Matter of The Verdin Revocable Family Trust

Case Number

25PR00521

Case Type

Hearing Date / Time

Tue, 12/02/2025 - 08:30

Nature of Proceedings

Petition: Determine Claim to Property

Tentative Ruling

Probate Notes:

Appearances required. 

Any Respondents desirous to object 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. 

The following must be submitted:

Supplement showing why the petition should not be denied.  The petition in this case reveals two facts on its face that warrant denial of the petition for lack of standing and lack of necessity. 

First, there is a lack of standing because no other persons than the deceased settlor and surviving settlor claim title to the subject real property. This means the court does not have jurisdiction to make the requested orders, because no property is claimed “by another” under section 850, thus there is no title dispute.

Probate Code section 850 only grants this Court authority to determine title to property when title to that property is claimed to be held by someone other than the rightful title holder who is either a guardian, conservator, minor, personal representative, or trustee.  (Prob. Code, § 850. subds. (a)(1-3).)  Since the only title holder in this case is the trustee, the court lacks standing to make an order related to tile that would have any effect against another.

Second, this petition is not necessary because Petitioner is the settlor of the subject trust, and appears to hold title to the subject property, at least jointly with decedent.  The trust instrument does not make the trust irrevocable upon the death of the first settlor, thus the trust may still be amended by the surviving settlor, and the surviving settlor has full authority to transfer the subject real property into the trust without a court order.  “In other words, the touchstone for equity is the lack of an adequate legal remedy, and equity will not entertain jurisdiction if there is an adequate, complete, plain, and speedy remedy at law.” (30A Corp. Juris Sec., Equity § 18.)  This court is a court of equity, thus cannot act until Petitioner presents an adequate wrong for which there is no remedy at law.

If the supplement does not outline a legitimate legal obstacle prohibiting Petitioner, as surviving settlor, from transferring title to the trust without a court order, the petition will be recommended for DENIAL.

 

Recorded Title.  Petitioner alleges title is held by the trust, but does not submit evidence showing how title is held.  Since “a person may not transfer an estate or interest in property unless that person is the owner of the estate or interest in question or has the legal authority to act on that owner's behalf” (Restatement (Fourth) of Property § 1.1 (2024), the Court must have evidence of how title is held:

The nemo dat principle is typically expressed in the full Latin phrase “nemo dat quod non habet,” which roughly translates to “one can only transfer what one owns” or, in the negative, “one cannot transfer property that one does not own.” It is sometimes called the “derivation principle” because the transferee's interest derives from the transferor's.

(Id., at cmnt. a. See also (Miller & Starr (2024) 3 Cal. Real Est. § 8:58 (4th ed.) § 8:58 [“It is axiomatic that a deed cannot convey more than is owned by the grantor. If a deed purports to convey property that is not owned by the grantor, it is ineffective to convey the property, and it is a “wild deed” that can have no effect on title of the person who holds real title to the property.”]; and Romero v. Shih (2024) 15 Cal.5th 680, 689 [citing same in Miller & Starr].)

Defective Service.  The Proof of Service in this case shows service of Notice of Hearing was not on the mandated Judicial Council form DE-115, thus service did not contain the requisite information for a Probate Code section 850 Petition to Determine a Claim to 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.

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

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 797 5412

Passcode: 8749009