Jul 03, 2020
 
Probate Trust Calendar
 
Friday, June 26, 2020              9:30 a.m. – Hon. Jennifer V. Dollard         
 
Courtroom 18 via Zoom
 
Probate matters will be heard as follows
 
PLEASE NOTE: In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility.  Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom.  No party or representative of a party may appear personally in Courtroom 18.  CourtCall is not permitted for this calendar.
 
 

If the tentative ruling is accepted, no appearance by Zoom is necessary unless otherwise indicated.  You must notify the probate clerk at (707) 521-6893 if you wish to be heard in response to the tentative ruling.  Any interested party who wishes to be heard in opposition to a petition must notify all other parties of the intent to appear.  Both notifications must be completed no later than 4:00 p.m. on the court day immediately preceding the day of the hearing.

Unless notification to the probate clerk has been given as provided above, the tentative rulings shall become the rulings of the court at 9:45 a.m. on the day of the hearing. 
 
TO JOIN “ZOOM” ONLINE,
D18 – Probate 9:30am Friday
MeetingID: 838—5609--8726
Password: 000169
https://us02web.zoom.us/j/83856098726?pwd=WEI3K1BPRCswSk0ZYSs4VUw1OU5ydz09
 
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
 
Guide for participating in court proceeding via Zoom D18
 
-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-To assist the court reporter please state your name before each time you talk.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
 
 
 

 

 

 

  
 
TRUSTS
 
1.
SPR084359: Norcia Family Marital Trust
Petition for Modification
TENTATIVE RULING: This matter is continued to October 9, 2020 at 9:30 a.m. in Department 18 to ensure that meaningful notice is given. This matter was originally set for hearing on April 10, 2020 and was continued to the present hearing date due to the COVID-19 related court closure. The clerk mailed a Notice of Rescheduled Hearing to Petitioner’s attorney on April 14, 2020, but there is no proof of service in the court’s file establishing that Petitioner provided notice of the present hearing date to the people and entities entitled to notice of this Petition. Petitioner is therefore ordered to provide at least 30 days’ notice of the continued hearing date, and to file the proof of service no later than five (5) court days before the continued hearing date.
 
If Petitioner in fact provided notice of the present hearing date to all parties entitled to notice (Pet. ¶ 13), or if all interested parties waive notice, Petitioner can avoid the continuance and obtain an order granting the Petition in part at the present hearing date (assuming no objection is made at the hearing) by calling to indicate that an appearance will be made in response to this tentative ruling and by filing the proof of service or waivers of notice by all interested parties in advance of the hearing.
 
Even if notice is perfected or waived, and there is no objection, the Court will not grant the portion of the relief requested to modify the Trust to name Melissa Ochoa successor trustee in the event Petitioner resigns or ceases to act as trustee. See Pet. ¶ 17; [proposed] order ¶ 3. Modifying the Trust to name a successor trustee not named by the settlors is not justified by Prob. Code §§ 15403 or 15409. Further, doing so does not give precedence to the wishes of the settlors as expressed in the trust instrument as required by Prob. Code § 15660(b), and it undermines the bond requirements of Prob. Code §§ 15602(a)(3) and 15602(b). If and when there is a vacancy in the role of trustee, upon petition by a proper party, it will be filled in accordance with Prob. Code § 15660.
 
 
2.
SPR091647: Trust of Shropshire
Petition for Second and Final Trust Accounts
TENTATIVE RULING: This matter is continued to October 16, 2020 at 9:30 a.m. in Department 18. The petition to approve the Second and Final Trust Accounts has not been reviewed by the Court. Probate Code § 17202 states: "The court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trusteee or beneficiary." Probate Code § 17209 provides: “The administration of trusts is intended to proceed expeditiously and free of judicial intervention, subject to the jurisdiction of the court.” Attorney for the petitioner is to submit further information to the court no later than 10 court days prior to the continued hearing as to why the court should not dismiss the petition or send the account to a special master for review, at a cost borne to the trust. The matter is also continued to provide the Trustee with an opportunity to provide meaningful notice. This matter was originally set for hearing on April 10, 2020 and was continued to the present hearing date due to the COVID-19 related court closure. The clerk mailed a Notice of Rescheduled Hearing to Petitioner’s attorney and another attorney on April 14, 2020, but there is no proof of service in the court’s file establishing that Petitioner provided notice of the present hearing date to the people entitled to notice of this Petition. Petitioner is therefore ordered to provide at least 30 days’ notice of the continued hearing date, and to file the proof of service no later than five (5) court days before the continued hearing date.
 
 
 
3.
SPR093121: Trust of John T. Neville & Ruth Neville 
Petition to Remove Trustee & Appoint Successor and Compel Accounting
TENTATIVE RULING: The Court is in receipt of Petitioner’s Statements of Issues filed on April 15, 2020 and June 19, 2020. The Court appreciates Petitioner’s summary of the outstanding issues and questioned expenditures and his view of the path toward resolution, as well the parties’ willingness to proceed with a settlement conference. Counsel for Respondent failed, once again, to file the Statement of Issues ordered by the Court and is advised that next time he fails to file the required statement of issues he will be ordered to show cause why sanctions should not be issued.
 
In accordance with Petitioner’s request for a short continuance, this matter will be continued to September 4, 2020, at 9:30 a.m. in Department 18 to provide more time for Petitioner to receive the records he requested from Respondent and for the parties to attend the agreed-upon settlement conference. 
 
 
4.
SPR094124: The Trombetta Family Revocable 1999 Trust
Petition for Removal of Co-Trustee and Appointment of Successor Co-Trustees
TENTATIVE RULING: This matter is continued to October 9, 2020 at 9:30 a.m. in Department 18 to ensure that meaningful notice is given. This matter was originally set for hearing on April 10, 2020 and was continued to the present hearing date due to the COVID-19 related court closure. The clerk mailed a Notice of Rescheduled Hearing to Petitioner’s attorney, but there is no proof of service in the court’s file establishing that Petitioner provided notice of the present hearing date to the people entitled to notice of this Petition. Petitioner is therefore ordered to provide at least 30 days’ notice of the continued hearing date, and to file the proof of service no later than five (5) court days before the continued hearing date.
 
If Petitioner in fact provided notice of the present hearing date to all parties entitled to notice (Pet. ¶ 12), or if all interested parties waive notice, Petitioner can avoid the continuance and obtain an order granting the Petition at the present hearing date (assuming no objection is made at the hearing) by calling to indicate that an appearance will be made in response to this tentative ruling and by filing the proof of service or waivers of notice in advance of the hearing.
 
 
5.
SPR094126: In re Barbara J. Yates 2011 Trust 
Petition for Order Determining Questions of Construction of Trust and Instructing Trustee
TENTATIVE RULING: This matter was continued from May 15, 2020. The tentative ruling, which was adopted without objection, continued the matter to the present hearing date to ensure meaningful notice, and ordered Petitioner to provide notice of the continued hearing date and to file the proof of service no later than five court days before the continued hearing date, i.e. by June 19, 2020. As of mid-day on June 24, 2020, the docket does not reflect that Petitioner has filed a new notice of hearing for the present hearing date. The docket only reflects that Petitioner filed a proof of service of the Notice of Remote Hearing on June 15. Although the Notice of Remote Hearing has the present hearing date on it, it was not served on all parties entitled to notice 30 days prior to the present hearing date (as indeed, it was not even sent to Petitioner until June 10). As such, it cannot satisfy the notice of hearing requirements of Prob. Code § 17203.
 
This matter will be continued one final time to October 16, 2020 at 9:30 a.m. in Department 18. Petitioner is ordered to provide at least 30 days’ notice of the continued hearing date to all parties entitled to notice, and to file the proof of service no later than five (5) court days before the continued hearing date. If this is not done, the matter may be dismissed at the next hearing date.
 
If Petitioner in fact provided notice of the present hearing date to all individuals and entities entitled to notice, or if all interested parties waive notice, Petitioner can avoid the continuance and obtain an order granting the Petition at the present hearing date (assuming no objection is made at the hearing) by calling to indicate that an appearance will be made in response to this tentative ruling and by filing the proof of service or waivers of notice by all interested persons in advance of the hearing.
 
 
6.
SPR094133: Kyle T. Skov Revocable Trust
 
Petition for Order Confirming Trust Assets
TENTATIVE RULING: The hearing on this matter is continued to September 4, 2020 at 9:30 a.m. in Department 18 to provide Petitioners with the opportunity to supplement the Petition with evidence that settlor/decedent Kyle T. Skov intended that the subject accounts be an asset of the Kyle T. Skov Revocable Trust and/or that the “proceeds [or] undistributed income” from the real property located at 2054 Falcon Ridge Drive, Petaluma (an asset of the Trust sold shortly before his death) or the Morgan Stanley account (an asset of the Trust which was closed) were deposited into one or more of the subject accounts. The pour-over will (Pet. Ex. B) is insufficient in and of itself to establish the settlor’s intention that the subject accounts be an asset of the Trust during his lifetime, as opposed to his intention that the residue of his estate be transferred into the Trust (and distributed accordingly) upon his death. In the absence of the subject accounts being named on schedule A, or a general assignment of personal property, Petitioner will need to provide more specific information regarding the above-referenced tracing or regarding his personal knowledge of the settlor’s intentions to transfer the subject accounts into the Trust. The Supplement shall also state whether any of the subject accounts are IRA accounts.
 
 
7.
SPR094148: Robert and Joyce Theiller Revocable Trust
Petition for Order Terminating Irrevocable Trust
TENTATIVE RULING: This petition to terminate the subtrust for the benefit of Randall and the subtrust for the benefit of Rourke created under the Robert and Joyce Theiller Revocable Trust, brought pursuant to Prob. Code § 15403, is DENIED.
 
Preliminarily, although each of the vested beneficiaries consent, Prob. Code § 15403 requires consent by “all” beneficiaries. A beneficiary is defined as “a person who has any present or future interest, vested or contingent.” Prob. Code § 24. No consent was filed on behalf of the unborn or unascertained beneficiaries of the Trust, namely Rourke’s issue (including unborn issue), because no guardian ad litem was sought or appointed for that purpose.
 
But the Petition would be denied in any event. Prob. Code § 15403(b) provides that if the continuance of the trust is necessary to carry out a material purpose of the trust, it cannot be modified or terminated “unless the court, in its discretion, determines that the reason for doing so under the circumstances outweighs the interest in accomplishing a material purpose of the trust.” It further provides that if the trust is subject to a valid restraint on the transfer of a beneficiary’s interest, “the trust may not be terminated unless the court determines there is good cause to do so.”
 
Sections 6.4 and 6.6 of the Trust direct Randall’s and Rourke’s distributions to trusts for their benefit, with distributions for their “health, education, support, and maintenance” to be made at the trustee’s discretion, with the undistributed income and principal distributed to them when they reach the ages of 62 and 30, respectively. The fact that each is a competent adult (Pet. ¶ 9) who wants access to the funds now (Pet. ¶ 7) does not mean that administration of the Trust as directed by the settlors is not necessary to carry out a material purpose of the Trust. The Court can infer from the subtrust provisions themselves—including the fact that Randall, Rourke, and any of their spouses or children are specifically prohibited from serving as trustees of these subtrusts—that it is a material purpose of the Trust that the trustees named in the Trust (and not the beneficiaries) be the ones vested with the discretion over the management and distribution of the subtrust assets until the beneficiaries reach the ages specified in the Trust. Moreover, the Trust has a spendthrift clause (§ 6.7) which Petitioners do not address, that further militates against the Court exercising its discretion to eliminate the subtrusts created by the settlors. That there is some cost necessarily associated with administering the subtrusts (Pet. ¶ 10) does not outweigh the interest in administering the Trust as written. In sum, there are no circumstances shown which would justify deviating from the settlors’ wishes as set forth in the Trust.
 
 
8.
SPR094230: In re Robyn E. Anderson Trust 
Petition for Order Confirming Trust Assets
TENTATIVE RULING: This matter is continued one final time to October 23, 2020 at 9:30 a.m. in Department 18 so Petitioner can give the requisite 30 days’ notice of the Petition before the continued hearing date. The Notice of Hearing for the present hearing date was not mailed until June 4, 2020, which was only 22 days prior to the hearing date. See Prob. Code §§ 851(a) (“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…”) 851(d) (“The court may not shorten the time for giving the notice of hearing under this section.”).
 
 
9.
SPR094250: In re The Cheslie E. Donahue Revocable
Petition to Confirm Trust Assets
TENTATIVE RULING: Approved. However, Petitioner must lodge another new [proposed] order which attaches the referenced Exhibit A.
 
 
 
 
 
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