Matter of the Valerie V Twitchell Family Trust

Case Number

24PR00292

Case Type

Hearing Date / Time

Mon, 06/24/2024 - 09:00

Nature of Proceedings

Petition to Determine Claim to Real Property

Tentative Ruling

Probate Notes:

Appearances required. 

The following defect requires continuance:

Defective Service.  The Proof of Service of Notice of Hearing was filed on form DE-120, which does not contain the requisite information for a Probate Code section 850 Petition to Determine Title to Real Property.

Service of Petitions pursuant to section 850 of the Probate Code is governed by section 851, which references CCP section 413.10:

At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable:

(1) The personal representative, conservator, guardian, or trustee as appropriate. 

(2) Each person claiming an interest in, or having title to or possession of, the property.

(Prob. Code, § 851(a).)  According to that chapter of the CCP, service of the petition must be on the person (CCP, §§413.10; 415.10) the same as a civil summons, with exceptions for mailing and publication as that law provides when the serving party proves the petition “cannot with reasonable diligence be personally delivered to the person to be served…” (CCP, §415.20(b).)

Further, section 851 requires Notices of Petitions pursuant to Probate Code section 850 “shall contain all of the following”:

(1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.

(2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.

(3) A statement advising any person interested in the property that he or she may file a response to the petition.

(Prob. Code, § 851(c) [emphasis added].)  To ensure this information is in the notice, the Judicial Council created form DE-115 to be used for all petitions pursuant to section 850.

Thus, the proof of service must be submitted using Form DE-115, which became mandatory on January 1, 2020, and must be personally served on any person who claims an interest in the property (which includes beneficiaries).

The proof of service filed does not conform to the above requirements, thus has not satisfied due process.

AT THE CONTINUED HEARING, FURTHER BRIEFING MUST ADDRESS THE FOLLOWING DEFECTS:

Defect of Jurisdiction.  It appears from the allegations on the face of the pleading that this Court lacks jurisdiction to grant the requested relief, because the real property/mineral interests at issue are not located in the state of California, but are located in the state of Texas.  “A court of one state cannot directly affect or determine title to real property in another.”  (Phelps v. Kozakar (1983) 146 Cal.App.3d 1078, 1084 [citing Fall v. Eastin (1909) 215 U.S. 1; Taylor v. Taylor (1923) 192 Cal. 71.].) The most this Court could do is order the trustee, over which this Court has personal jurisdiction, to convey title of the subject property into the trust now.  (Phelps v. Kozakar, supra, 146 Cal.App.3d at p. 1084 [“Jurisdiction of the person in the state includes power to compel conveyance and waivers as to interests in lands outside the state. [Citation.] Such a decree does not operate directly upon the property nor affect the title.”].) This Court cannot, however, order Texas to consider its own property to be held in trust as a result of past inactions of a trustee in California.

This issue is discussed in depth in California Jurisprudence:

Although the court of one state cannot directly affect or determine the title to land in another, a court may render a personal judgment, which will be enforceable in another state, requiring the conveyance of lands lying outside the state of the court rendering the decree. While a court is without jurisdiction to quiet title to property beyond its territorial limits, for example, it may require a quitclaim or waiver of interest in land outside its jurisdiction, and upon proper grounds compel a party to convey the party's interest in land outside the state.

(16 Cal. Jur. 3d Courts § 102 [emphasis added].)

This issue was also addressed in a 1958 Supreme Court of the United States case:

But jurisdiction cannot be predicated upon the contingent role of this Florida will. Whatever the efficacy of a so-called ‘in rem’ jurisdiction over assets admittedly passing under a local will, a State acquires no in rem jurisdiction to adjudicate the validity of inter vivos dispositions simply because its decision might augment an estate passing under a will probated in its courts. If such a basis of jurisdiction were sustained, probate courts would enjoy nationwide service of process to adjudicate interests in property with which neither the State nor the decedent could claim any affiliation. The settlor-decedent's Florida domicile is equally unavailing as a basis for jurisdiction over the trust assets. For the purpose of jurisdiction in rem the maxim that personalty has its situs at the domicile of its owner is a fiction of limited utility. [Citations.] The maxim is no less suspect when the domicile is that of a decedent. In analogous cases, this Court has rejected the suggestion that the probate decree of the State where decedent was domiciled has an in rem effect on personalty outside the forum State that could render it conclusive on the interests of nonresidents over whom there was no personal jurisdiction. [Citations.] The fact that the owner is or was domiciled within the forum State is not a sufficient affiliation with the property upon which to base jurisdiction in rem.

(Hanson v. Denckla (1958) 357 U.S. 235, 248–249.)

Defect on the Merits. The Petitioner cites to Estate of Heggstad for the proposition that the subject real property/mineral rights should be considered trust property, but the subject real property is not listed on Schedule A of the subject trust, as was the property there listed in Estate of Heggstad.

In Estate of Heggstad, the real property at issue “was listed as item No. 5 on schedule A” and “remained in decedent's name, as an unmarried man, and there was no grant deed reconveying this property to himself as trustee of the revocable living trust.”  (Estate of Heggstad (1993) 16 Cal.App.4th 943, 946.)  On those very specific facts, the Court of Appeal held “the written document declaring a trust in the property described in Schedule A was signed by the decedent at the time he made the declaration and constitutes a proper manifestation of his intent to create a trust.” (Id. at p. 948.)

Once proper service has been completed, any objecting respondents must file a written objection before the next hearing.  The court has authority to require all objectors to file a written objection pursuant CRC, Rule 7.801, or else deem the failure to do so a waiver.

It is recommended the hearing be continued to a date set by the Court at the hearing, to allow sufficient time for re-service in conformity with the new rule.