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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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Estate of Lewis Alonza Hamilton

Case Number

22PR00369

Case Type

Decedent's Estate

Hearing Date / Time

Wed, 07/03/2024 - 08:30

Nature of Proceedings

Final Distribution, OSC re: Removal of Personal Representatives

Tentative Ruling

Probate Notes:

Appearances required.

Erik Black and all interested parties must attend the hearing, and come prepared to discuss the following:

Erik Black Improperly Appointed as Personal Representative

It appears from the Court record that Erik Black was appointed the Personal Representative without due process. 

The initial Petition for Letters of Administration in this matter was filed by Mr. Black as the attorney for Justyn Hamilton, and prayed for Mr. Hamilton’s appointment as the personal representative. The petition alleged that the total value of the estate was $281,000, and listed only three known and relevant heirs who could take from the Decedent’s estate[1]:

  1. Tyler Hamilton, adult son of Decedent
  2. Justyn Hamilton, adult son of Decedent
  3. Dalaney Hamilton, minor daughter of Decedent in care of Jessica Campbell Hamilton, who appears to be the former spouse of the Decedent.

Attached to the petition were waivers of bond by all three persons entitled to take from the estate.

At the first hearing on that petition (November 2, 2022), it was noted that publication had not occurred, and other procedural defects needed to be resolved before the Court could approve the petition. The matter was continued to January 11, 2023.  However, before that hearing occurred, Mr. Black submitted the First Amended Petition for Letters of Administration on behalf of his client, Mr. Hamilton, and that petition was filed November 8, 2022.  The difference in the First Amended Petition is subtle, but material: Delaney Hamilton was no longer being represented by her mother as Guardian ad Litem, and bond was no longer being waived.

At the January 11, 2023 hearing, the petition was conditionally approved based on the promise that application for an $800,000 bond was made and in-process.  The Court noted that Letters of Administration would not issue until proof of bond was filed. An Order for Probate was signed appointing Mr. Hamilton the Personal Representative, and fixing bond at $800,000.  There is no explanation on the record at the hearing, or on file with the Court why bond was now sought, nor explaining why bond was set for $800,000, nor why Delany Hamilton’s interests were no longer being represented by a Guardian ad Litem.  This is the first procedurally improper deviance from the proper procedural path.

What should have been done, at the very least, was a hearing be set on the value of the bond, and cause given why Delany Hamilton should have not been appointed a Guardian ad Litem to protect her interests.

For reasons not contained on the record, a First Amended Order for Probate was signed and filed by the Court on January 25, 2023.  It appears the amendment was a result of a Declaration filed by Mr. Black on behalf of his client, Mr. Hamilton, that alleged the bond amount was unreasonably high and should be reduced to $281,000.  This is the second procedurally improper deviance from the proper procedural path. 

As stated above, a hearing on the bond should have been scheduled with notice to all entitled to notice.  The property value of the estate could have been determined at that hearing, and all the procedural due process issues would have been resolved.

But there is more. On April 6, 2023, Erik Black filed a “Declaration of Erik D. Black in Support of Change of Administrator of Estate Due to Bond.”  Mr. Black, while admitting he represented Justyn Hamilton, requested to be appointed administrator of the estate, because Mr. Hamilton could not qualify for bond.  This was not only procedurally inappropriate due to the fact that a formal removal of the already appointed personal representative would need to occur via noticed hearing (Prob. Code, §8500), but also appears to be ethically improper due to the adverse/conflict of interests involved with such a request.

First, not only is requesting affirmative action not ever procedurally appropriate in a Declaration (because it is not a proper, noticed pleading), but even if it had been a properly filed ex parte request, the request could not be granted ex parte without a proper petition on the mandated Judicial Council form, with notice to all entitled to take.  (Bailey v. Bailey (2023) 96 Cal.App.5th 269, 273. [Citing (Estate of Kelly (2009) 172 Cal.App.4th 1367, 1373) “[I]n the context of the Probate Code, ‘notice’ has a particular meaning, as it may have constitutional due process implications.”].  See also Estate of Carter (2003) 111 Cal.App.4th 1139, 4 Cal.Rptr.3d 490 [holding same rule applies to reasonably ascertainable heirs of intestate estate].)

Second, ethically it is improper for an attorney to seek appointment as a personal representative, when that attorney currently represents, or formally represented a person already appointed.  This is a direct conflict of interest violating Rule 1.7(b) of the Rules of Professional Conduct:

A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.

 

As a result of the current improper procedural posture of the case, it is recommended the Court set this matter for Order to Show Cause re: Removal of Personal Representatives (since both Erik Black and Justyn Hamilton are technically both appointed according to the record), and order notice to the surety and Public Administrator of the matter to place both on notice of the Court’s concerns.

[1] For purposes of this note, these are the only persons entitled to notice.

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 956 1423

Passcode: 137305

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