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.,                  B293127

       Plaintiffs and Respondents.        (Los Angeles County
                                          Super. Ct. No. BP109463)
       v.

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

       Defendants and Appellants,


      APPEAL from an order of the Superior Court of
Los Angeles County, David J. Cowan, Judge. Affirmed.
      Rodney E. Donkin, Jr., in pro. per., for 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 for 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.
       Appellants Rodney E. Donkin, Jr., and Vicki Rose Donkin
(Trustees), as successor trustees of a family trust established
by Rodney Donkin, Sr., and Mary Donkin (Trustors), appeal
from an order in which the trial court rejected Trustees’ proposed
interpretation of the trust, reflected in their petition for
instructions. Specifically, the court concluded the trust was not a
continuing discretionary spendthrift trust and instead obligated
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 died. The trial court further
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 Code1 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 that, 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 statutory
references are to the Probate Code.




                                 2
          FACTUAL AND PROCEDURAL SUMMARY
     A.      The Donkin Family Trust
       In August 1988, 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 trust document).3 According to the trust
document, the primary beneficiaries of the trust 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. Donkin
were named as ‘[f]irst’ co-successor trustees, while Lisa and
Annemarie . . . were relegated to the position of ‘[s]econd’
co-successor trustees.”4 (Donkin II, supra, B266036, at p. 4.)
       The trust document provides that, upon the death of
the first Trustor (the predeceasing spouse or decedent), “the
Trustee shall divide the Trust Estate into two . . . separate
shares”: (1) the “Survivor’s Trust” (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 2017 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.




                                 3
the surviving spouse’s separate property, and (2) the “Decedent’s
Marital Share,” consisting of the predeceasing spouse’s interest
in the community property and the predeceasing spouse’s
separate property. (Underlining omitted.)
      Upon the death of the surviving spouse, the trust document
requires the trustee to further divide the decedent’s marital
share into decedent’s Trust B and decedent’s Trust C. The
trustee 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 marital share 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 spouse 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 exceed 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 estate of the surviving spouse upon his
or her death. [Citations.] Thus, ‘the undistributed assets of the




                                 4
             1.    Revocability
      “[T]he surviving spouse’s Trust A remains revocable” after
the predeceasing spouse dies. By contrast, “[u]pon the death of
[the predeceasing] spouse . . . [d]ecedent’s Trusts B [and] C . . .
become irrevocable.” (Underlining omitted.) Other provisions
in the trust describe Trusts B and C as becoming irrevocable
“[u]pon creation of such Trust shares [B and C].” Given that the
trust document obligates the trustee to create shares B and C
“[u]pon the death of [the predeceasing] spouse,” however, these
provisions effectively render Trusts B and C irrevocable upon the
death of the predeceasing spouse. (Underlining omitted.)
      “Upon the death of both [Trustors], the entire Trust
becomes irrevocable.” (Underlining omitted.)

            2.     Allocation and distribution upon
                   the death of the surviving spouse
       The trust further provides that, “[u]pon the death of
the Surviving Spouse, the Trustee shall hold, administer and
distribute the Trust in the following manner.” The provisions
that immediately follow do several things. First, they allow
for the distribution of Trustors’ personal property per a separate
memorandum Trustors may choose to execute. Second, they
give the trustee 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 education of any primary
beneficiary” and to make “Extraordinary Distribution[s]”


decedent’s estate . . . “bypass” the survivor’s estate.’ ” (Donkin I,
supra, 58 Cal.4th at p. 416.)




                                  5
for “worthwhile personal, professional or business goals” of a
beneficiary. (Underlining omitted.) Third, they instruct the
trustee 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 instruct
the trustee to reduce any beneficiary’s share by the amount of
any loan or gift made to the beneficiary by the trust.
      At the conclusion of these provisions, the trust document
identifies the primary beneficiaries and requires that “[w]hen
the above conditions are satisfied, the debts and obligations of
the Trust Estate have been paid, and any special bequests have
been distributed, the Trustee shall allocate and divide [the] Trust
Estate as then constituted into separate shares so as to provide
one share for each of the designated Primary Beneficiaries living
at the death of the Surviving Settlor.” (Italics added.) Finally,
“the Trustee shall distribute the shares allocated to Primary
Beneficiaries 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 an
amendment to the trust document (the contested amendment).
The contested amendment “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 for the beneficiaries, the new paragraph grants the
successor trustees—which would initially be Rodney Jr. and
Vicki—‘complete discretion’ after the death of Mary to retain
the assets of the Family Trust intact and to continue to manage
the property for the equal benefit of the primary beneficiaries.




                                 6
Among other things, the new paragraph granted the successor
trustees ‘sole discretion’ over distribution of income and principal
from the Trust to the beneficiaries.” (Donkin II, supra, B266036,
at p. 5.) The language in the contested amendment 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 Provisions
       The trust document contains a no contest clause. The
contested amendment also includes a no contest clause, phrased
slightly more broadly than that in the trust document. For
several years beginning in 2008, Trustees and Beneficiaries
litigated issues involving the no contest clauses and the effect of
the contested amendment.

            1.    Beneficiaries’ 2010 petition for surcharge
                  and to account
       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 Trustees’ alleged failure to distribute the assets in Trusts B
and C upon Mary’s death (the 2010 petition). (See generally
Donkin II, supra, B266036, at pp. 6-8.) Beneficiaries based the
2010 petition on their reading of the trust document provisions
governing the distribution of decedent’s Trusts B and C, and their
view that Mary lacked authority to alter these terms through the
contested amendment, because Mary executed it after Trusts B
and C had become irrevocable. (See Donkin I, supra, 58 Cal.4th
at pp. 435–436.)




                                 7
              2.   California Supreme Court decision
                   (Donkin I)
       Changes in the Probate Code sections regarding no
contest clauses6 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 [trust document] are unenforceable
against” the 2010 petition “challenging the conduct of the
successor trustees under the asserted authority of the [contested]
[a]mendment” (id. at pp. 415–416), because the 2010 petition
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 petition sought an interpretation regarding
the effect of the contested amendment on the trust document, and
requested distribution in accordance with Beneficiaries’ preferred
interpretation, neither of which violates a no-contest clause.
(Donkin I, supra, at pp. 432–433 & 435-436.)


      6 “On  January 1, 2010, changes to the Probate Code
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.” (Donkin II,
supra, B266036, at p. 6.)




                                 8
            3.    Trustees’ 2014 petition for instructions
       In further trial court proceedings on remand from the
Supreme Court, Trustees filed a petition for instructions with
the trial court (the 2014 petition). The 2014 petition raised
two issues, only one of which is relevant to the current appeal.
Namely, it sought instructions regarding “the proper
interpretation of the allocation paragraph in the Trust as
amended by the [contested] [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 beneficiaries choose to pursue
their claims [in the 2010 petition].” (Donkin I, supra, 58 Cal.4th
at p. 438.) The 2014 petition effectively asked the trial court to
issue such a ruling.

            4.    The 2017 decision of this court (Donkin II)
       The trial court’s initial decisions regarding the 2014
petition and 2010 petition resulted in another appeal to this
court. We reversed in part, because the trial court had refused to
hear the 2014 petition, 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 hear and decide the 2014 petition.
(Id. at p. 30.) It is the trial court’s decision following such
remand that is currently before us for review.




                                 9
      D.    Trial Court’s June 2018 Order
       In minute orders dated October 27, 2017 and January 17,
2018, the court provided a detailed and thoughtful discussion
of the September 2014 petition and, relatedly, certain issues
involved in the 2010 petition.
       Specifically, the trial court concluded that, following the
death of Rodney, Sr., in 2002, the decedent’s Trust B became
irrevocable, meaning that Mary lacked authority after that
point to “alter the terms of the Trust as they pertain to Trust B.”
As such, Trusts B and C were to be distributed on the terms set
forth in the trust document, not the contested amendment.
       The court further concluded that the trust document
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’
arguments that trust document provisions granting the
Trustees discretion with respect to “Support and Education”
and “Extraordinary Distribution” rendered the entire trust a
“continuing conditional discretionary, spendthrift trust that
did not require the assets to be distributed immediately upon
Mary’s death.” (Underlining omitted.) “That Trustees have
certain discretionary powers and have general powers do not
in and of themselves give them discretion to disregard specific
provisions of the Trust. Discretion does not include just doing
whatever Trustees wanted.”
       The court based its analysis on its interpretation of
the trust’s allocation, distribution and revocability provisions,
considering them in the context of the larger trust document.
The court rejected Trustees’ argument that it should consider




                                10
extrinsic evidence of Mary’s intent in executing the contested
amendment, explaining that, given the inability of the contested
amendment to govern Trusts B and C, the only intent potentially
relevant to interpreting provisions governing Trusts B and C
was the intent of Mary and/or Rodney, Sr., in drafting the trust
document.
       Having determined that the trust obligated the Trustees
to allocate and distribute the assets in Trusts B and C to
Beneficiaries upon Mary’s death, the court continued the 2010
petition for surcharge “for further hearing to determine whether
Trustees are liable or not, and if so, in what amount, for the
alleged surcharge in view of the [court’s] decision . . . and in
connection with accountings for the relevant time periods.”
Such continuance was necessary, the court explained, because
it needed to determine what “amounts or assets . . . should have
been distributed 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 petition 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 “contest.” (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.




                               11
                          DISCUSSION

      A.     Trustees’ Arguments and Standard of Review
       We can discern two primary arguments from Trustees’
briefing on appeal. First, Trustees 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 Beneficiaries seek
distribution of Trusts B and C in a manner inconsistent with
Mary’s contested amendment, Beneficiaries are “contest[ing]”
a trust document (the contested amendment), regardless of
whether the contested amendment actually amended the terms
governing distribution of Trusts B and C or not.
       Second, Trustees argue that, even if the contested
amendment did not amend the terms of the trust document
regarding Trusts B and C, Trustees were 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 trial court
erred in rejecting this interpretation of the trust document and
permitting Beneficiaries to proceed with their 2010 petition.
       These arguments challenge the trial court’s interpretation
of the Probate Code and the trust document. 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 requiring a
trustee to account “expressly or implicitly decides other issues
that could be the subject of an appealable probate order,” such




                                12
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 trust document, we conclude that none of Trustees’
arguments has merit, and find no error in the trial court’s order.

      B.    The Trial Court Correctly Interpreted the Trust
            Document and Correctly Rejected Trustees’
            Statute of Limitations Argument
            1.    The trial court correctly concluded that
                  the contested amendment had no effect
                  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 trust document regarding Trusts B and C, and whether, as
a result, the contested amendment governs the distribution of the
assets in these trusts.
       Although it is not entirely clear from their briefing,
Trustees do not appear to be challenging 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 trial 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).)




                                13
amend the entire Trust is irrelevant. The fact remains that Mary
did amend the Trust.”
       It is axiomatic, however, that an amendment Mary had
no legal authority to execute can have no legal effect. We agree
with the trial court that, following Rodney, Sr.’s death, Mary
lacked the authority to alter the terms of the trust document
governing Trusts B and C. The plain language of the trust
document provides Trusts B and C became “irrevocable” at that
point, meaning Mary “was 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, fn. 3.) “ ‘To avoid federal estate tax inclusion in the
surviving spouse’s estate, the bypass 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 also 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.




                                14
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 their 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 trust document, not the terms of the contested amendment.
This key conclusion guides our analysis of Trustees’ arguments,
which we discuss below.

            2.    The trial court correctly determined the
                  Beneficiaries’ claims in the 2010 petition
                  are not a “contest” and thus are not
                  time-barred
       Section 16061.8 imposes time limitations on when an
individual “may bring an action to contest [a] trust.” (§ 16061.8.)
Trustees argue that, because the Beneficiaries filed their 2010
petition after the deadline imposed by section 16061.8, the
petition is time-barred. We disagree.
       As discussed above, the trust document, not the contested
amendment, governs Trusts B and C. The 2010 petition
requesting distribution of Trusts B and C in accordance with
the terms of the trust document, rather than the contested
amendment, is thus not an action contesting a trust, but
an action requesting timely execution of a trust’s provisions.
To the extent the 2010 petition seeks to enforce a particular




                                15
interpretation of these provisions, “[s]uch calls for interpretation
[also] do not violate no contest clauses.” (See Donkin I, supra,
58 Cal.4th at pp. 433–434 [“beneficiaries’ claims, although
sometimes couched in terms suggesting they are arguing
the validity of the [contested amendment], at bottom seek an
interpretation of the Family Trust 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 circumstances of the particular case and the language used.’ ”
(Burch v. George (1994) 7 Cal.4th 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”].) The
California Supreme Court held in Donkin I that Beneficiaries’
2010 petition did not trigger the no contest clauses in either
the trust document or contested amendment.9 Thus, the 2010
petition “is not a contest of the [trust document] 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
beneficiary 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 trust




                                  16
       Trustees’ only argument as to why the Supreme Court’s
decision in Donkin I is not dispositive of Trustees’ statute
of limitations argument is that the Supreme Court “believed
that . . . Beneficiaries were seeking an interpretation 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 request to ascertain Mary’s intent is 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 supports 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 argument 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 contest 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 Trust’s Second Amendment,
different from the one urged by the successor trustees. The




                                 17
       The trial court correctly concluded that the Beneficiaries’
claims, and the 2010 petition specifically, were not subject to
section 16061.8’s time limitations on “action[s] . . . contest[ing] [a]
trust.” (§ 16061.8.)

            3.     The trust document required distribution
                   of Trusts B and C as soon as is practicable
                   after Mary’s death
      Trustees argue that, even if the contested amendment
did not alter the terms applicable to Trusts B and C, the trust
document creates a “continuing conditional discretionary
spendthrift Trust that did not terminate and did not require
immediate distribution upon Mary’s death.” (Boldface omitted.)
Trustees point to various provisions throughout the trust
document 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 because 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 Amendment
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 trust’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.)




                                  18
as permitting Trustees 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 trust
document 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 handle various tasks in preparation for final distribution.
       Namely, in the section “Allocation and Distribution of
Trust Assets” (all capitalization omitted), the trust document
first requires that “[u]pon the death of the Surviving Spouse,
the Trustee shall hold, administer and distribute the Trust
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
which Trustees rely, which create trustee discretion to distribute




                                19
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 shares as hereinbefore provided,
or prior to distribution if divided.” The trust document then
identifies when such division and distribution of assets should
occur: “When the above conditions are satisfied, the debts and
obligations of the Trust Estate have been paid, and any special
bequests have been distributed, the Trustee shall allocate
and divide this Trust Estate as then constituted” and “[a]fter
allocating and dividing the residual of the Trust Estate into
shares, the Trustee shall distribute the shares allocated to
Primary Beneficiaries outright as soon as is practicable.” (Italics
added.)
       The provisions addressing distribution thus speak in
mandatory terms and plainly 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 trust documents designate as conditions
precedent to division and distribution. This reading of the trust
document 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 requirement 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 trust document is an estate




                                20
planning book that shows, if anything, that a primary goal
of the trust document was minimizing estate taxes through
use of the marital deduction. That does not speak to Trustees’
characterization of Trusts B and C as continuous conditional
spendthrift trusts. Further, extrinsic evidence regarding Mary’s
intent in executing the contested amendment, if it speaks at
all to intent of the original trust document, does so in a manner
that is also inconsistent with Trustees’ arguments. This is
because, in the contested amendment, Mary attempted to change
the terms of the trust document so that the Trustees would retain
discretion to administer all estate assets for an indefinite period
following Mary’s death. Had she understood the original terms
of the trust document as already accomplishing this, such
amendment would not have been necessary.
       In sum, the trial court correctly interpreted the terms of
the trust documents 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 trust document does not
permit the Trustees to continue to administer Trusts B and C
as spendthrift trusts for any longer after Mary’s death than is
necessary to address the special scenarios discussed above (none
of which Trustees argue applies), calculate the Beneficiaries’
various shares, and prepare the trust assets for distribution to
the Beneficiaries.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 section




                                21
      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 (Ziegler),
Division Three of this court concluded 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 and 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 mobilehome park, Ziegler explained that “ ‘ a trustee’s
duties in connection 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 order 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.




                                22
representing interests of others and would therefore be engaged
in the unauthorized practice of law. [Citations.]’ [Citations.]
[¶] Stated otherwise, ‘[a] trustee must always act solely in the
beneficiaries’ 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.” (Ziegler, 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 beneficiaries in the lawsuit
against the mobilehome park and, as a nonlawyer, improperly
representing those beneficiaries. (Ziegler, supra, 64 Cal.App.4th
at pp. 548–549; cf. Aulisio v. Bancroft (2014) 230 Cal.App.4th
1516, 1519–1520 [a self-represented trustee does not engage in
the unauthorized practice of law under Ziegler 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 Ziegler. Namely, in non-probate litigation between a trustee
and a third party (as in Ziegler), 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 Beneficiaries 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 practice




                                 23
cannot be said when, as here, a trustee is seeking instructions
regarding how to interpret the trust document or execute his
or her duties 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
broader 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 beneficiaries and thus is not representing
the beneficiaries’ interests. The same is true when a trustee
disagrees with the need for an 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 was not engaging 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 Ziegler on the basis that the 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.App.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”].)




                                24
Finkbeiner “[was] not suing a third party. She filed the petition
as part of her fiduciary responsibility to the court. [The trustee]
correctly note[d] that trustees have various statutory duties.
She was appointed by the court for the purpose 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 Ziegler does not apply to the matter before us.
As in Finkbeiner, the instant matter is between trustees and
trust beneficiaries in the context of probate proceedings, not
between trustees and a third party in non-probate litigation.
Of course, unlike in Finkbeiner, neither statute 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 petition pursuant
to a statutory mandate, Trustees here are seeking judicial
clarification on how to interpret a trust document and not acting
on behalf of the beneficiaries. Rather, Trustees and Beneficiaries
are litigating a dispute about what precisely the trust requires.
Therefore, as 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 Beneficiaries’ resources and time trying to relitigate
issues already decided by the California Supreme Court in this




                                25
case. We are cognizant 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
represented 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 the 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.




                                 26
                         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 Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                27
