Estate of Wilbur Huang

Case Number

24PR00111

Case Type

Hearing Date / Time

Wed, 04/17/2024 - 08:30

Nature of Proceedings

Spousal Property Petition

Tentative Ruling

Probate Notes:

The following must be submitted:

Proof of Timely Mailed Service. Service of Notice of Hearing (form DE-120) and a copy of the petition must be given 15 days prior to hearing (Prob. Code, §§ 13655 &1220), and must be served on heirs, devisees, trustee (Id. at subd. (a)(2)), and any named executor in a decedent’s will (Prob. Code, §13651(a)(5)). 

Supplement.  A supplement is required to address the following issues:

• Proposed Distribution of Separate Property.  Tittle to the subject real property was obtained in the name of the Decedent as a single man, almost four months before he was married. This makes the subject property separate property, unless the Decedent and Petitioner paid for the property after marriage with community funds (creating Moore/Marsden offsets).  Petitioner also alleges at paragraph 8 that there does not exist a written agreement to transmute the property into community property.  Thus, the proposed distribution to the surviving spouse does not comply with the Probate Code intestate distribution scheme at Probate Code section 6400 et seq. 

Petitioner alleges the writing attached at 4c is a will that contains the intent of the Decedent to pass his separate property share to his surviving spouse. Petitioner admits the will was not executed in conformity with California law, having been only notarized and not attested to by two witnesses (Prob. Code, §6110), and is not self-proving pursuant to Probate Code sections 8220(b), and 8221(b)(1), because it does not contain an attestation clause by two witnesses under the penalty of perjury.

When a will is attested to by a single witness (notary or otherwise), it is not executed in conformity with California law.  (Prob. Code, §6110(c)(1).)  This does not defeat the admission of the will to probate, but supplement is required to meet the evidentiary standard in Probate Code section 6110(c)(2).  The supplement should point to evidence that meets the clear and convincing standard, an example of which is found in Estate of Ben-Ali (2013) 216 Cal.App.4th 1026, 1037, which includes, but is not limited to the following:

• Age when Decedent allegedly executed the will.
• Witness knowledge of the will or the circumstances of its execution.
• Evidence Decedent spoke about testamentary intentions with anyone, or mentioned the will to anyone after execution of the will and prior to death.
• Testimony as to how the typewritten will had been prepared, who had drafted it, or who Decedent might have consulted with about its terms or phrasing.
• Location of the original copy of the will when found, and whether it was among Decedent’s belongings.

On the facts alleged in the petition alone, the will could not be considered to contain the intent of Decedent. More evidence is required.

Further, the following facts should also be clarified in the supplement:

• A list of all real and personal property Decedent owned prior to the date of marriage, and if so, a description and approximation of values. (Local Rule 1761.)  For each asset for which a determination that it pass or be confirmed to the surviving spouse, a description of the manner in which the asset was acquired by decedent, including source of funds or loans, title to asset, etc. (Ibid.)
• Any additional facts upon which the claim that property is community or quasi-community property is based. (Ibid.)

Proposed Order. A proposed order with relief matching that requested in the petition, using Judicial Council Form DE-226 (Local Rule 1724, subd. (b)), must be submitted.

If the documents curing these deficiencies are not processed by 8:00 a.m. on April 15, 2024, it is recommended that the matter be continued to a date to be set by the Court at the hearing, unless the party appears and requests a different date, or submits a request for a different continuance date prior to the hearing. (Local Rule 1721(c)(2)(A-B).) If the matter is continued, documents must be submitted at least 10 days prior to the new hearing date to be considered.

 

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).