Tentative Ruling: Estate of James R Kotaska

Case Number

26PR00025

Case Type

Hearing Date / Time

Wed, 05/27/2026 - 09:30

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.

After review of the supplements filed on March 9, 10, and 11, 2026, the following is noted for the Court at the hearing:

This case began on January 13, 2026, with the filing of a Petition for Probate of Will and Letters Testamentary.  According to the allegations in that petition, the Decedent died testate, and a purported will was proffered for admission to probate. This pleading framed the issues before the court as alleged in that pleading, and any allegations alleging new material facts could not be submitted without amendment to the petition. (CRC, Rules 7.3(3) and (4), 7.53(a) and (b).)

The Probate Notes posted by the Court’s Judicial Staff Attorney recommended the Court reject that will on the grounds that it was an unlawful hybrid that was not executed in conformity with the Probate Code and caselaw in this state rejecting such a will.

In response to that Probate Note, Petitioner submitted the first supplement which admitted the handwritten portions of the fill-in-the-blank styled will relied on the printed portions to constitute a single testamentary instrument. As a result, the will was recommended for denial to probate and a finding by the court that the decedent died intestate.  The hearing on the Petition for Probate and Letters Testamentary was continued.

In response to the recommendation to deny admission of the will to probate, Petitioner submitted a second supplement requesting withdrawal of the fill-in-the-blank will for consideration, and proffered a second, holographic will for consideration to probate. This was procedurally improper, because that is a material change in the allegations, that required the Petitioner to amend the pleading. 

When the Probate Notes were posted that considered the supplement, many issues were highlighted as problematic.  Yet in response to those notes, there was no amendment filed.  Instead, Petitioner filed a third supplement asking for withdrawal of the second supplement and for the Court to find that the decedent died intestate.

There are two problems with that request.  First, it is procedurally improper. Such a request requires amendment to the petition and re-service according to California Rules of Court, Rules 7.3 and 7.53.  Second, the Court cannot “unsee” two proffered testamentary devices that identify potential divisees of the Decedent’s estate, even if ultimately the Court determines the Decedent died intestate.  Those persons still have a Due Process right to notice and a hearing.

Therefore, the following is recommended for the Court at this hearing:

Require amended petition.  Due to the constant moving target that petitioner created with now two alleged wills and a request to withdraw them both, it is recommended the Court order the Petition be amended to reflect the final position of the petitioner, and accompanying allegations supporting that final position.  This is required by the CRC, as cited above.

Order service on all persons identified in both purported testamentary instruments, and Proof of Service of Notice of Hearing (Form DE-121) filed. 

Notice must be given 15 days prior to hearing, served on all known heirs and devisees, as well as on the Personal Representative (if not the petitioner) and special notice requestors.  (Prob. Code, §§ 8100 & 8110.) Notice must be sent to the person, not the person’s representative. (§1220.)

According to the allegations in the petition, and the first supplement filed on March 9, 2026, the following heirs have been identified:

1. William Kotaksa (jr.?) – Brother of decedent.
2. Barbara Kotaksa Gruber – Deceased sister of decedent.
3. Paul C. Gruber – Son of Barbara Kotaksa Gruber, nephew of decedent.

Further persons entitled to notice that were identified in the second supplement are as follows:

1. Decedent’s neighbors, “John and Patti” identified in the will.
2. “Roger” identified in the will.
3. “Roger’s brother” identified in the will.
4. The ‘step children’ of William Kotaksa.

The Amended proof of service filed on March 9, 2026, did not include the persons listed above in the ‘further persons entitle to notice’ section.  Proof of service must be given to these newly identified persons, and the Court has discretion to order such service. (Prob. Code, §1202.)

Order waivers of Bond. Bond must be waived by all adult heirs at law. Petitioner must file bond waivers (Form DE-142) for all heirs or devisees named in a will.

There is no bond waiver on file for Paul C. Gruber, William Kotaksa, or any of the further persons entitled to notice above.

If petitioner changes their mind and seeks to admit one (or both) of the proffered wills to probate, the following must be submitted:

Original Will.  An original will, and any codicil to that will, must be lodged with the Court. (Prob. Code, §§ 8200, et seq.)  It is insufficient to attach a copy of the will to the petition without lodging the original.

Proof of Holographic Instrument (Form DE-135). The petition requests a holographic will or codicil be admitted to probate. All codicils must be proven in the same manner as a will (Prob. Code, §§ 88, 6110, 8222), and all holographic instruments must be proven by submission of evidence that that the holographic instrument is in fact in the testator’s handwriting.  Form DE-135 must be used to do so.

Nomination of Administrator.  The holographic will does not name an executor.  Petitioner does not have priority of administration over William Kotaksa or Paul Gruber pursuant to Probate Code section 8461. Please submit a nomination from all those with equal or greater priority. A written declination must be filed by or on behalf of an individual who is entitled to priority for issuance of Letters of administration but does not desire to act, or evidence must be produced that the person with priority is not competent under Probate Code section 8402 or refuses to act. (Local Rule 1752(d)1.)