Tentative Ruling: Estate of Roulston Ellard Cody
Case Number
25PR00083
Case Type
Hearing Date / Time
Mon, 03/30/2026 - 08:30
Nature of Proceedings
Petition for Final Distribution
Tentative Ruling
Probate Notes:
Appearances required.
The following is noted for the Court at the hearing:
Roulston Ellard Cody died on June 17, 2022. His wife predeceased him on August 13, 2000. Decedent had four children during his lifetime. On the date of Decedent’s death, two of his children had pre-deceased him, leaving four issue. Thus, on the date of Decedent’s death, there were 6 persons entitled to take from the decedent’s trust pursuant to the provisions in the trust at sections 4.03 and 4.04 of the trust.
Sale of Real Property Occurred to the Personal Representative without Court Confirmation or unanimous consent, in violation of Probate Code section 10501. Petitioners are two survivors of the four children of the decedent. Petitioners admit at attachment 17 to the petition that the only asset in the estate (real property at 801 West Nectarine Ave, Lompoc) was sold to the personal representatives of the estate without court confirmation, in violation of Probate Code section 10501(a)(5). Petitioners submitted supplement on March 26, 2026, explaining that the subject property was sold to avoid the loss of said property due to a reverse mortgage.
As petitioners point out in the supplement filed on March 26, 2026, this sale to the personal representatives would not have required court confirmation if all 6 surviving trust beneficiaries would have consented in writing to the sale. (Prob. Code, §10501(c). However, petitioners wrongfully concluded (and provided no authority for the proposition) that 4 consents out of six, with the remaining two beneficiaries not objecting is the legally same conclusion as obtaining all 6 consents. Thus, the sale violated the limitations outlined in section 10501(a) on the powers to sell the property under the Independent Administration of Estates Act.
Further perplexing is the proposed distribution of the estate. While the petitioners admit that the Last Will and Testament distributes any and all of Decedent’s property held outside of the trust to the trust as a ‘pour over’ devise, the proposed distribution is contrarily to all of the named beneficiaries in the trust. This is problematic for two reasons.
First, you cannot skirt the rules of probate distribution just because the property will eventually be distributed a different way by the trust.[1] Thus, the court must order distribution of whatever property the estate actually holds according to the terms of Decedent’s Last Will and Testament, which devises the entire estate to the trust.
Second, the sale of estate property removes that property from the corpus of the estate res, thus making it legally impossible for the Court to order that same property distributed to the heirs or, in this case, the devisee (which is the trust). Thus, this Court cannot make an order for final distribution that transfers title of the subject property to the trust (or its beneficiaries), because the estate no longer holds title to the subject property.
There is also one further issue regarding the conflicting allegations in the petition for final distribution that the real property was sold, but the “the estate has no liquid assets.” How is that possible? If the property was sold, the consideration for the property must have been money. Where is the money? If the entirety of the purchase price of the subject property was used to repay the reverse mortgage on the real property, then the outcome of that sale was 1) the subject real property was transferred from the estate to the buyer; and 2) the estate is a no-asset estate not subject to final distribution pursuant to Probate Code section 12251.
Petitioners must come prepared to discuss these issues with the court, and provide a solution that would not create multiple clouds on the title to the property as their proposed distribution currently proffers.
[1] A party cannot avoid probating a deceased person’s estate just because the heirs would be the same as those in the deceased person’s trust. (Placencia v. Strazicich (2019) 42 Cal.App.5th 730, 744. [“Accordingly, it would be premature for the court to distribute Ralph's personal estate at this time. (See Estate of Hart (1957) 151 Cal.App.2d 271, 280-281, 311 P.2d 605 [where title vests subject to the administration of the estate, the right to possession is deferred until the distribution of the estate and is contingent upon the will not being set aside by a contest after probate].)
This is because title vests at date of death in the person to whom it is devised or inherited. (In re Estate of Meyer (1951) 107 Cal.App.2d 799, 810 [“The estate vests in the heir eo instante upon the death of the ancestor; and no act of his is required to perfect title. The estate is cast on the heir by operation of law without regard to his wishes or election. No assent or acceptance is necessary. He cannot, by any act, cause the estate to remain in the ancestor, for the latter is incapable of holding it after his death. He cannot, by any renunciation or disclaimer, prevent the passage of title to himself.”].)
Thus, a party cannot “skip” probate.