Trusts

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. You must inform the clerk concerning your appearance choice: Zoom or in person. 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 Department 23 “Zoom” Online

• Navigate to website: https://sonomacourt-org.zoomgov.com/j/1608254529
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To Join Department 23 “Zoom” By Phone:

• Call: +1 669 254 5252 US (San Jose) and enter same meeting ID and password as listed above.

Guide for Participating in Court Proceedings via Zoom for Dept 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.

1. Matter of the Nahmens Family 1993 Trust
   24PR00264
   Petition for Immediate Suspension of Trustee, for Removal of Trustee; for Accounting and Surcharge; and for Immediate Distribution to Beneficiary

Tentative Ruling: APPEARANCES REQUIRED.  It is unclear to the Court why the current co-trustee has not distributed funds that appear necessary for the support of the petitioner to her.  Just two years ago, co-trustee stated under penalty of perjury to this Court, “In addition, approximately $772,732.00 of Marital Trust principal balance is available to Jan Nahmens if she needs it for additional support. There are sufficient assets in the two trusts to support Jan Nahmens for the rest of her life, …”  (See Declaration of Anson H. Crutcher, Jr., Exh. B to Petition for Modification of Trust, SPR096585.)     

On the request to suspend the co-trustee immediately, the Court observes that the settlor’s spouse (“Janet”,) who is entitled to all income from both the marital trust and residual trust while she lives, and who is entitled to the principal of the marital trust to the extent necessary for her health, maintenance, and support in accordance with her accustomed standard of living (Trust Art. III(B)(3)(b) at Pet. p. 46/63) is in need of in-home care, and has other immediate needs, yet it appears the trustee is refusing to provide for (or adequately provide for) them.  As it appears to the Court that the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee (i.e. the spouse’s right to support from the trust may continue to be delayed or refused, resulting in negative consequences to her), suspension is appropriate. Prob C §15642(e).  As Janet has a right to financial support from the trust to the extent necessary for her health, maintenance, and support in accordance with her accustomed standard of living, if the trustee is refusing to provide, or adequately provide, such support, Janet’s interest in such support is being lost or injured. Again, suspension is appropriate to the extent there is a chance such loss or injury will continue while this matter is pending.  As to the respondent’s suggestion that non-liquid equity in the beneficiary’s house justifies declining her support with liquid trust funds existing specifically for that purpose, the Court finds the suggestion evidences some hostility toward the beneficiary and is not a realistic or appropriate proposition.  That said, the Court appreciates that the settlor nominated and trusted respondent to perform the duties of co-trustee, along with his wife, and so wishes to allow the parties an opportunity to argue this question prior to the Court deciding what action is appropriate.

Regardless of whether the Court does or does not suspend the trustee at the conclusion of the hearing, the Court will grant the request for an immediate distribution to Janet (or her designated Power of Attorney Agent) of $100,000 as soon as reasonably practicable, but no later than 30 days from the date of the hearing.  The Court notes that the objection did not address this request, or otherwise state it was not possible.

The request for an accounting is GRANTED.  A code-compliant accounting shall be produced to the Petitioner within the next 60 days (unless the parties stipulate in writing to something less formal). 

On the question of the requirement for two co-trustees, the Court notes the following.  By her own assertion at paragraph 6 of the petition, Janet Nahmens has ceased to act as co-trustee. Per Article VI(A) of the trust, as amended by the second amendment, William Lippert shall serve as successor co-trustee if either Janet Nahmens or Anson Crutcher cease to serve as co-trustee. The representation contained in Exhibit B to the petition that William Lippert was “removed in the 3^rd Amendment” is inaccurate. The third amendment to the trust presented at Exhibit A to the petition does not remove William Lippert as successor co-trustee. Also, no prior order of this court renders Anson Crutcher sole trustee. The trust also expressly requires two co-trustees. Therefore, as the rightful successor co-trustee, William Lippert is entitled to notice of this proceeding pursuant to California Probate Code §17203(a)(1). To the extent William Lippert cannot be found, this court will require compliance with California Rules of Court Rule 7.52 before deciding how William Lippert should be served or whether to dispense with notice to him.  

Unless ordered otherwise at the hearing, the balance of the petition is CONTINUED to October 11, 2024, at 9:30 a.m. in Dept. 23.  Petitioner is required to serve the rightful successor co-trustee, William Lippert, or provide a supplement addressing why this is a futile act.

As this is a contested matter, the parties are ordered to meet and confer in compliance with local rule 6.2.F.2 and file statements of issues in compliance with local rule 6.2.F.3 at least seven (7) court days in advance of any continued hearing date.

Anne N. Dennis, Esq. is directed to submit an updated proposed order that conforms to this ruling as well as any other orders made at the hearing.

2. Matter of the Frank P. Silvestri Living Trust, dated March 21, 2022
   24PR00271
   Petition for Order Confirming Trust Assets

Tentative Ruling: The petition is GRANTED. The Court will sign the proposed order lodged March 21, 2024.

3. Matter of Lindsay Ross SNT
   SPR84034
   First Account and Report of Conservator; Petition for Allowance of Fees to Trustee

Tentative Ruling: This matter is CONTINUED to October 18, 2024, at 9:30 a.m. in Department 23 for the reasons set forth below.

The proof of service of the amended petition shows service as of June 21, 2024. This is not timely per California Probate Code §17203. Also, there is no new Notice of Hearing as required by California Rules of Court Rule 7.53(a). The petitioner is ordered to timely serve code-compliant notice of the continued hearing upon all necessary parties.

Per page 10 of the trust instrument, the trustee is required to file accountings and reports to the court in the manner and frequency required by California Probate Code §§1060-1064 and §§2620-2628. Pursuant to California Probate Code §2620(c)(1), this accounting must be supported by account statements showing the account balance as of the closing date of the first accounting. No confidential financial statements have been lodged. The petitioner is ordered to cure this defect by lodging the supporting confidential financial statements at least seven (7) court days in advance of the continued hearing date.

The petition does not contain an allegation that addresses the requirements of California Probate Code §1064(a)(5). The petitioner should serve and file a verified supplement that addresses California Probate Code §1064(a)(5) at least seven (7) court days in advance of the continued hearing date.

The Probate Court’s review of this Special Needs Trust DOES NOT Guarantee Medi-Cal Eligibility or any other Public Benefits provided by any governmental entity. The Probate Court DOES NOT guarantee that all Federal and State requirements have been met.

4. Matter of the Constance Leola McAthie Kerbow Living Trust dated June 23, 1995, as Amended and Restated
   SPR097516
   Petition to Compel Accounting by Attorney-in-Fact and for Attorney Fees (Probate Code sections 4541, 4545)

Tentative Ruling: APPEARANCES REQUIRED. It is not clear to the Court whether there are any remaining contested issues regarding this petition. Per the Amended Petition for Orders Establishing Trust’s Claim of Ownership to Property Taken in Bad Faith, etc. filed by Dawn Kerbow on February 23, 2024, Beverly Kerbow produced an Attorney-In-Fact accounting to Dawn Kerbow on September 28, 2023. Pursuant to California Probate Code §4541(c), the Court finds that Dawn Kerbow is the person entitled to the accounting here.

The Court requires appearances to allow the parties an opportunity to address their positions regarding whether any remaining contested issues remain or whether this petition has been resolved. 

5. Matter of the Constance Leola McAthie Kerbow Living Trust dated June 23, 1995, as Amended and Restated
   SPR097516
   Amended Petition for Orders Establishing Trust’s Claim of Ownership to Property Taken in Bad Faith, Directing its Return, and for General and Punitive Damages under Probate Code Section 859

Tentative Ruling: APPEARANCES REQUIRED. The Court intends to set a trial on the following issues: (1) whether Beverly Kerbow wrongfully took trust assets in bad faith that should now be returned to the trust, (2) whether Beverly Kerbow, while acting as DPOA for Constance Kerbow, breached fiduciary duties owed to Constance Kerbow, and (3) damages. The Court’s view is that these matters should be set for trial after the validity of the 2019 trust amendment is tried, however it invites input from counsel on the question.  All counsel should be prepared to discuss trial availability and estimates for length of trial.

6. Matter of the Norman A. Stuart, Jr. and Linda E. Stuart 2000 Trust dated February 1, 2000, as Amended and Restated
   SPR097912
   Respondent’s Counter-Petition For Orders For: (1) Removal Of Trustee; (2) Enjoining Trustee From Selling Trust Property And Carrying Out Eviction Proceedings; And (3) Suspension Of Trustees Powers Pending Outcome Of Counter-Petition

Tentative Ruling: The opposition filed June 24, 2024, is not properly verified as required by California Probate Code §1021(a)(2). The jurat does not state it is “under penalty of perjury.” See California Code of Civil Procedure §2015.5. Substantial compliance with the statute is insufficient.  See Kulshrestha v. First Union Commercial Corp., (2004) 33 Cal.4th 601. If Richard Stuart wishes to proceed with contesting the petition, he must serve and file an objection that is properly verified and otherwise code-compliant on or before July 15, 2024, or all objections/responses will be deemed WAIVED. California Rules of Court Rule 7.801.

The request to enjoin Richard Stuart from selling the Merner Drive property pending the outcome of this case is DENIED. The request to enjoin the unlawful detainer proceedings is DENIED.  The request to immediately suspend Richard Stuart as trustee is DENIED. 

This Petition is set for trial on October 4, 2024, at 8:30 a.m. in Department 23 to be heard concurrently with Richard Stuart’s July 25, 2023, petition.  The procedural objection of Richard Stuart based on untimeliness is overruled.  No new trial order will issue, however, the parties shall comply with the trial order filed January 3, 2024, for both contested petitions.

This ruling has no impact on the unlawful detainer action or any agreement to vacate the Merner Drive property between the parties, which remains valid and enforceable.

The parties are directed to continue their meet and confer efforts on all contested issues.

The Court directs Petitioner Bruce Stuart’s counsel’s attention to Sonoma County Local Rule 6.8.A, which requires all petitions filed pursuant to Division 9 of the Probate Code to include a copy of the entire trust instrument(s) relevant to the action, etc. While the Court has referred to a copy of the trust it located in its file, Counsel should ensure that all future filings comply with this rule.

***End of Tentative Rulings***