Filed 4/3/20 CERTIFIED FOR PARTIAL PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ANNEMARIE DONKIN et al.,

Plaintiffs and Respondents.

v.

RODNEY E. DONKIN, JR., et al. as Trustees, etc.,

Defendants and Appellants, B2 93127

(Los Angeles County Super. Ct. No. BP109463 )

APPEAL from an order of the Superior Court of
Los Angeles County, David J. Cowan , Judge. Affirmed. Rodney E. Donkin, Jr., in pro. per ., f or Defendant and Appellant Rodney E. Donkin, Jr

., as Trustee, etc. Vicki R. Donkin, in pro. per., for Defendant and Appellant Vicki R. Donkin, as Trustee , etc

. Mark H. Boykin f

or Plaintiffs and Respondents Annemarie
Donkin and Lisa B. Kim

.

 Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of the Factual and Procedural Summary post , and the Discussion post , parts A. and B.2 Appellants Rodney E. Donkin, Jr.

, and Vicki Rose Donkin (Trustees), as successor trustees of a family trust established by Rodney Donkin

, Sr.

, and Mary D onkin (Trustors), appeal
from an order in which the trial court rejected Trustees’ proposed interpretat ion of the trust , reflected in their petition for
instructions

. Specifically, the court concluded the trust was not a continuing discretionary spendthrift trust and instead obligat ed
Trustees to distribute a portion of the trust estate to respondents
Annemarie Donkin and Lisa B. Kim (Beneficiaries) “as soon as is practicable” after both Trustors die d

. The trial court f urther concluded that Beneficiaries’ efforts seeking such distribution via a petition for surcharge and to account were not barred by the
statute of limitations in Probate Code 1 section 16061. 8, because
these efforts did not constitute an action “contest [ ing ] ” the trust. (§ 16061.8.) We agree with the trial court on both points. We further reject Beneficiaries’ contention th at , because the Trustees represent themselves in their dispute with Beneficiaries regarding the interpretation of the trust, the Trustees engaged
in the unauthorized practice of law. Accordingly, we affirm.

1 Unless otherwise indicated, all further sta tutory references are to the Probate Code.3 FACTUAL AND PROCEDURAL SUMMARY

A

. The Donkin Family Tr ust In August 198 8, Rodney E. Donkin (Rodney

, Sr. ) 2
and Mary E. Donkin (Mary), a married couple

, executed a
revocable trust as part of their estate plan, which they then
amended in 2002 (the t rust d ocument)

. 3 Ac cording to the t rust d ocument, the primary beneficiaries of the t rust after the death of both Trustors were their children: Rodney E. Donkin, Jr. (Rodney

, Jr.); Lisa B. Kim (Lisa); and Annemarie N. Donkin (Annemarie). “ Rodney Jr

. and his wife Vicki R. Do nkin

were named as ‘ [f] irst’ co

- successor tru stees, while Lisa and
Annemarie

. . . were releg ated to the position of ‘ [s] econd’

co

- successor trustees.” 4 ( Donkin II, supra

, B266036

, at p. 4 .)
Th e t rust d ocument provides that, upon the death of
the first Trustor (the p redeceasing s pouse or d ecedent) , “the
Trustee shall divide the T rust E state into t wo

. . . separate shares ” : (1) the “ Survivor’ s T rust” ( Trust A )

, consisting of the surviving spouse’s interest in Trustors’ community property and

2 To avoid confusion, we use first names to identify the various members of the Donkin family. No disrespect is intended thereby.

3 The effect of the 2002 amendment is not at issue on appeal.

4 In our March 2 017 unpublished opinion, Donkin v. Donkin (Mar. 29, 2017, B266036) ( Donkin II ), we summarized many of the key underlying facts of the dispute between the parties. We republish portions of that summary in our recitation of the relevant factual background.4

the s urviving spouse’s separate property, and (2) the “ D ecedent’s
M arital S hare

, ” co nsisting of the p redeceasing s pouse’s interest in the community property and the p redecea sing s pouse’s separate property. (Underlining omitted.) Upon the death of the surviving spouse, the t rust d ocument requires the t rustee to further divide the d ecedent’s m arital

s hare into d ecedent’s Trust B and d ecedent’s Trust C. T he

t rustee is to include in Trust B only assets in an amount up to the maximum marital deduction from federal estate tax

, 5 and to
allocate the remainder of the m arital s hare to Trust C.

5 In Donkin v. Donkin (2013) 58 Cal.4th 412, 416 ( Donkin I

), the California Supreme Court explained the marital deduction and its role in estate planning as follows: “Federal law allows the property of a deceased spouse to be passed to the surviving spous e without payment of federal estate tax through the allowance of a ‘marital deduction.’ (Int.Rev.Code, § 2056.) The value of the estate of the surviving spouse is increased by such a passage of assets and it may be enlarged to the point where it will exc eed the federal unified tax credit allowable
to the estate when the surviving spouse dies. ( Id. , § 2010 . . . .) A common method of addressing such a situation, having the purpose of minimizing the estate taxes owed, is to provide for the transfer to the surviving spouse of only as much of the deceased spouse’s property as necessary to reduce the deceased spouse’s estate tax to zero with use of the applicable federal estate tax exemption. The property remaining in the deceased spouse’s estate is placed in a bypass trust, which makes those assets available for the surviving spouse’s use but does not give the surviving spouse rights to the property in the bypass trust that would cause any of the undistributed trust property to be included in the taxable esta te of the surviving spouse upon his

or her death. [Citations.] Thus, ‘the undistributed assets of the5 1

. Revocability “[T]he surviving spouse’s Trust A remains revocable” after
the p redeceasing s pouse dies. By contrast, “ [u] pon the death of [the p redeceasing ] s pouse

. . . [d] ecedent’s T rusts B [and] C

. . . become irrevocable.” (Underlining omitted.) Other provisions
i n the t rust describe Trusts B and C as becoming irrevocable “[u]pon creation of such Trust shares [B and C] .” Given that the

t rust d ocument obligates the t rustee to create shares B and C

“ [ u ] pon the death of [the p redeceasing] s pouse ,” however, these provisi ons effectively render Trusts B and C irrevocable upon the death of the p redeceasing s pouse

. (Underlining omitted.) “Upon the death of both [ T rustors ], the entire T rust becomes irrevocable.” (Underlining omitted.)

2

. Allocation and d istribution u pon the d eath of the s urviving s pouse
T he t rust further provides that, “[u] pon the death of
the S urviving S pouse, the T rustee shall hold, administer and
distribute the T rust in the following manner.” The provisions that immediately follow do several things. First, they allow for the distribution of T rustors’ personal pro perty per a separa te memorandum Trustors may choose to execute

. Second, they give the t rustee discretion “[a]t any time prior to the division
of the trust into shares as hereinbefore provided, or prior

to distribution if divided,” to provide sums for “care and maintenance, medical needs, and educa ti on of any primary beneficiary ” and to make “ E xtraordinary D istribution [ s ] ”

decedent’s estate . . . “bypass” the survivor’s estate.’ ” ( Donkin I,

supra , 58 Cal.4th at p. 416.)6

for “worthwhile personal, professional or business goals ” of a beneficiary. (Underlining omitted.) Third, they instruct the

t rustee not to make distributions to any beneficiary deemed by

a court to be incompetent , and permit the creation of a special
needs trust under such circumstances

. Fourth, they in struct the t rustee to reduce any beneficiary’s share by the amount of any loan or gift made to the beneficiary by the t rust. At the conclusion of these provisions, the t rust d ocument identifies the primary beneficiaries and requires that “[w] hen
the above conditions are satisfied, the debts and obligations of
the T rust E state have been paid, and any special bequests have been distributed, the T rustee shall allocate and divide [ the ] T rust E state as then constituted into s eparat e shares so as to provide one share for each of the designated P rimary B eneficiaries liv ing at the death of the S urviving S ettlor

. ” (Italics added.) Finally, “the T rustee shall distribute the shares allocated to P rimary
B eneficiaries outright as soon as is practicable .” (Italics added.)

B

. Mary’s Efforts to Amend the Trust Document In 2002, Rodney

, Sr.

, died. In 2004, shortly before her own death, Mary executed a n amendment to the t rust d ocument (the c ontested a mendment).
The c ontested a mendment “ did two things. First, it substituted

a new paragraph regarding the allocation of the trust assets
after her death as the surviving spouse. Instead of directing

an immediate allocation and division of the assets into separate
shares f or the beneficiaries, the new paragraph grants the

successor trustees

— which would ini tially be Rodney Jr. and
Vicki

— ‘complete discretion’ after the death of Mary to retain
the assets of the F amily T rust intact and to continue to manage the property for the equal benefit of the primary beneficiaries.7

Among other things, the new paragraph granted the successor trustees ‘sole discretion’ over distribution of income and principal
from the T rust to the beneficiaries. ” ( Donkin II, supra

, B266036, at p. 5 .) The language in the c ontested a mendment did not differentiate between Trusts A, B, and C in any respect

. In 2005, Mary died.

C. Litigation and Resulting Law of the Case Regarding the Trust Document ’ s No Contest P rovisions

The t rust d ocument contains a no contest clause

. T he

c ontested a mendment also includes a no contest clause, phrased slightly more broadly than that in the t rust d ocument

. For several years beginning in 2008, Trustees and B eneficiaries litigated issues involving the no contest clauses and the effect of
the c ontested a mendment.

1. Beneficiaries’ 2010 p etition for s urcharge and to a ccount Primarily, Trustees and Beneficiaries litigated whether Beneficiaries would trigger either no contest clause by filing a petition seeking an order for surcharges and to account based

on Trustee s ’ alleged failure to distribute the assets in Trusts B
and C upon Mary’s death (the 2010 p etition ). (See generally
Donkin II, supra

, B266036, at pp. 6

- 8 .) B eneficiaries based the
2010 p etition on their reading of the t rust d ocument provisions governing the distribution of d ecedent’s Trusts B and C , and their
view that Mary lacked authority to alter these terms through the

c ontested a mendment, because Mary exe cuted it after Trusts B
and C had become irrevocable

. (See Donkin I, supra, 58 Cal.4th at pp. 435

– 436

. )8 2

. California Supreme Court d ecision (Donkin I) Changes in the Probate Code sections regarding no

contest clauses 6 further complicated this dispute, resulting in a 2013 California Supreme Court decision. (See Donkin I

, supra , 58 Cal.4th 412.) In the portions of that decision relevant to our current analysis, the Court held that, under either the new or the old law regarding the enforceability of no contest provisions

, “the no contest clauses in the [ t rust d ocument ] are unenforceable against” the 2010 p etition “challenging the conduct of the
successor trustees under the asserted authorit y of the [ c ontested] [a] mendm ent ” ( id

. at p p

. 415

– 416 )

, because the 2010 p etition does not constitute a “contest” as defined in section 21311, subdivision (a). ( Donkin I

, supra , 58 Cal.4th at p. 432 ; see § 21311 , subd. (a) [itemizing the “types of contests” against
which a no contest clause may be enforced].) Rather, the Court explained, the 2010 p etition sought an interpretation regarding the effect of the c ontested a mendment on the t rust d ocument, and requested distribut ion in accordance with Beneficiaries’ preferred interpretation, neither of which violate s a no

- contest clause. ( Donkin I

, supra , at pp. 432

– 433 & 435

- 436 .)

6 “On January 1, 2010, changes to the Probate Cod e eliminated the safe harbor provisions of section 21320, pursuant to which a party could obtain a declaration from the court prior
to instituting an action that the proposed action would not violate the no contest clause of the instrument at issue.” ( Don kin II,

supra , B266036, at p. 6.)9 3

. Trustees’ 2014 p etition for i nstructions In further trial court proceedings on remand from the Supreme Court, Trustees filed a petition for instructions with
the trial court (the 2014 p etition). The 2014 p e tition raised

two issues, only one of which is relevant t o the current appeal. Namely, it sought instructions regarding “ the proper
in terpretation of the allocation paragraph in the T rust as amended by the [ c ontested] [a] mendment.” ( Donkin II, supra

, B266036, at p. 10 .) This request tracked the Supreme Court’s comment that “[i]t is up to the court or arbitrator to rule on
the merits of the parties ’ conflicting interpretation of the trust instrument in the future, if the beneficiarie s choose to pursue
their claims [in the 2010 petition] .” ( Donkin I, supra, 58 Cal.4th at p. 438

. ) The 2014 p etition effectively asked the trial court to issue such a ruling.

4

. The 2017 d ecision of t his c ourt (Donkin II)
The trial court’s initial decisions regarding the 2014

p etition and 2010 p etition resulted in another appeal to this

c ourt. We reversed in part, because the trial court had refused to hear the 2014 p etition, based on its incorrect conclusion that the petition presented only issues already decided by the Supreme
Court in Donkin I

. ( Donkin II, supra

, B266036, at p. 22 .) We
remanded for the trial court to h ear and decide the 2014 p etition. ( Id. at p. 30. ) It is the trial court’s decision following such remand that is currently before us for review.10 D

. Trial Court’s June 2018 Order In minute orders dated October 27, 2017 and January 17, 2018, t he court provided a detailed and thoughtful discussion of the September 2014 petition and, relatedly, certain issues
involved in the 2010 p etition

. Specifically, t he trial court concluded that , following the death of Rodney

, Sr.

, in 2002, the d ecedent’s Trus t B became irrevocable, mea ning that Mary lacked authority after that point to “alter the terms of the T rust as they pertain to Trust B. ” As such, Trust s B and C were to be distributed on the terms set forth in the t rust d ocument , not the c ontested a mendment. The court further concl uded that the t rust d ocument provisions, when read together, required the “Trustees

. . . to have distributed to Beneficiaries their share of what
Trustees should have allocated to Trust B upon Mary passing.”
In reaching this conclusion, the court rejected Trustees ’ argument s that t rust d ocument provisions granting the
T rust ee s discretion with respect to “ S upport and E ducation”
and “ Ex traordinary D istribution” rendered the entire t rust a “conti nuing conditional discretionary , spendthrift trust that
did not require the assets to be distributed immediately upon Mary’s death.” (Underlining omitted.) “That T rustees have certain discretionary powers and have general powers do not
in and of themselves giv e them discretion to disregard specific provisions of the T rust. Discretion does not include just doing whatever Trustees wanted.” The court based its analysis on its interpretation of
the t rust’s allocation, distribution and revocability provisions,

cons idering them in the context of the larger t rust d ocument. The court rejected Trustees’ argument that it should consider11

extrinsic evidence of Mary’s intent in executing the c ontested

a mendment, explaining that, given the inability of the c ontested

a mendmen t to govern Trusts B and C, the only intent potentially relevant to interpret ing provisions governing Trusts B a nd C

was the intent of Mary and/or Rodney

, Sr.

, in drafting the t rust d ocument

. Having determined that the t rust obligated the Trustees

to allocate and dist ribute the assets in Trusts B and C to B eneficiaries upon Mary’s death , the court continued the 2010

p etition for surcharge “for further hearing to determine whether Trustees are liable or not, and if so, in what amount, for the alleged su rcharge in view of the [court’s] decision . . . and in connection with accounting s for the relevant time periods. ”
Such continuance was necessary , the court explained, because
it needed to determine what “amounts or assets . . . should have
been distribu ted on Rodney’s death and what was not, ” and, in turn, “what should have been distributed when Mary died.” Finally, the court rejected Trustees’ argument that the
2010 p etition is barred by the statute of limitations set forth
in section 16061.8

. The court explained that this section applies only to “contests,” and that the California Supreme Court had already concluded that respondents’ 2010 petition did not constitute a “co ntest.” ( Donkin I, supra , 58 Cal.4th at p. 432.)
The court issued a June 25, 2018 order , which incorporated by reference its October 2017 and January 2018 orders and the reasoning provided therein

. Trustees timely appealed.12 D ISCUSSION

A. Trustees’ Arguments and Standard of Review We can discern two primary arguments from T rustees’
b riefing on appeal. First, T rustees contend the trial court
erred in concluding that the statute of limitations for “ action [ s ]

contest [ ing ] [ a ] trust ” was inapplicable to Beneficiaries’ claims. (§ 16061 .8.) According to Trustees, because B eneficiaries seek distribution of Trusts B and C in a manner inconsistent with Mary’s c ontested a mendment , Beneficiaries are “contest [ing] ”

a trust document (the c ontested a mendment), regardless of
whether the c onteste d a mendment actually amend ed the terms governing distribution of Trusts B and C or not

. Second, Trustees argue that, even if the c ontested

a mendment did not amend the terms of the t rust d ocument regarding Trusts B and C, Trustees we re not required to distribute the assets in these trusts upon Mary’s death, and

may instead continue to manage them as part of a continuing discretionary spendthrift trust . They argue the tr ial court
erred in rejecting this interpretation of the t rust d ocument a nd permitting Beneficiaries to proceed with their 2010 p etition

. These arguments challenge the trial court’s interpretation
of the Probate Code and the t rust d ocument . We review
both types of questions de novo. 7 ( Brown v. Labow (2007)

7 As a general rule, orders “[c]ompelling the trustee
to submit an account or report acts as trustee” are not appealable . (§ 1304, subd. (a)(1).) There is an exception
to this rule, however, where, as here, the order re quiring a
trustee to account “expressly or implicitly decides other issues that could be the subject of an appealable probate order,” such13

157 Cal.App.4th 795, 812 [“ [t] he interpretation of a trust instrument, like any written document, is a question of law”]; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [meaning and construction of statutes reviewed
de novo] .)
Based on our independent review of the applicable law
and the t rust d ocument, we conclude that none of Trustees’ arguments ha s merit, and find no error in the trial court’s order.

B. The Trial Court Correctly Interpreted the Trust Document and Correctly Rejected Trustees’ Statu t e of Limitations Argument

1

. The t rial c ourt c orrectly c oncluded t hat
t he c ontested a mendment h ad n o e ffect

on Trusts B and C
A threshold issue in the court’s decision below is whether

, after Rodney

, Sr.’s death, Mary had authority to amend the terms
of the t rust d ocument regarding Trusts B and C

, and whether, as a result, the c ontested a mendment govern s the distribution of the
assets in the se trusts

. Although it is not entirely clear from their briefing,
Trustees do not appear to be challengin g the trial court’s ruling in this regard. Instead

, Trustees seem to want to ignore the issue by arguing that

, “whether Mary did or did not have the right to

as the interpretation of a trust. ( Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 522.) The remainder of the tria l court’s decision addressing appellants’ petition for instructions likewise “[d]etermine[s] questions of construction of a trust instrument” and is also appealable. (See §§ 17200, subd. (b)(1), 1304, subd. (a).)14

ame nd the entire T rust is irrelevant. The fact remain s that Mary
did amend the T rust. ”
I t is axiomatic , however, that an amendment Mary had

no legal authority to ex ecute can have no legal effect. We agree with the trial court that, following Rodney

, Sr.’s d eath, Mary lacked the authority to alter the terms of the t rust d ocument governing Trusts B and C. The plain language of the t rust d ocum ent provides Trusts B and C became “ irrevocable ” at that point

, meaning Mary “w as not at liberty to change that planned distribution after [Rodney

, Sr.’s] death. ” ( Aguilar v. Aguilar (2008) 168 Cal.App.4th 35, 40; see Heaps v. Heaps (2004)
124 Cal.App.4th 286, 291

– 292 [attempts to transfer assets
from irrevocable trust to different trusts constituted conversion];

see also § 15403, subd. (a ) [requiring consent of beneficiaries to amend terms of irrevocable trust] .)
That Trusts B and C became irrevocable and were not subject to amendment following Rodney

, Sr.’s death is also
consistent with the “Donkins’ clear intent to establish an estate plan that minimizes estate taxes

. ” 8 ( Donkin I, supra , 58 Cal.4th at p. 418 , f

n. 3

. ) “ ‘To avoid federal estate tax inclusion in the surviving spouse ’ s estate, the bypas s trust [here, Trust B

, ] must be irrevocable and unamendable on and after the first spouse ’ s death.’ ” ( Id

. at pp. 416

– 417, quoting 2 Drafting Cal. Revocable Trusts (Cont.Ed.Bar 4th ed. 2003), Revocation and Amendment, § 20.6, p. 20

– 14 (rev. 9/13).) Thus

, Mary’s inability to amend

8 In other contexts, the trust document al so clarifies this desire to reap the benefits of the federal marital deduction through the creation of Trusts B and C is paramount and should trump other provisions.15

terms governing Trust B (and, by extension, Trust C) after Rodney

, Sr.’s death is necessary in order to secure the benefit of
the federal marital deduction

. ( See Donkin I, supra, 58 Cal.4th at pp. 416

– 417; McIndoe v. Olivos (2005) 132 Cal.App.4th 483,
489 [surviving spouse could not amend trust terms regarding exempt trust because this would give her “power over the assets in the exempt trust, a result the trustors clearly did not intend, as evidenced by the ir use of a marital deduction and exempt

trust ” ] .) Thus, the trial court correctly concluded that Trusts B
and C should be distributed according to the original terms of
the t rust d ocument, not the terms of the c ontested a mendment.
This key conclusion gu ides our analysis of Trustees’ arguments,
which we discuss below.

2

. The t rial c ourt c orrectly d etermined the Beneficiaries ’ c laims in the 2010 p etition

a re n ot a “

c ontest” and t hus a re n ot
t ime

- b arred

S ection 16061.8 imposes time limitations on when an individual “ma y bring an action to contest [a] trust.” (§ 16061.8.) Trustees argue that, because the Beneficiaries filed their 2010

p etitio n after the deadline imposed by section 16061.8 , the petition is time

- barred. We disagree. As discussed above, the t rust d ocument, not the c ontested

a mendment, governs Trusts B and C. T he 2010 p etition requesting distribution of Trusts B and C in accordance with
the terms of the t rust d ocument, rather than the c ontested

a mendment, is thus not an action contesting a trust, but

an action requesting timely execution of a trust ’s provisions

. T o the extent the 2010 p etition seeks to enforce a particular16

interpretation of these provisions

, “[ s]uch calls for interpretation [also] do not violate no contest clauses.” (See Donkin I , supra , 58 Cal.4th at p p . 433

– 434 [“beneficiaries’ claims, although sometimes couched in terms suggesting they are arguing
the validity of the [ c ontested a mendment], at bottom seek an interpretation of the F amily T rust instrument, rather than to void any portion of it or to set aside its distributive plan”] (italics omitted) .) Moreover, “ ‘[w]hether there has been a “contest” within
the meaning of a particular no

- contest clause depends upon
the c ircumstances of the particular case and the language used.’ ” ( Burch v. George (1994) 7 Cal.4 th 246, 254

– 255 ( Burch ) ; see § 21310, subd. (a) [defining “contest” as “a pleading filed with
the court by a beneficiary that would result in a penalty under

a no contest clause, if the no contest clause is enforced”].) T he California Supreme Court held i n Donkin I that Beneficiaries’
2010 p etition did not trigger the no contest clauses in either
the t rust d ocument or c ontested a mendment

. 9 Thus, the 2010

p etition “is not a contest of the [ t rust d ocument] as defined by
the trust’s language, and

. . . section 16061.8 does not apply.” 10 ( Yeh v. Tai (2017) 18 Cal.App.5th 953, 967.)

9 While some of Trustees’ arguments are directed at Beneficiaries 2017 trial brief, their arguments involve the

same claims on which the 2010 petition is based, and likewise constitute requests for execution and/or interpretation.

10 Trustees briefly argue that, through the contested amendment and its no contest clause, Mary “require[d] a benefi ciary to accept the Trust’s terms, as amended ” (boldface omitted and italics added), such that, when Beneficiaries called into question Mary’s authority to amend all aspects of the trust17 Trustees ’ only argument as to why the Supreme Court’s
decision in Donkin I is not dispositive of Trustees’ statute
of limitation s argument is that the Supreme Court “believed
that

. . . B eneficiaries were seeking an in terpretation of the
instrument ’ s terms through an understanding of what they view as Mary’s probable intent, ” and, therefore, the case stands only for the proposition that a re quest to ascertain Mary’s intent i s not a “contest.” We disagree. Trustees identify no specific language
in Donkin I to support their characterization of the Supreme Court’s decision in this way . Nor can we find any language in
the Court’s opinion that support s this characterization

. To the contrary, although Trustees ’ arguments to the Supreme Court focused on Mary’s intent, the Supreme Court’s reasoning looked both at Mary’s intent and her authority with respect to Trusts B and C following Rodney

, Sr.’s death. (See, e.g., Donkin I, supra

, 58 Cal.4th at pp. 435

– 436 .) 11

through the contested amendment, they contested the trust. This argu ment merely assumes the validity of the contested amendment as applied to Trusts B and C. If the contested amendment never became part of the trust document’s
terms governing Trusts B and C, challenging the contested amendment in this respect does not con test the trust document.

11 “The successor trustees’ argument, however, is premised on a description of the nature of the beneficiaries’ claim that is not accurate. As we understand the beneficiaries’ argument, the beneficiaries are not challenging the actions of Mary in executing the Trust’s Second Amendment per se , nor do they
argue that the Trust’s Second Amendment is void. Rather, the beneficiaries argue in favor of an interpretation of the Family Trust instrument, including the Trus t’s Second Amendment, different from the one urged by the successor trustees. The18 T h e trial court correctly concluded that the Beneficiaries ’ claims, and the 2010 p etition specifically, were not subject to
section 1 6061.8 ’s time limitations on “ action [ s ]

. . . cont est [ing] [ a ]

trust

. ” (§ 16061.8.)

3

. The t rust d ocument r equired d istribution of Trusts B and C a s s oon a s is p racticable

a fter Mary ’s d eath Trustees argue that, even if the c ontested a mendment
did not alter the terms applicable to Trusts B and C, the t rust d ocument creates a “continuing conditional discretionary spendthrift T rust that did not terminate and did not require immediate distribution upon Mary’s death.” (Boldface omitted.)
Trustees point to various provisions throughout the t rust d ocument that create trustee discretion to manage certain types of distributions at certain times

. Consistent with basic canons of trust interpretation, we do not read these provisions

beneficiaries’ contentions seek to establish the meaning of the instrument’s terms through an understanding of what they view as Mary’s probable intent. They argue that bec ause Mary possessed only limited authority after the death of Rodney to alter the provisions of the Family Trust and could not validly amend the trust with respect to his Decedent’s Marital Share, the new paragraph substituted by the Trust’s Second Amendme nt regarding the allocation of trust assets after Mary’s death must have been intended by her to govern, and should be interpreted
to govern , only the assets of Survivor’s Trust A. Consistent with this interpretation, the beneficiaries argue that the trus t’s distribution paragraph, left unaltered by the Trust’s Second Amendment, required the assets of the Decedent’s Trusts B and C to be distributed ‘outright as soon as is practicable’ after the death of Mary.” ( Donkin I, supra

, 58 Cal.4th at pp. 435

– 436.)19

as permittin g Tru stees discretion to manage Trusts B and C indefinitely. In interpreting a trust, courts seek to ascertain the

trustor ’ s intent, which requires that “ we look first to the

terms of [ the ] trust. ” ( Burch, supra

, 7 Cal.4th at pp. 256, 258 .) “The words of an instrument are to be given their ordinary
and grammatical meaning unless the intention to use them
in another sense is clear and their intended meaning can
be ascertained.” (§ 21122.) Furthermore, “[t]he words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative.” (§ 21120.) Here, the only way to give effect to all terms of the t rust d ocument regarding Trusts B and C is to interpret the provisions
Trustees cite as granting Trustees discretion for a brief period following Mary’s death, during which the Trustees may need

to hand le various tasks in preparation for final distribution

. Namely, in the section “ A llocation and D istribution of
T rust A ssets” ( all capitalization omitted), the t rust d ocument first requires that “[u]pon the death of the S urviving S pouse, the T rustee shall h old, administer and distribute the T rust in the following manner.” The sections that immediately follow set forth various tasks that may be necessary prior

to the distribution of the trust assets , such as disposing of Rodney

, Sr. ’s

, and Mary’s personal property as required in a separate memorandum , should one exist

, deducting the amount of any loans or gifts from a beneficiary’s share , and establishing,
if necessary, a special needs trust for any incompetent
beneficiaries

. Among these sections are also the provisions on

w hich Trustees rely, which create t rustee discretion to distribute20

funds for the support and education of the beneficiaries, or otherwise as “necessary or advisable” for their benefit, “prior

to the division of the trust into sha res as hereinbefore provided, or prior to distribution if divided.” The t rust d ocument then
identifies when such division and distribution of assets should

occur: “ W hen the above conditions are satisfied, the debts and obligations of the T rust E state have been paid, and any special bequests have been distributed, the Trustee shall allocate
and divide this T rust E state as then constituted” and “[a]fter allocating and dividing the residual of the T rust E state into shares, the T

rustee shall distribu te the shares allocated to P rimary B eneficiaries outright as soon as is practicable .” (Italics added.) The provisions addressing distribution thus speak in mandatory terms and plai nly do not contemplate Trustees retaining control over Trusts B and C after Mary ’s passing
for any longer than is necessary to address any applicable
administrative tasks the t rus t d ocuments designate as conditions precedent to division and distribution. This reading of the t rust d ocum ent uses the ordinary meaning to the phrase “as soon

as is practicable,” while also giving effect to all provisions discussing the Trustees ’ discretion following Mary’s death.
The interpretation Trustees urge, by contrast, would render meaningless the req uirement that distribution take place “as

soon as is practicable” and be “outright ” to the Beneficiaries. Although “extrinsic evidence is admissible to ascertain the meaning of the trust and the intent of the trustor” ( Safai v. Safai (2008) 164 Cal.App.4th 233, 244, citing Burch, supra

, 7 Cal.4th

at pp. 256, 258)

, the only extrinsic evidence relating to intent of either Trustor in drafting the t rust d ocument is an estate21

planning book that s hows , if anything, that a primary g oal of th e t rust d ocument was minimizing estate tax es through

use of the marital deduction. That does not speak to Trustees’
characterization of Trusts B and C as continuous conditional spendthrift trusts. Further, e xtrinsic evidence regarding Mary’s
intent in ex ecuting the c ontested a mendment, if it speaks at
all to intent of the original t rust d ocument, does so in a manner
that is also inconsistent with Trustees ’ arguments. This is
because , in the c ontested a mendment , Mary attempted to change the terms of the t rust d ocument so that the Trustee s would retain
discretion to administer all estate assets for an indefinite period
follow ing Mary’s death . H ad she understood the original terms of the t rust d ocument as already accomplishing this, such

a mendment would not have been necessary. In sum, t he trial court correctly interpreted the terms of
the t rust d ocuments as requiring distribution of Trusts B and C to Beneficiaries “as soon as is practicable” after Mary’s death

,

as the Beneficiaries argued below

. The t rust d ocument does not permit the Trustees to continue to administer Trusts B and C

as spendthrif

t trusts for any longer after Mary’s death than is necessary to address the special scenarios discussed above (none of which Trustees argue appl ies ), calculate the Beneficiaries’
various shares

, and prepare the trust assets for distribution to the Benefici aries

. 12

12 Appellants’ petition raises other arguments regarding issues not decided in the order on appeal and already finally determined by the Supreme Court’s 2013 decision (for example, whether beneficiaries should be disinherited under the no contest clause, or whether the old version of the Probate Code section22 C. Unauthorized Practice of Law Trustees represent themselves. Beneficiaries argue that such self

- representation constitutes an unauthorized practice of
law. 13 We disagree.
In Ziegler v. Nickel (1998) 64 Cal.App.4th 545 ( Zie gler ),
Division Three of this c ourt conclu ded that “[a] non

- attorney trustee who represents [a] trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law. [Citation.]” ( Id. at p. 549 .) Ziegler did not involve probate proceedings, but rather a lawsuit between a mobilehome park a nd a trust

— appearing, as a trust necessarily does , through its trustee. (See Powers v. Ashton (1975) 45 Cal.App.3d 783, 787 [a trust can only be a party to litigation through a trustee].) In concluding the trustee could

not represent himself in prosecuting the trust’s lawsuit against
the mo bilehome park

, Z i e gler explained that “ ‘ a trustee ’ s duties in connecti on with his or her office do not include the right to present argument [ while representing himself ] in courts of the state, because in this capacity such trustee would be

governing no contest clauses should apply). We need not and do not address these arguments.

13 In the section of their brief on “unauthorized practice of law” (capitalization omitted), Beneficiaries also argue that, because Trustees’ petition seeks an interpretation of the trust that would benefit Rodney, Jr., and Vicki personally, there exists a conflict of interest and Trustees are violating their fiduciary duties to the trust. The trial court’s or der expressly states, however, that it “is not now ruling on whether Trustees breached their fiduciary duties at different times.” This issue is thus not properly before us on appeal.23

representing interests of others and would therefore be engaged
in the unauthoriz ed p ractice of law. [Citation s .]’ [Citation s. ] [¶] Stated otherwise, ‘ [a] trustee must always act solely in the benefi ciaries ’ interest. [Citations.]’ [Citations.] The actions of
the trustee affect the trust estate and therefore affect the interest
of the beneficiaries. A non

- attorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law. ” ( Z iegler , supra , 64 Cal.App.4th at pp. 548

– 549 , italics
omitted .) Ziegler ’s rationale is that the trustee was effectively speaking for the interests of the trust beneficiarie s in the lawsuit against the mobilehome park and, as a nonlawyer

, improperly representing t hose beneficiaries . ( Ziegler, supra , 64 Cal.App.4th at pp. 548

– 549; c f. Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519

– 1520 [ a self

- represented trustee does not engage in the unauthorized practice of la w under Z i e gler when he is also
the sole beneficiary , and thus is not representing the interests of
another ]

. ) This reasoning is closely connected with the specific facts
in Z i e gler

. Namely, i n non

- probate litigation between a trustee and a third party (as in Z i e gler) , the trustee is acting as a fiduciary for the benefit of the beneficiaries

. 14 But the same

14 Other cases involving conservatorship, including one

on which Benefic iaries rely for their unauthorized practice argument, have made a similar distinction between probate litigation and litigation outside the probate context between

a trust or estate and a third party. ( Hansen v. Hansen (2003) 114 Cal.App.4th 618, 619 [“a conservator, executor, or personal representative of a decedent’s estate who is unlicensed to practice24

cannot be said when , as here, a trustee is seeking instructions regarding how to interpret the trust document or execute his

or her du ties thereunder

. A trustee seeks such instructions in
order to effectuate the intent of the trustor, not to represent the
interests of the beneficiaries. (See Union Bank & Trust Co. v. McColgan (1948) 84 Cal.App.2d 208, 213 ( Union Bank ) [trustee’s
broade r duty is to “to carry out the terms of the trust according

to the expressed intent of the trustor”].) Indeed, as is the case here, the beneficiaries may disagree with the trustee regarding
the trust interpretation the court should adopt , and /or what
the trustee’s duties are

. Under these circumstances, the trustee
is adverse to the b eneficiaries and th us is not representing
the b eneficiaries’ interests. The same is true when a trustee disagrees with the need for a n accounting or surcharge based

on the trustee’s and beneficiaries’ varying understandings of the
trust document. The decision of Division Six in Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417 ( Finkbeiner ) is instructive here.
Finkbeiner concluded that, in probate litigation between a

trustee and beneficiaries, the trustee w as not engag ing in the unauthorized practice of law by representing herself when filing

a petition to modify and terminate the trust

. ( Id. at p. 1421.)
The court distinguished Z i e gler on the basis that th e trustee in

law cannot represent himself when acting on behalf of the estate in matters outside the probate proceedings”]; City of Downey v. Johnson (1968) 263 Cal.A pp.2d 775, 778 [nonlawyer conservator and executor could not represent estate in the defense of

a condemnation action that “is not an integral part of the proceedings within the jurisdiction of the probate court”].)25

Finkbeiner “[was] not suing a third party. She filed the petition as part of her fiduciary responsibility to the court. [The t r ustee] correctly note[d] that trustees have various statutory duties.
She was appointed by the court for the purp ose of selling the property. She had a duty to account for trust assets, a right to seek her fees and a responsibility to notify the court if she felt maintaining an ineffective trust was wasteful to the trust estate. By filing her petition to modify and terminate the trust, she was simply fulfilling her duties as trustee. (See Prob. Code

, § 17200 et seq.) She was not engaged in the unauthorized practice of law.” ( Finkbeiner , supra , 136 Cal.App.4th at p. 1421.)
Like the court in Finkbeiner , we conclude that the reasoning in Z i e

gle r does not apply to the matter before us

. A s in Finkbeiner

, the instant matter is between trustee s and trust beneficiaries in the context of probate proceedings, not between trustees and a third party in non

- proba te litigation

. Of course, unlike in Finkbeiner

, neither sta tute nor fiduciary duty required Trustees to file the petition for instructions at issue or to oppose Beneficiaries ’ petition for surcharge and to

account . Nevertheless, like a trustee filing a p etition p ursuant
to a statutory mandate, Trustees here are seeking judicial clarification on how to interpret a trust documen t and not act ing on behalf of the beneficiaries

. Rather, Trustees and Beneficiaries

are litigating a dispute about what precisely the trust requires. Therefore, a s in Finkbeiner

, Trustees may represent themselves
in this dispute without engaging in the unauthorized practice of
law

. We note , however, that Trustees have wasted both the court’s and Benefi ciaries’ resources and time trying to relitigate issues already decided by the Califor nia Supreme Court in this26

case. We are c ognizant of the possibility that, had Trustees been represented by an attorney, this may not have occurred. But
this is a potential hazard of any self

- representation , and cannot alone justify adopting a broader rule that all trustees seeking clarification regarding what a trust requires of them must take on the expense of hiring counsel. 15 Whether Trustees must be

repres ented by counsel in future proceedings will depend on the nature of the Trustees’ efforts in those proceedings, considered in light of our decision and the case law discussed above.

15 Moreover, absent the need to protect t he interests of the beneficiaries as in Ziegler , requiring counsel for a trustee filing a petition for instructions in litigation with the trust beneficiaries could place an unjustified burden on small trust
estates.27 DISPOSITION
The trial court’s order is affirmed

. Respondents are awarded their costs on appeal. CERTIFIED FOR PARTIAL PUBLICATION

.

ROTHSCHILD

, P. J.

We concur:

BENDIX , J.

WHITE , J. *

* Judge of the Los Angeles Superior C ourt, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.