TIPS OF THE TRADE: BRACE YOURSELF: WHY IN RE BRACE MAY PROVE 2020’S MOST SIGNIFICANT NON-PROBATE, NON-TRUST CASE FOR CALIFORNIA PROBATE AND ESTATE PLANNING PRACTITIONERS

By William Broderick-Villa, Esq.*

MCLE Article

A major benefit of membership in the Trusts and Estates Section of the California Lawyers Association is the Trusts and Estates Quarterly, which often points the practitioner to relevant crossover areas of law that might otherwise escape one’s radar. Two excellent, recent family law crossover articles¹ have a wealth of information to help the practitioner avoid common pitfalls. This article builds on that and analyzes the probate and estate planning ramifications of a crossover bankruptcy/family law case decided by the California Supreme Court on July 23, 2020: In re Brace.² This article specifically seeks to answer the following questions:

1. Is every California Joint Property ("JP") deed (in the form "To H and W as joint property" or "To H and W as joint tenants") presumptively invalid absent a written transmutation agreement?
2. If so, as In re Brace strongly suggests, who has standing to challenge such mischaracterization?
3. What duties does In re Brace impose upon the estate planning attorney who comes across married clients’ deeds purportedly showing title in joint tenancy?
4. When three parties, two of whom are married, purport to hold title as "joint tenants," must the attempted joint tenancy fail, as a matter of law, resulting, by default, in a tenancy in common as to the unmarried party?