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Matter of The Cody Trust

Case Number

25PR00083

Case Type

Trust

Hearing Date / Time

Mon, 03/24/2025 - 08:30

Nature of Proceedings

Petition to Determine Claim to Property

Tentative Ruling

Probate Notes:

APPEARANCES REQUIRED.

The following is given for the Court’s consideration at the hearing:

The Court should deny the third prayer to confirm the subject property a trust asset, and approve the petition as far the 1st, 2nd, and 4th prayer.

The Court should deny the third prayer, because Evidence Code section 662 creates a presumption that the last recorded document shows decedent’s intent was to hold the subject property out of trust, and there is no evidence of decedent taking any affirmative steps to place the property back into trust.

Evidence Code section 662 states: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”  That authority has been held to be trumped by community property presumptions in the Family Code, but only when the action before the court is between spouses. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1413 “To the extent Brooks said anything suggesting [Evidence Code] section 662 would apply to an action between the spouses, it mistakenly relied on [citation], and is, accordingly, unpersuasive.) 

As a result of the holding In re Marriage of Valli, previous authority should be followed as far as it holds that the exact situation before this court cannot result in confirmation of property as a trust asset. In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, the court expressly held:

Significantly, “the presumption cannot be overcome solely by tracing the funds used to purchase the property, nor by testimony of an intention not disclosed to the grantee at the time of the execution of the conveyance.” [Citations.] Nor can the presumption be rebutted by evidence that title was taken in a particular manner merely to obtain a loan.

(Id. at p. 190 [abrogated on other grounds by In re Marriage of Valli (2014) 58 Cal.4th 1396 [emphasis added].)  This holding was confirmed in In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 344, n. 5 [“the form of title presumption may not be “rebutted by evidence that title was taken in a particular manner merely to obtain a loan.”]), and was also upheld in an un-published case titled In re Estate of Szanto (Cal. Ct. App., Mar. 11, 2008, No. A116147) 2008 WL 643803, at *7 [“There is no evidence, nor even a contention by respondents, that Paul and Klara made a written declaration of trust after they formally transferred the property out of their trust.”].)

In light of the above authority, the petition should be denied as to prayer three, because that prayer contains a request for the Court to specifically confirm the subject property a trust asset, when it was admittedly taken out of the trust by a recorded instrument, and never placed back in for over 17 years, and the trust was never altered thereafter to include the subject property.

Heggstad does not govern here, because the facts are completely different.

The merits of this petition are not governed by Estate of Heggstad, sas cited by petitioner. 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.) 

The Court of Appeal reached this conclusion after reviewing section 40 of the Restatement (Second) of Trusts, which is the Statute of Frauds, and reasoning:

Additionally, comment b to section 40 (statute of frauds) establishes that a written declaration of trust, by itself, is sufficient to create a trust in the property. Comment b states: “Methods of creation of trust. The Statute of Frauds is applicable whether a trust of an interest in land is created by the owner's declaring himself trustee, or by a transfer by him to another in trust.” (Second emphasis added.)

(Id. at p. 949.)  Thus, the Court of Appeal reached the holding in Heggstad by tethering the specific facts of that case to the governing law on satisfying the writing requirement of the Statute of Frauds.  Specifically, the Court of Appeal found that the entry of the subject property on schedule A of the Trust satisfied the writing requirement.

In contrast, the allegations and evidence in this case are starkly different than those in Estate of Heggstad. Unlike that case, Petitioner admits the subject real property was actually put in the trust and then taken back out by a recorded instrument.  In contrast, the real property in Heggstad was never recorded in the name of the trust after the trust instrument was executed. This fact is the nail in the coffin for this case. An actual recorded instrument shows the last recorded evidence of Decedent’s intent was to take the property out of trust.

Therefore, the Petition is not a “Heggstad” Petition, because it is not governed by the very specific precedent in Estate of Heggstad.

However, Evidence Code section 662 only creates a presumption. Although the presumption is rebuttable by clear and convincing evidence, very little uncontested evidence could be deemed by this Court to be sufficient to overcome the presumption by the clear and convincing standard. 

Unfortunately, the circumstances here do not militate towards such a finding, because the petitioner submitted zero supported evidence (other than bare allegations of intent) that the decedent intended to place the subject property back in the trust.  The Court could allow amendment to the petition to include such evidence.

Accordingly, the Court should deny prayer three, as discussed above, or continue the hearing and allow further evidence of intent.

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