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Please see DMV warning about fraudulent texts: https://www.dmv.ca.gov/portal/news-and-media/dmv-warns-of-fraudulent-te…

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Conservatorship of Johanna Maria Wolter

Case Number

21PR00340

Case Type

Conservatorship

Hearing Date / Time

Mon, 10/30/2023 - 08:30

Nature of Proceedings

Petition to Sell Conservatee’s Personal Residence

Tentative Ruling

Probate Notes:

Appearances required.  The following must be filed:

 

Amendment to the petition.  The Petition does not include sufficient allegations to provide the necessary facts for the Court to rely upon in order to make a finding that the personal residence of the conservatee is no longer the least restrictive residence for the conservatee to live in. 

 

Probate Code section 2352.5 requires the conservator to demonstrate, before selling the residence, that the residence is not the least restrictive appropriate residence for the conservatee by clear and convincing evidence. (Prob. Code, §2352.5(a).  This requires the Court to perform an analysis of the conservatee's limitations or restrictions on residing in the personal residence for the foreseeable future.

 

Probate Code section 2541 lists the authorized purposes for any sale of estate property:  

 

(a) If the income of the estate is insufficient for the comfortable and suitable support, maintenance, and education of the ward or conservatee (including care, treatment, and support of the ward or conservatee if a patient in a state hospital under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services) or of those legally entitled to support, maintenance, or education from the ward or conservatee.

 

(b) If the sale is necessary to pay the debts referred to in Sections 2430 and 2431.

 

(c) If the sale is for the advantage, benefit, and best interest of (1) the ward or conservatee, (2) the estate, or (3) the ward or conservatee and those legally entitled to support, maintenance, or education from the ward or conservatee.

 

Even if the sale is for an authorized purpose, the conservator must show clear and convincing evidence of a compelling need to sell the conservatee's residence. (Prob. Code, § 2541.5).

                

IN THIS CASE, the petition does not provide adequate facts this Court can rely upon to make the necessary findings above, because the petition alleges no facts relating to the conseravtee’s ability return to her residence in the future, nor whether the sale is necessary to pay the expenses of the conservatee. 

There are also no allegations sufficient to meet the requirements of Probate Code section 2591.5. Specifically, the amount the home is worth, expected costs to sell, etc.

Since an amendment requires re-notice in the same manner as notice of the petition (CRC, Rule 7.51), it is impossible for petitioner to adequately meet the notice requirements before the hearing.  The hearing should be continued to a date sufficient to allow the petitioner to meet the re-notice requirements.

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