Estate of Michael Evangelista

Case Number

21PR00463

Case Type

Hearing Date / Time

Mon, 11/13/2023 - 08:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required.

The petition does not comply with the Probate Code requirements for necessary allegations in many ways.  It is recommended the Court order Petitioner to amend the petition using Local Form SC-6028 and 6029.  If the Court allows petitioner to correct the defects without amendment, the following defects must cured before the petition may proceed:

Notice to Franchise Tax Board.  Notice MUST have been given to the Franchise Tax Board not later than 90 days after the date letters are first issued. (Prob. Code, § 9202, subd. (c)(1).)  There is no proof service to the FTB was given.

Notice to Relevant State Entities.  Allegations in the petition must be sufficient to inform the Court that notice to required state entities was either not required, or given as required. The petition fails to do so to the following entities:

• Director of the California Victim Compensation and Government Claims Board - If an heir or beneficiary is or has previously been confined in CDCR facility, county or city jail, road camp, industrial farm, etc., notice must have been given to the Director of the California Victim Compensation and Government Claims Board not later than 90 days after letters issued (§ 9202, subd. (b))

• State Board of Equalization - If decedent paid any taxes pursuant to Sales and Use Tax Law (Rev. & Tax. Code § 6487.1), Bradley-Burns Uniform Local Sales and Use Tax Law (Rev. & Tax. Code § 6487.1), Transactions and Use Tax Law (Rev. & Tax. Code § 6487.1), Motor Vehicle Fuel License Tax Law (Rev. & Tax. Code § 7675.1), Use Fuel Tax Law (Rev. & Tax. Code § 8782.1), Administration of Franchise and Income Tax Law (Rev. & Tax. Code § 19517), Cigarette Tax Law (Rev. & Tax. Code § 30207.1), and Alcoholic Beverage Tax Law (Rev. & Tax. Code § 32272.1), notice must have been given to the State Board of Equalization.

• Employment Development Department - If decedent owed unemployment insurance, notice must have been given to the Employment Development Department (Unemp. Ins. Code, § 1090)

• Department of State Hospitals - If decedent, or his spouse, father, mother, or child, has been a patient in a state hospital preceding the date of decedent's death, notice must have been given to the Department of State Hospitals (Welf. & Inst. Code, § 7277.1)

• Attorney General - If estate may involve a devise to a charitable trust without a designated trustee, or a devise for charitable purposes without an identified devisee, notice must be served on the Attorney General (Prob. Code, § 8111)

Final Inventory and Appraisal – There is no Final Inventory and Appraisal on file.  A Final Inventory and Appraisal is a fundamental requirement in the administration of a decedent’s estate.  Failure to timely file an Inventory and Appraisal subjects the petitioner and her attorney to surcharge.  (Prob. Code, §8800-8804; see generally Estate of Kampen (2011) 201 CA4th 971.) 

The Final I & A must comply with the following requirements:

• Inventory and appraisal must be in a single document, and was filed within 4 months after letters are first issued. (Prob. Code, § 8800)
• Contains certification that Change in Ownership Statement was filed with county recorder or assessor, unless decedent owned no real property (Prob. Code, 8800, subd. (d)) (i.e. Petitioner must file the appropriate notice indicated in Paragraph 5b, and check that box.)
• I & A separately lists each item of property to be administered, and states opposite of that item, its fair market value (valued at time of death) in monetary terms (Prob. Code, § 8802)
• I & A contains all items listed in Probate Code section 8850 (money owed, bonds, interest in partnership, mortages, deeds of trust, etc. and nature of the property [community, quasi-community, or separate])
• I & A included appraisal of money, checks for wages and refunds, accounts at financial institutions, CDs, money market mutual funds (def. in Prob. Code, § 9730), brokerage accounts, and all forms of securities (§ 8901) must be done by the Probate Referee, not the personal representative. (§ 8902)

Supplement to the Petition.  The following defects require a supplement to the petition in order to comply with the relevant code section cited, or give the Court the necessary information to adjudicate the ability of the estate to be closed:

• Factual information, relevant to, and matching the petition for letters - (Date decedent died, date Personal Representative appointed, date letters of administration issued, bond amount, or waiver of bond, whether Independent Authority of Estate Administration powers granted, actions taken under the IAEA, etc.)
• Property Description -  Allegations must:
  • “list and describe in detail the property to be distributed, in the body of the petition or in an attachment that is incorporated in the petition by reference.”  (CRC, Rule 7.651, subd. (a))
  • include the amount of cash on hand (CRC, Rule 7.651, subd. (b)(1))
  • state whether promissory notes are secured or unsecured, and describe in detail the security interest of any secured notes (CRC, Rule 7.651, subd. (b)(2))
  • include the complete legal description, street address (if any), and assessor's parcel number (if any) of real property CRC, Rule 7.651, subd. (b)(3))
  • include the complete description of each individual security held in "street name" in security brokers' accounts (CRC, Rule 7.651, subd. (b)(4))
  • include the character of the property to be distributed (e.g. separate, community, or quasi-community) (CRC, Rule 7.652, subd. (a)(1); see also Prob. Code, § 8850)
  • include whether or not property is the decedent's one-half interest only, or the entire interest of the decedent and the decedent's spouse, IF community/quasi-community property is to be distributed (CRC, Rule 7.652, subd. (a)(2))
  • must show the surviving spouse filed a written election to probate the property within 4 months after issuance of letters, IF community/quasi community property is to be distributed outright to the surviving spouse (Prob. Code, § 13502)

Supplement to the Petition. The proposed distribution differs from the distribution ordered by Decedent’s Last Will and Testament. A supplement is required to explain why distribution is different and must be accompanied by Points and Authorities explaining how this court has authority to make a distribution different from the will.

Accounting or Waivers.  Each person entitled to distribution from the estate may waive a final account by 1) filing a written waiver of account (Prob. Code, § 10954, subd. (a)(1)); OR by filing 2) proof of adequate provision for satisfaction in full of the person’s interest (Id., subd. (a)(2)). No such document was filed.

The final account must be submitted, if not waived. (Prob. Code, § 10951.)  The final account must contain all items listed in Probate Code section 1061:

• (1) The property on hand at the beginning of the period covered by the account, which shall be the value of the property initially received by the fiduciary if this is the first account, and shall be the property on hand at the end of the prior account if this is a subsequent account.
• (2) The value of any assets received during the period of the accounting which are not assets on hand as of the commencement of the administration of an estate.
• The amount of any receipts of income or principal, excluding items listed under paragraphs (1) and (2) or receipts from a trade or business.
• Net income from a trade or business.
• Gains on sales.
• The amount of disbursements, excluding disbursements for a trade or business or distributions.
• Loss on sales.
• Net loss from trade or business.
• Distributions to beneficiaries, the ward or conservatee.
• Property on hand at the end of the accounting period, stated at its carry value.

Final Report.  A “final report of administration” must be filed at the same time a final account would be required.  (Prob. Code, § 10954(c)[requires amount of compensation paid/payable to PR or attorney & basis for determination].)  Allegations in the petition must include:

• all information regarding creditor’s claims; whether or not one was filed, and status of any claims filed (CRC, Rule 7.550(b)(1)), including the following information for each claim (CRC, Rule 7.403; Prob. Code, § 10900):
  • claimant's name
  • date of filing of the claim
  • nature of the claim
  • amount claimed
  • disposition of the claim
  • the date of service of the rejection and whether or not a lawsuit was filed, IF a creditor’s claim was rejected
• Allegations must include actions taken under IAEA, including:
  • sales, purchases, or exchanges of assets (CRC, Rule 7.550(b)(2))
  • changes in the form of assets (CRC, Rule 7.550(b)(3))
  • assets on hand (CRC, Rule 7.550(b)(4))
  • whether the estate is solvent (CRC, Rule 7.550(b)(5))
  • detailed schedules of receipts and gains or losses on sale, IF an amount other than the amount of the Inventory and Appraisal is used as a basis for calculating fees or commissions (CRC, Rule 7.550(b)(6))
  • a list of costs of administration, IF reimbursement of administration costs is requested  (CRC, Rule 7.550(b)(7))
  • a list of the amount of any fees or commissions paid or to be paid (CRC, Rule 7.550(b)(8)), and the calculation of such fees or commissions as described in CRC, Rule 7.705(b) (CRC, Rule 7.550(b)(9))

If an accounting is required, the Final Report must include the following:

• A description of all sales, purchases, changes in the form of assets, or other transactions occurring during the period of the account that are not otherwise readily understandable from the schedule. (Prob. Code, § 1064(a)(1)) (e.g. costs advanced by PR or attorney)
• An explanation of any unusual items appearing in the account. (Prob. Code, § 1064(a)(2)) (e.g. if no cash, information regarding the source of funds that will be used to pay the fees, since fees must be paid out of the estate (Prob. Code, § 10831(d))
• A statement of all compensation paid from the assets subject to the account to the fiduciary or to the attorneys for the fiduciary other than pursuant to a prior court order. (Prob. Code, § 1064(a)(3))
• A statement disclosing any family or affiliate relationship between the fiduciary and any agent hired by the fiduciary during the accounting period. (Prob. Code, § 1064(a)(4))
• An allegation disclosing whether all of the cash has been invested and maintained in interest bearing accounts or in investments authorized by law or the governing instrument, except for an amount of cash that is reasonably necessary for the orderly administration of the estate.  (Prob. Code, § 1064(a)(5))

Extraordinary Fees.  If extraordinary compensation is requested for the personal representative or attorney in Prayer, allegations must contain enough facts for the Court to exercise discretion pursuant to Probate Code section 10811 and CRC, Rule 7.703. This authority mandates detailed billing documentation containing adequate descriptions of work performed, the time spent on that work, the rate billed for that work, and the amount charged for the work performed.

Proposed Order.  A proposed order must be submitted with relief that matches that requested in the petition. (Local Rule 1724(b), subd.(d).)  Order must list every beneficiary and detail the shares to each, and must expressly state limitations or conditions on distribution.  (Prob. Code, § 11603.)  IF whereabouts of a distributee are unknown, the Proposed Order must provide for alternate distributes, and detail the share to which they are entitled per PC § 11603(c).  It is highly recommended petitioner use Local Form SC-6029. 

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).