pratt v. Robert l. Ferguson, as Trustee, etc., 3 Cal.App.5th 102, 113-114 , the Court of Appeal,

Fourth District, examined the Second District’s analysis in Ventura County v. Brown, and issued a similar

holding as follows:

Probate Code section 15305 expresses this state's policy that child support judgments may be

enforced against the distribution of assets from a trust. Indeed, subdivision (d) of section 15305

specifically provides that “[t]his section applies to a support judgment notwithstanding any

provision in the trust instrument.” (Italics added.)

We have concluded, for reasons of public policy expressed in the statute, that the shutdown

clause cannot prohibit satisfaction of the final child support orders from periodic payments

of principal. The other distributions of principal and interest are all covered by the statute, as we

have explained. Thus, with respect to all distributions of income and principal of the Trust, the trial

court must exercise its discretion under Probate Code section 15305, subdivisions (b) and (c).


Legal Authority

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▪ The first seven paragraphs outline the history of the case and the chronology of the relevant Support Orders

▪ Paragraph eight basically sets forth the facts, similar to the OEX, again based on information and belief

▪ The DCSS Attorney must verify the Petition

▪ Points and Authorities are included as outlined above

▪ Also include the “Warning” per P.C. §15303(b) regarding the Trustee’s liability after receiving Notice from the Judgment Creditor seeking to reach the beneficiary’s interest

▪ Be sure to attach the relevant Support Orders, the accounting, and a copy of the Trust


Summary

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▪ In addition to the Petition:

▪ File an “Intent to Request Judicial Notice” (of the prior support orders attached to the Petition)

▪ Submit a “Proposed Order” which will be stamped by the Clerk’s office as “Received”

▪ Absent any objection the Proposed Order will become the Order of the Court

▪ All of the Documents need to be served on the Trustee, and counsel if s/he has an attorney, as well as the Obligor and Obligee (service by mail is sufficient)

▪ Once the POS is filed, the Clerk will file the Notice of Hearing which will also need to be served on the parties


Summary

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▪ Check your local rules to determine how the Probate department operates in the county where the LCSA will be filing

▪ CCC issues tentative rulings and the notes will indicate if any pleadings are missing or if the Court is requiring additional information like a POS or declaration

▪ Become familiar with the Probate examiners and how their office works. They tend to have unique office hours so try to contact them and resolve any issues well in advance of the hearing date

▪ If the notice and other procedural requirements are met, and there are no objections, the Court will sign the Order previously received as “Proposed”


Summary

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The Court signed the Order Enforcing Money Judgment Against Trust Beneficiary:

▪ DCSS attorney attends the Hearing in order to obtain the signed Order and take it to the Clerk’s office for filing

▪ The file-endorsed Order is served on the Trustee, and counsel if s/he has an attorney, as well as the Obligor and Obligee (service by mail is sufficient)

▪ Contact the Trustee to let him/her know how to make the payment to the SDU and how much to pay


Summary

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Potential grounds for Objection:

▪ Restrictions regarding distribution of entire share

▪ Spendthrift Clause

▪ The Dependent is provided for in the Trust

▪ The Court has discretion to order less than payment in full under the Probate Code

▪ The Settlor gave the Obligee money as and for child support and these amounts were not applied to the account

▪ The Ventura v. Brown and Pratt v. Ferguson cases do not apply


Potential Obstacles: Trustee files Objection

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DCSS files a Reply to the Trustee’s Objection:

▪ Reiterate the law regarding Probate Code Sections 15301 & 15305 as previously outlined in the Petition

▪ Argue that Ventura v. Brown and Pratt v. Ferguson cases apply

▪ Address the issue that the Trustee has no standing to dispute the underlying arrears

▪ Argue that the Trust grants the Trustee discretion in exercising his fiduciary duty to hold and administer the Obligor’s share for his benefit

▪ As such, it is in the Obligor’s benefit to pay the arrears in full or to make a monthly payment that would cover all the interest and some principal so that the arrears would begin to decrease


Potential Obstacles: Trustee files Objection

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A provision in the Trust was problematic and it was clear the Court was concerned:

Under the terms of the TRUST, OBLIGOR, is entitled to receive one third share of the Trust Estate to be held in trust with TRUSTEE to hold and administer for OBLIGOR’s benefit, until he is able to complete a drug rehabilitation program of TRUSTEE’s choice and remain drug-free for a period of five (5) years with bi-annual drug tests at a testing facility of the TRUSTEE’s choice. TRUSTEE is to give OBLIGOR fifteen hundred dollars ($1,500.00) per month. TRUSTEE may in his discretion give one thousand dollars ($1,000.00) more per month to OBLIGOR, if he participates in a program as stated above in the TRUSTEE’s discretion.


Potential Obstacles: Court’s Discretion

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What happens when the Court issues the Order to Enforce Against the

Trust Beneficiary and the Trustee still refuses to pay?

▪ DCSS can file a Motion for Joinder

▪ The Motion for Joinder is done in the Family Law action

▪ The Declaration in support of the Motion for Joinder simply outlines

the proceedings that occurred in the Probate action and why the

Joinder is necessary in the Family Law action

▪ Once the Trustee is joined as a party, we have additional

enforcement actions available

▪ Contempt Action, Subpoena power


Potential Obstacles: Motion for Joinder

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In this case, the Court:

▪ Joined the Trustee as a party

▪ Confirmed the orders issued by the Probate Court

▪ Ordered that the payment be made in 30 days and set the

matter for review

In this case, the Trustee:

▪ Finally complied and paid the arrears in full in 30 days

▪ The Hearing date was vacated and the case was closed


Potential Obstacles: Motion for Joinder

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The Trust is administered in another state:

▪ A Petition to Enforce would not be an option

▪ If the Trustee lives near the County where the family law action was initiated, then an OEX would be appropriate

Assuming the OEX is productive, and you receive a copy of the Trust, depending on the provisions of the Trust, a motion for Joinder may be appropriate

The Trust is administered in another County in California:

▪ Communicate with Supervising Attorney to determine whether an attorney from CCC will appear or if an attorney from another LCSA will be able to appear on CCC’s behalf

▪ This may also require a cost/benefit analysis

▪ If no attorney is able to appear, then the Petition cannot be filed—However, this should no longer be an issue with the recent increase in Zoom and telephonic appearances.


Potential Obstacles: Where the Trust is Administered

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The Trustee resides in another state:

▪ It is not an issue if we have a copy of the Trust

If we have a copy of the Trust and the Trust is being administered in California, we can proceed with the Petition assuming a DCSS attorney can appear

▪ If we do not have a copy of the Trust, we CANNOT proceed

An OEX cannot be served outside of the State

The Trustee resides in another County in California:

▪ California Code of Civil Procedure section 708.160 (b) states:

A person sought to be examined may not be required to attend an

examination before a court located outside the county in which the person resides or has a place of business unless the distance from the person's place

of residence or place of business to the place of examination is less than 150 miles.

▪ If the Trustee resides or has a place of business beyond 150 miles from the Court, we CANNOT proceed, or can we…..


Potential Obstacles: Where the Trustee Resides

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708.160. (a) Except as otherwise provided in this section, the

proper court for examination of a person under this article is the court in which the money judgment is entered.

(b) A person sought to be examined may not be required to attend an examination before a court located outside the county in which the person resides or has a place of business unless the distance from the person's place of residence or place of business to the place of examination is less than 150 miles.

(c) If a person sought to be examined does not reside or have a place of business in the county where the judgment is entered, the superior court in the county where the person resides or has a place of business is a proper court for examination of the person.

(d) If the judgment creditor seeks an examination of a person

before a court other than the court in which the judgment is entered, the judgment creditor shall file an application with an affidavit of facts in support.

Trust Enforcement


The Trustee lives in a Distant County

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▪ All the parties live out of state (father, mother, and the trustees) so there is no way to haul them into Court on an OEX or subpoena.

▪ Filed OEX of Attorney who prepared Trust. Attorney testified that he does not represent any of the Trustees. He states that he helped the settlor execute her Trust 10 years ago and had no contact with the family. He also asserted that he could not reveal any information pursuant to attorney-client privilege. No legal authority to overcome privilege.

▪ Supervisor not inclined to authorize a Lis Pendens against the property or a specific lien since the house is in the name of the Trust.

▪ Letter to mother informing her that we cannot take any further action without a copy of the Trust, and she may want to consider seeking legal counsel for further action she can pursue personally.

▪ We never received a copy of the Trust, but the Trustee paid voluntarily. The Obligor authorized her to discuss the case and she negotiated/facilitated a Stipulation: lump sum payment of $82K (Principal is $81,746.34 and Interest is $55,478.53). Mother essentially waived the interest and received her lump sum payment.

▪ Obligor experienced chronic homelessness as a result of mental health and substance abuse issues, enrolled in a controlled living environment as a part of a local community program attempting to provide a holistic solution for those in need

▪ Today, I would have proceeded differently under the same facts: filed Petition based on “Information and Belief” that Obligor was a beneficiary of the Trust, outlined the evidentiary basis and requested a specific lien on the property since the property was located in CCC

Trust Enforcement


The case of the Out of State Trustee

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▪ Signing Agreements wherein Jurisdiction over the

Agreement is in another State. Does the attachment 16

provide adequate protection?

▪ Lump-Sum Income Withholding Orders have been

effective in Trust cases where the Trustee resides, and

the Trust is administered out-of-state.

Trust Enforcement


Additional Out-of-State Issues

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▪ There will be occasions when the party receiving support does not agree with the

LCSA’s decision regarding further action

▪ Usually, a situation where there are jurisdictional issues or other counties are involved

and the outcome is unpredictable

▪ We have created letters wherein we reiterate to the party receiving support that our

office does not represent her/him and our office encourages her/him to seek

independent legal counsel preferably from an attorney who practices both family law

and probate law.

Trust Enforcement

Potential Obstacles: Party Receiving Support is Adverse

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▪ There will be occasions when the Obligor is the Trustee

▪ Usually, the hardest cases to handle because the Obligor has already illustrated a disregard for complying with Court orders

▪ There is a substantial possibility that he will not provide a copy of the Trust, and if we obtain a copy from another source, there is still a substantial possibility Obligor will not comply with the Order to Enforce Against Trust Beneficiary

▪ Contempt is a possible enforcement option but there is still no guarantee that it will result in payment

▪ It is also challenging because escrow companies will issue funds to an Obligor, as a Trustee, even if there are liens against his name via our Abstract of Judgment

▪ It is my understanding that the title of “Trustee” precludes the title search against an Obligor’s name because he is not receiving the funds as a seller, or person with interest in the property, nor is he a party to the purchase agreement, the “Trust” is the party in interest

Trust Enforcement

Potential Obstacles: Obligor is the Trustee

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▪ There will be occasions when the Obligor dies before the Trust is administered

▪ If the Trust has a provision stating that Obligor’s share shall be redistributed to the other beneficiaries (i.e., each beneficiary was to receive 1/3 but will now receive 1/2), then our office can take no further action

▪ What if the Trust has a provision stating Obligor’s share would be distributed to his issue?

▪ We normally do not compete with the interest of Obligor’s children

▪ Usually, the Party Receiving Support agrees and backs off; however, this position varies especially if the children are from a different relationship

▪ We usually inform the Court that we will defer to the Court’s discretion

▪ This would also be another point when our office would send the Non-Representation Letter to the Party receiving support so she/he could determine their next action

Trust Enforcement

Potential Obstacles: Obligor Dies

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Money judgments for current support and for arrearages are enforceable after the death of the obligor. (In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1106)

Question:

The Obligor has one minor child whom he is supporting. The Obligor has been ordered to pay $1,000 per month in child support. If the Obligor dies, how will his support obligation be affected?

A. The support obligation terminates on death

B. The obligation will continue unless the child is an heir of the estate

C. The obligation will continue regardless of the circumstances

D. Support will be payable until the completion of the probate

What if the Obligor is the Decedent?

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The correct choice is C.

The correct answer to this question hinges on the difference between

"obligation" and "support." The "obligation" to pay child support always

survives the death of an obligor. However, whether the "support" can be

collected depends upon the solvency of the estate, among other things.

Further, the presumption in most cases is that a surviving child would be a

direct beneficiary of the obligor's estate, so a continuing support action

may not be necessary or appropriate.

The Obligor is the Decedent

“Obligation” v. “Support”

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▪ A Creditor's Claim will be effective in collecting arrears in a probate

action in which the Obligor is the decedent. (Probate Code §§ 9000, et.

seq.)

▪ A Creditor's Claim is a simple Judicial Council Form and must be filed

within four months after Letters of Administration/Probate are issued

or 60 days after the creditor receives notice, whichever occurs later

(Probate Code § 9100(a)).

▪ Under Probate Code § 9103, a creditor is allowed, with leave of court, to

file a claim after this time if the creditor can show that he was not

served with notice.


Creditor’s Claim

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▪ “Creditor's Claim (Probate)” is Judicial Council Form DE-172.

▪ It is also good practice to simultaneously file a Request for Special

Notice (Judicial Council Form DE-154) pursuant to Probate Code § 1250,

et seq. Said form will ensure that notice of all further actions is served

upon DCSS.

▪ Filing/Service: File the original with the Court with proof of service by

mail to the Personal Representative and his or her Attorney. (Probate

Code § 9150(b)) Our office also serves the custodial and non-custodial

party.

▪ An allowed Creditor’s Claim is paid during administration of the Estate.


Creditor’s Claim

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▪ Allowance or Rejection of Claim – The Personal Representative is

required to allow or reject in whole or in part. (Probate Code §9250).

▪ There is no statutory time limit to accept or reject a claim, but failure to

accept it within 30 days can, and should be, be treated as a rejection,

thereby entitling the creditor to maintain an action on the claim.

(Probate Code § 9256)

▪ If the claim is rejected, or no acceptance is received within 30 days, the

creditor should file suit on the claim or request summary determination

within 90 days. (Probate Code§ 9353)

▪ The LCSA may also consider filing in the Family Law Action for

Determination of Arrears and Joinder of Administrator


Creditor’s Claim: Allowance/Rejection

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The priority of debts are basically as follows:

1) Expenses of administration;

2) Obligations secured by mortgage, trust deed, other liens,

including a judgment lien;

3) Funeral expenses;

4) Last illness expenses;

5) Family allowance;

6) Wage claims; and

7) General debts (including judgments not secured by a lien)

(Probate Code § 11420)


Creditor’s Claim: Priority of Payments

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1. The Obligor is a beneficiary of an estate. A probate has been opened

and the estate has not distributed. You learn that the Obligor has

"disclaimed" his entire interest in the estate after you filed a lien and served

a writ. What can you expect to receive from this estate?

A. The full amount of your lien, if the Obligor's share is large enough

B. The full amount of your lien, up to one-half of the Obligor's share of the

estate

C. One-half of the amount of your lien, if the Obligor's share is large enough

D. Nothing


Review Questions

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1. The correct choice is D.

With a certain few exceptions, any beneficiary of an estate may "disclaim"

his interest in the estate by filing a "Disclaimer of Interest" (Probate Code §

260 through § 275). The disclaiming party is treated as having pre-

deceased the testator. Therefore, the Obligor in this question would have

no interest in the estate from which to collect child support. Disclaimers are

not fraudulent, but the timeliness of a disclaimer may be an issue (Probate

Code § 279 sets out the time limits- conclusively reasonable if filed within

nine months after death of testator).


Review Questions

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2. The Obligor is a primary beneficiary of a Living Trust that includes real

property that has been sold and is in Escrow. You would like to collect the

Obligor's share of the Trust in order to pay support arrears. Which of the

following options are viable?

A. Serve a writ of execution on the Trustee

B. Serve a writ of execution of the Trustee and also file a lien

C. File a Petition to Enforce a Money Judgment Against the Trust

Beneficiary

D. File a creditor's claim


Review Questions

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2. The correct choice is C.

Code of Civil Procedure § 709.010 (b) states that "[t]he judgment debtor's interest as

a beneficiary of a trust is subject to enforcement of a money judgment only upon

petition under this section by a judgment creditor to a court having jurisdiction over

administration of the trust...." It also authorizes a judgment creditor to petition the

probate court to apply a support debtor-beneficiary's interest in a trust to satisfy a

money judgment by such means as the court, in its discretion, deems proper. Note

that, pursuant to CCP § 699.720(a)(8), the interest of a TRUST BENEFICIARY is NOT

subject to a writ of execution. Please also note that the Probate Code clarifies that

that a "support judgment" includes a money judgment for child support (Probate

Code§ 15305 (a)).


Review Questions

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3. In the previous question, you have reviewed the trust instrument and found a "spendthrift" clause that essentially states that no money shall be distributed to any beneficiary if such a distribution would be subject to creditors of that beneficiary. You know that "such spendthrift" clauses are perfectly legal in California. What should you do?

A. Proceed with your enforcement action in the trust case as usual because even though you know that such "spendthrift" clauses are valid and enforceable under California trust law, they do not apply to child support creditors.

B. Nothing, because it would be a waste of time to try to invalidate or overcome the "spendthrift" provision in court.

C. Nothing, because even without such a "spendthrift" clause, the trustee has discretion under California trust law not to distribute, if he so chooses.

D. Take the day off and go to the Warriors game.


Review Questions

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3. The correct choice is A.

Regardless of what restraints or protections a trust may provide against an obligor's

creditors, such protections have been statutorily removed relative to claims by the

government for child support. See Probate Code §§ 15305 (c) and (d). In fact, the

Law Revision Commission Comments to Probate Code § 15305 state in part that

"[a]lthough a trust is a spendthrift trust or a trust for support, the interest of the

beneficiary can be reached in satisfaction of a money judgment against the

beneficiary for child or support. In some cases, a spendthrift clause may be

construed as not intended to exclude the beneficiary's dependents" (See also Estate

of Johnson, (1967) 252 Cal. App. 2d 923, discussing public policy relative to

dependents of trust beneficiaries; Ventura County Department of Child Support

Services v. Jeffrey C. Brown, as Trustee, etc., (2004) 117 Cal. App. 4th 144; David Pratt

v. Robert l. Ferguson, as Trustee, etc., 3 Cal.App.5th 102).


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4. You find out that the recently-deceased Obligor held title to a very large

and expensive home in joint tenancy with his mother. What type of

probate/estate action would you seek to establish to attempt to collect

arrears?

A. Have the public administrator initiate a probate

B. Petition the probate court to have the joint tenancy declared void, as

against public policy

C. None. Look for some other type of enforcement actions

D. None. Just wait for the Obligor's mother to sell the house or die, then

collect the arrears.


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There is nothing you can do relative to estate or probate enforcement in

this situation. Joint Tenancy is the classic "probate avoidance" device. No

interest in a joint tenancy pass to the decedent's creditors or, directly to the

creditors of the surviving joint tenant. Swan v. Walden (1905) 156 Cal. 195;

Ferk v. County of Lake (1988) 205 Cal.App.3d 268.


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5. The Obligor dies leaving an all-cash estate worth $10,000.00 and a probate action is commenced. You have properly filed a creditor's claim seeking payment of $6,000.00 in arrears. At the time of final distribution of the estate, it is determined that the debt in the Obligor's estate is as follows: $2,000.00 in estate administration fees; $4,000.00 in funeral expenses; $18,000.00 in last illness expenses. How much do you expect to receive for payment of the child support arrears?

A. Nothing. The other debts take priority over child support.

B. Nothing. Although all the debts listed do not take priority over child support, last illness expenses do.

C. $6,000.00 because Family Code § 4011 clearly states that child support has priority over all debts.

D. $4,000.00 because estate administration fees and funeral expenses only have priority over child support.


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5. The correct choice is A.

During payment of Creditor's Claims, the administrator must follow the statutory

priority of payments when deciding which claims to pay first. The priority of debts

are basically as follows: 1) expenses of administration; 2) obligations secured by

mortgage, trust deed, other liens, including a judgment lien; 3) funeral expenses; 4)

last illness expenses; 5) family allowance; 6) wage claims; 7) general debts (including

judgments not secured by a lien) (Probate Code § 11420). Thus far, the issue of

priority has not arisen in any estates claimed on by our LCSA. I believe that our

judgments may have priority equal to judgment liens not secured by a lien. I do not

believe that the priority set forth in Family Code § 4011 trumps or modifies the

priority of payments as set forth in the Probate Code. Remember, the final

distribution of an estate is a complete and total bar to any further claims. Therefore,

timeliness is very important in these matters.


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6. Oftentimes the most substantial asset a Decedent leaves is a life

insurance policy. How should the LSCA approach this type of asset for

purposes of collecting child support after the Obligor's death?

A. Very carefully, making sure to poke it first to make sure it won't

bite

B. Treat the life insurance proceeds just like any other estate asset

C. It is not an estate asset at all, but it may be available for

enforcement

D. Serve a writ against the representative of the company that issued

the policy


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A life insurance policy on the life of the Decedent is usually classified as a

contract benefit and is not part of the probate estate. Because of this, most

life insurance policies cannot be reached through probate-like methods.

However, other methods of enforcement may be available.


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Nancy Adams, DCSS Attorney

[email protected]

(925) 957-2381

Please be sure to complete

the session evaluation.