Estate of Michael Evangelista

Case Number

21PR00463

Case Type

Hearing Date / Time

Mon, 12/04/2023 - 08:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required. After supplement, the following defects persist:

Final Inventory and Appraisal – There is no Final Inventory and Appraisal on file for the current personal representative. The language of Probate Code section 8800(b) arguably requires every personal representative to file an Inventory and Appraisal, and this requirement matches the same requirement in the statutory schemes regulating the accountings for other matters in Probate Court (i.e. guardianships and conservatorships).  An Inventory and Appraisal is what proves to the court that the property from the former fiduciary was fully delivered to a successor fiduciary.  Thus, a Final Inventory and Appraisal is a fundamental requirement for every fiduciary to file, and failure to timely do so subjects the petitioner and her attorney to surcharge.  (Prob. Code, §8800-8804; see generally Estate of Kampen (2011) 201 Cal.App.4th 971.) 

To drive this point past reasonable debate, the same treatise reiterates this reality in another section as follows:

The accounts of personal representatives, conservators, and guardians are always subject to court approval and therefore must be prepared in conformance with Prob C §§1061–1064. Prob C §1060. In court accountings, the schedule Assets on Hand—Beginning of Period is a recapitulation of the inventories these fiduciaries must file. Prob C §1061(a). The fiduciaries use as their beginning values the fair market values stated on their inventories. Prob C §8802 (personal representatives) and §2610 (conservators and guardians).

(Fiduciary Accounting Handbook (CEB 2022), §4.15 “Differences Between First and Subsequent Accounts.”)

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)

It is recommended the Court sanction Petitioner and Attorney for Petitioner pursuant to Probate Code section 8804(c) for failure to timely file the Inventory and Appraisal.

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.) It is highly recommended petitioner use Local Form SC-6029.  No such document was filed with the court.

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).