Aug 07, 2022
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PROBATE TRUSTS CALENDAR – TENTATIVE RULINGS 

Friday, August 5, 2022 at 9:30 a.m. VIA ZOOM and IN COURT

Honorable Lawrence E. Ornell  

Courtroom 23

 

PLEASE NOTE:  Masks need not be worn in the courthouse if you are fully vaccinated.

Persons are considered vaccinated two weeks after the final dose in a primary series of vaccinations.

All unvaccinated persons entering any Sonoma County Superior Courthouse, including any remote jury selection location, shall wear a face covering at all times compliant with all California State Health Orders and CAL/OSHA standards which must completely cover both the nose and mouth. 

 

Court Call is not permitted for this calendar.

 

If the tentative ruling does not require appearances, and is accepted, no appearance is necessary.   

Any party who wishes to be heard in response or opposition to the Court’s tentative ruling MUST NOTIFY the Court’s Judicial Assistant by telephone at (707) 521-6893 and MUST NOTIFY all other parties of the intent to appear, and whether they will appear in person or by Zoom.  Both notifications must be completed no later than 4:00 p.m. on the court (business) day immediately before the day of the hearing.

Unless notification of an appearance has been given as provided above, the tentative ruling shall become the ruling of the court the day of the hearing at the beginning of the calendar, absent an objection from an interested party per Probate Code section 1043.     

TO JOIN PROCEEDINGS VIA ZOOM ONLINE:

Use a web browser of your choice and navigate to the following URL/web address on the World Wide Web: https://zoom.us/join

When prompted, enter the following information:

 

Meeting ID: 854-4114-2253

Password: 611386

 

TO JOIN PROCEEDINGS VIA ZOOM BY PHONE:


Call 1-669-900-6833 (San Jose) and enter same meeting ID and password as listed above.

 


 

 

Guide for participating in court proceedings via Zoom for Department 23.

 

  • 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.

 

  • 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.

 

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1.    In re the Matter of Michael Gyapjas Trust, SPR093493  
 
Tentative Ruling: NO APPEARANCE REQUIRED. In the absence of objections or opposition, the Petition filed on June 16, 2022, is APPROVED with the amount of relief (surcharge) to be determined according to proof to be provided after the subject real property is sold. 
 


 
2.    In re the Matter of the Nancy A. Barr Revocable Trust of 2015, SPR094779
 
Tentative Ruling: NO APPEARANCES REQUIRED. This matter is CONTINUED for Case Management Conference at 3:00 p.m. on October 13, 2022, in Department 23, for an update as to the status of settlement efforts. If a Notice of Settlement has been filed, appearances will be waived.
 


 
3.    In re the Matter of the 2010 Randall C. Fowler and Jomar Katherine Lococo Rev. Trust Dated June 28, 2010, SPR096229
 
Tentative Ruling:  NO APPEARANCES REQUIRED. Notice of Settlement was filed on July 28, 2022. This matter is CONTINUED for Case Management Conference at 3:00 p.m. on October 13, 2022, in Department 23. If the matter has been dismissed, the hearing will be dropped from the Court’s calendar.
 


 
4.    In re the Matter of the Robert G. Wahl Trust, SPR096435
 
Tentative Ruling: NO APPEARANCES REQUIRED.   This matter is CONTINUED for Case Management Conference to 3:00 p.m. on December 22, 2022, in Department 23. 
 
Inasmuch as this is a contested matter, pursuant to Local Rule 6.2.G.2., the parties are ordered to meet and confer and make a good faith attempt to informally resolve the controversy at a face-to-face conference (which is deemed to include video platforms such as Zoom), if possible, otherwise by telephone conference. If the matter has not resolved, the parties shall each file Statements of Issues no later than seven (7) court days before the Case Management Conference. (Local Rule 6.2 G.3.) 
 


 
5.    In re the Matter of the Linda Allen Trust, SPR096474
 
Tentative Ruling: The Petition filed on March 23, 2022, is DENIED. 
 
The Franklin Templeton account is not described in the trust or any funding document, nor was it added to the trust, taking the matter outside the reach of Estate of Heggstad and its progeny. A proper Heggstad petition is one where the property is identified in the trust itself or a funding schedule attached to the trust instrument but a formal transfer or conveyance was not made. 
 
Under Probate Code section 850(a)(3)(B), a trustee may petition the Court for an order where the trustee has a claim to real or personal property, title to or possession of which is held by another. In Estate of Heggstad (1993) 16 Cal.App.4th 943, the settlor stated in writing that real property was transferred to himself as trustee, but he never signed a deed. A petitioner sought an order declaring that certain of the Settlor’s real property was property of the Trust. The trial court’s order finding the property to be part of the Trust was affirmed on appeal. The Heggstad Court found that the language whereby the Settlor stated the property was being transferred to himself as trustee was sufficient to create a trust in the subject property, and that the fact that settlor had not actually executed a grant deed transferring the property to himself as trustee did not require a different result. 
 
In Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156, the trust instrument did not describe the parcels by reference to any specific identifying information unique to the property (such as address or legal description) but did generally state that the settlor assigned the ownership of all his real (and personal) property to the trustees of the Trust effective immediately. The co-trustee appealed from an order denying his petition to confirm that two parcels of real property were part of the trust’s assets. The Ukkestad court reversed the trial court’s order, holding that the statement in the trust instrument that the settlor was conveying “all of his real and personal property” to the trustee, “wherever situated,” was sufficient evidence of an intent to transfer the property (which was owned at the time the Trust was created) to the Trust. 
 
The rule to be taken from the Heggstad and Ukkestad cases is that, if there is some language in a trust document instrument itself (or perhaps other documents created at the time the trust was created) indicating an intent by the settlor to convey the property to the trust, this is sufficient for purposes of finding that the property was transferred to the trust. In all cases, the property was funded during settlor's lifetime — the act of including it in the trust, or making some other requisite declarative funding action is required. 
 
In Kucker v. Kucker (2011) 192 Cal.App.4th 190, the court held that a settlor's pour-over will and general assignment of all personal property to her trust are effective to transfer corporate stock to the trust.  (Prob. Code § 850 petition not barred by statute of frauds under Civ. Code § 1624.) Again, there must be some declaration by the settlor trust instrument. 
 
Here there is neither a general assignment nor a pour-over will. The trust instrument references only $100 being transferred to the trustee. Any asset (including the Franklin Templeton account) could have been added to the trust estate pursuant to the following language found in Article 1 Subsection C: 
 
Additional property may be added . . . at any time by the Trustor . . . Such additions . . . may be, but need not be, evidenced by amendment to this agreement or by schedule, deed, assignment, or other writings transferring property to the Trustee. All such original and additional property is referred to herein collectively as the trust estate and shall be held, managed and distributed as herein provided.
 
However, by the Petitioner’s own attestation, the Franklin Templeton account was not added to the estate; rather, the Settlor intended to add it but never did because of her incapacity. (See Pet. ¶ 13.) 
 
It is perhaps unfortunate the Settlor did not complete the funding process. Nevertheless, a petition under Prob. Code § 850 cannot be used to transfer a non-trust asset into a trust simply because it would be more expedient to deem the account an asset of the Trust than to pass it to the rightful beneficiaries through probate.
 
The Court also notes that service has not been made on the holder of the account. According to the allegations of the Petition, Franklin Templeton is in possession of the property which is the subject of this petition. According to Petitioner’s proofs of service, Franklin Templeton was served by mail. Prob. Code § 851(a), provides that Petitioner must serve any person or entity in possession of the subject property in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, namely the method by which a summons is served.  Ordinarily, service of summons is made within California or in another state by personal service (CCP § 415.10), substituted service (CCP § 415.20), or service by mail and acknowledgment of receipt (CCP § 415.30). Petitioner has not utilized one of these methods with regard to the financial institutions in possession of the subject accounts.
 


 
6.    In re the Matter of the Jeffrey Kellogg and Lisa L. Kellogg Living Trust, SPR096505
 
Tentative Ruling: NO APPEARANCE REQUIRED. In the absence of objections or opposition, the Petition filed on April 4, 2022, is APPROVED. The Court will sign the proposed order submitted with the Petition.
 


 
7.    In re the Matter of the Joseph E. Paul and Elizabeth A. Paul Trust, SPR096508
 
Tentative Ruling:  NO APPEARANCES REQUIRED. In the absence of objections or opposition, the First Account and Report is APPROVED. The Court will prepare and sign an order to that effect.
 


 
8.    In re the Matter of the Charles E. Prielipp and Helen M. Prielipp Trust, SPR096680
 
Tentative Ruling: The Petition filed on May 26, 2022, is DENIED. 
 
The Exchange Bank account which is the subject of this proceeding is not described in the Surviving Spouse Trust, nor is it referenced in any amendment thereto, and it was never added to the Surviving Spouse Trust. These facts take this matter outside the reach of Estate of Heggstad and its progeny. A proper Heggstad petition is one where the property is identified in one or more of operative trust instruments or a funding schedule attached to them but was never formally conveyed to the Trust. 
 
Under Probate Code section 850(a)(3)(B), a trustee may petition the Court for an order where the trustee has a claim to real or personal property, title to or possession of which is held by another. In Estate of Heggstad (1993) 16 Cal.App.4th 943, the settlor stated in writing that real property was transferred to himself as trustee but he never signed a deed of conveyance. A petitioner sought an order declaring that real property was property of the Trust, despite the absence of a deed of conveyance. The trial court’s order finding the property to be part of the Trust was affirmed on appeal. The Heggstad Court found that the language whereby the Settlor stated the property was being transferred to himself as trustee was sufficient to create a trust in the subject property, and that the fact that settlor had not actually executed a grant deed transferring the property to himself as trustee did not require a different result. 
 
In Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156, the trust instrument did not describe the parcels by reference to any specific identifying information unique to the property (such as address or legal description) but did generally state that the settlor assigned the ownership of all his real (and personal) property to the trustees of the Trust effective immediately. The co-trustee appealed from an order denying his petition to confirm that two parcels of real property were part of the trust’s assets. The Ukkestad court reversed the trial court’s order, holding that the statement in the trust instrument that the settlor was conveying “all of his real and personal property” to the trustee, “wherever situated,” was sufficient evidence of an intent to transfer the property (which was owned at the time the Trust was created) to the Trust. 
 
The rule to be taken from the Heggstad and Ukkestad cases is that, if there is some language in a trust document instrument itself (or perhaps other documents created at the time the trust was created) indicating an intent by the settlor to convey the property to the trust, this is sufficient for purposes of finding that the property was transferred to the trust. In all cases, the property was funded during settlor's lifetime — the act of including it in the trust, or making some other requisite declarative funding action is required. 
 
In Kucker v. Kucker (2011) 192 Cal.App.4th 190, the court held that a settlor's pour-over will and general assignment of all personal property to her trust are effective to transfer corporate stock to the trust.  But, again, there must be some declaration by the settlor in one or more of the trust instruments. 
 
Here there is nothing tantamount to funding the trust with the Exchange Bank account. The Settlor’s equitable interest in the Exchange Bank account could have been added to the trust estate, particularly by way of her August 5, 2020, Second Amendment which was executed after she acquired her equitable interest in the Exchange Bank account. Indeed, execution of the Second Amendment would have been the opportune moment for the Settlor to fund her trust with her equitable interest in the account. Alas, she did not provide for the inclusion of the account.
 
It is perhaps unfortunate the Settlor did not elect to fund the trust with the Exchange Bank account. Nevertheless, a petition under Prob. Code § 850 cannot be used to transfer a non-trust asset into a trust simply because it would be more expedient to deem the account an asset of the Trust than to pass it to the rightful beneficiaries through probate.
 
The Court also notes that service has not been made on the holder of the account. According to the allegations of the Petition, Exchange Bank is in possession of the property which is the subject of this petition. According to Petitioner’s proofs of service, Exchange Bank has not been served with notice. Prob. Code § 851(a), provides that Petitioner must serve any person or entity in possession of the subject property in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, namely the method by which a summons is served.  Ordinarily, service of summons is made within California or in another state by personal service (CCP § 415.10), substituted service (CCP § 415.20), or service by mail and acknowledgment of receipt (CCP § 415.30). Petitioner has not utilized one of these methods with regard to the financial institutions in possession of the subject accounts.
 
Because the Court is denying the Petition, it need not address the second part regarding Petitioner’s proposed method of distributing proceeds of the Exchange Bank account.
 
 


 
9.     In re the Matter of the Randall Trefethen Trust, SPR096689
 
Tentative Ruling: APPEARANCE REQUIRED. In the absence of objections or opposition, the Petition filed on May 31, 2022, will be approved except as provided otherwise below:
 
·         The successor trustee will be required to post a bond in an amount sufficient to secure performance of her duties as trustee. Prob. Code § 15602(a)(3) provides that a trustee who is not named as a trustee in the trust instrument shall be required to post a bond. Further, subsection (b) of the statute provides that the Court may not excuse the requirement of a bond for such a person “except under compelling circumstances,” which includes a request by all adult beneficiaries that bond be waived. Thus, in the absence of waivers by the adult beneficiary, the successor trustee will be required to post a bond in an amount sufficient to secure performance of the trustee’s duties. Counsel should be prepared to advise the Court as to the estimated value of the estate so an appropriate bond amount can be included in the Order.
 
·         Petitioners must, at or before the hearing, file an Amended Petition signed by their attorney of record. Theirs is not signed by their attorney. Under Code of Civ. Proc. § 128.7, every pleading, petition, written notice of motion, or similar paper must be signed by at least one attorney of record in the attorney's individual name, or by the party if he or she is unrepresented, and state the signer's address and telephone number, if any. An unsigned paper must be stricken unless the omission is corrected promptly after being called to the attention of the attorney or the party. [CCP § 128.7(a)] 
 
If the Court is satisfied as to the foregoing issues, and if there are no objections or opposition, the Court will approve the petition and sign a modified version of the proposed order submitted therewith.
 


 
10.  In re the Matter of the 1994 Schuster Family Trust, SPR096691
 
Tentative Ruling: NO APPEARANCE REQUIRED. In the absence of objections or opposition, the Petition filed on June 2, 2022, is APPROVED. The Court will sign the proposed order submitted with the Petition.
 


 
 
End of Tentative Rulings
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