Tentative Ruling: Estate of Bruce W. Herber

Case Number

25PR00419

Case Type

Hearing Date / Time

Wed, 10/21/2026 - 09:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required.

The matter will be continued for the following reasons:

Accounting or Waivers.  A final accounting must be submitted, unless each person entitled to distribution from the trust waives the final account by 1) filing a written waiver of account (Prob. Code, § 10954, subd. (a)(1)); OR by filing 2) proof of adequate provision for satisfaction in full of the person’s interest (Id., subd. (a)(2)). No such document was filed.

The final account must be submitted, if not waived. (Prob. Code, § 10951.)  The final account must contain all items listed in Probate Code section 1061:

• (1) The property on hand at the beginning of the period covered by the account, which shall be the value of the property initially received by the fiduciary if this is the first account, and shall be the property on hand at the end of the prior account if this is a subsequent account.
• (2) The value of any assets received during the period of the accounting which are not assets on hand as of the commencement of the administration of an estate.
• The amount of any receipts of income or principal, excluding items listed under paragraphs (1) and (2) or receipts from a trade or business.
• Net income from a trade or business.
• Gains on sales.
• The amount of disbursements, excluding disbursements for a trade or business or distributions.
• Loss on sales.
• Net loss from trade or business.
• Distributions to beneficiaries, the ward or conservatee.
• Property on hand at the end of the accounting period, stated at its carry value.

Supplement re: No Asset Estate and Equity.  The trust instrument governing the trust into which this estate will “pour-over” contains the following general assignment clause:

All of Trustor's property of every kind, nature and description, whether real, personal or mixed and whether tangible or intangible, wherever located, whether acquired or received before, concurrently with, or after the date of execution of this Trust, including but not limited to notes receivable, partnership interests, governmental obligations, stocks and bonds, even if, by reason of legal formalities in processing documentation or otherwise, the recorded or nominal title to any such property may still be in the name of Trustor, except for (i) any interest in a pension, profit-sharing or other retirement plan or in an individual retirement account, and (ii) life insurance policies on the life of Trustor.

(Supp. to Pet. for Prob., filed Sept. 25, 2025, at dgtl. p. 31.)

This clause is sufficient to incorporate all property listed within the Final Inventory and Appraisal filed on July 14, 2026, and raises a presumption that the estate has no property, thus cannot be subject to probate. (See Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156; Kucker v. Kucker (2011) 192 Cal.App.4th 90.)

Further problematic are the allegations in the petition that no statutory fees are sought, presumably because the fees are being paid out of the trust.  Depending on the work performed, and fee amount, this would be an inequitable result, when this matter appears to have been able to be solved by a simple Petition to Determine Claim to Property filed under Probate Code section 850.

Supplement should explain, in great detail, why the property listed in the Final Inventory and Appraisal is estate property, not trust property, and must include fee amounts paid or proposed out of the trust for the work performed on this probate case.

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).