Malicious Prosecution of a Probate Action

Usually when a party loses a case, they do not compound their loss by continuing to litigate. In other words, "if you find yourself in a hole, stop digging." Alas one litigant in a recent unpublished appellate option did not heed this adage.

"This case stems from a family dispute over the probate of the estate of Mohammed Hussain (decedent). After decedent passed away, one of his sons, Asif "Robert" Hussain (Asif) took a document purporting to be decedent's will and instructed one of his friends to sign and backdate the witness attestation clause so he could probate the will. The will named Asif the executor of decedent's estate and distributed most of the estate to Asif. Decedent's other heirs contested Asif's petition to probate the will. Asif subsequently conceded that the will was invalid and abandoned his probate petition.  

Decedent's other heirs then filed suit against Asif for malicious prosecution of the probate action. In response, Asif filed a special motion to strike the malicious prosecution claim under our anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court denied the motion. Asif now appeals, arguing the plaintiffs failed to provide sufficient evidence that he acted without probable cause and with malice in filing the probate petition. We disagree and affirm the trial court's ruling." 

The declaration submitted by the aggrieved litigant:

"Asif submitted a declaration in support of his motion attesting to the following facts. In 2022, decedent told Asif that he intended to distribute his home in Granada Hills to Asif and Seletskiy, with 60 percent going to Asif and the remainder to Seletskiy. Decedent also indicated that he prepared a will and instructed Asif to sign it. In December 2022, decedent gave Asif the combination to a safe and told him to retrieve the documents stored there in the event of his death. After decedent's passing, Asif opened the safe and retrieved a will. He then took that will to a non-attorney "probate specialist," Cheryl Templeton (Templeton). Templeton told him that "in order to submit the [w]ill to [p]robate it needed to be fully signed and dated by two witnesses who knew [decedent]."  

Having been told that the will was defective because it was not signed by two witnesses, Asif concluded that "all [he] needed to do to submit the [w]ill to [p]robate was to get another signature on the [w]ill from a person who knew [decedent]." He went to Gorgone and asked her to sign the witness attestation clause and backdate her signature to July 2022. He then took the signed will to a probate attorney and directed his new counsel to file the probate petition. At some unspecified time after filing the petition, Asif "became aware" that Gorgone's signature was invalid because she did not witness decedent sign the will as she had attested to. Once he learned this information, he instructed his counsel to dismiss the probate petition. Asif claims he did not intend to deceive any of the plaintiffs and would not have submitted the will to probate court if he had known that Gorgone's signature was defective."

Hussain et al. v. Hussain et al., Los Angeles County Superior Court case no. 24VECV04712.

Reasonable Reimbursement

Clients typically ask what is considered "reasonable" when determining what actions they should take as the personal representative of an estate. As a fiduciary, they are required to exercise good judgment when administering the estate, i.e. act reasonably. For example, a personal representative might ask if they can sell the family home to a friend for a below-market price (no), should they hire a realtor to sell the family home (yes), should they list the home on MLS (yes), should they address the code violations on the property (yes), should they hire an unlicensed contractor to do extensive repairs (no), should they take items from the home and not tell anyone (no),  etc.

A recent unpublished appellate decision addressed the issue of reimbursement for a storage unit.

"Accordingly, Suzanne's rental of a unit to store personal property of the estate for distribution is an allowable administrative expense if reasonable and necessary. Here, however, the court found Suzanne's expenditure of more than $27,000 to store personal property valued at only $1,000 was "unreasonable and excessive." We don't disagree. As the court noted, the estate already had paid just over $33,000 to store that property—$15,725.49 that Suzanne paid from the estate between November 2013 and December 2014, and $17,276 the court apparently already had authorized for the estate to reimburse Suzanne." 

"It is not our place to resolve these evidentiary conflicts. Moreover, our record is incomplete. The trial court, on the other hand, had "reviewed this file in detail." The court stated, "In fact, I've spent many hours, even though I have a very busy calendar, spent many hours because I really want to understand what's going on. . . . [¶] I've read everything that's been filed more than once." The court also asked the parties questions at the hearing. We can infer the trial court found Wayne's explanation of the events more credible than Suzanne's. Accordingly, we conclude Suzanne has failed to meet her burden on appeal to show the court erred in finding payment of storage fees 25 times greater than the value of the stored property was unreasonable, or in implicitly finding the storage of the property for more than five and a half years was unnecessary."

Estate of Anita M. Polinsky, Los Angeles County Superior Court case no. B329372. 

U.S. Residency Requirement for a CA Administrator

If a person passes away without a will in California and a probate is needed to administer their estate, an administrator will need to be appointed by a judge. Typically, the administrator will be a relative of the decedent such as a spouse or child. However, Probate Code §8402(a)(4) requires that this person be a U.S. resident.

A recent published appellate decision addressed the issue of what constitutes U.S. residency for purposes of being an administrator.

Estate of El Wardani, 82 Cal.App.5th 870 (2022) 

"Ramsey Walter El Wardani died intestate in 2016 and was survived by his wife Janine and daughter from a previous marriage, Alexandria (Ali). Four years into a protracted probate dispute between Janine and Ali, the court removed Janine as court-appointed administrator of Ramsey's estate. It deemed her ineligible to serve in that role because it found that she was not a United States (U.S.) resident as required by section 8402, subdivision (a)(4) of the Probate Code"

"In short, as a matter of law, a resident of the U.S. under section 8402, subdivision (a)(4) is a person who actually lives in the U.S. and is not merely present temporarily. U.S. residency is not established by mere connections alone."   

"In her 2021 declaration, Janine asserted that she "frequently come[s] to the United States (252 days in 2019 and 2020)" and noted several contacts and ties in California. She stated that she grew up in California and has family here, holds a California driver's license, voted in San Diego County (including in 2016, 2018, and 2020), maintained medical providers and attorneys in California, and held bank accounts and paid taxes in California. Janine disavowed any intent to become a permanent resident or citizen of Mexico, explaining that she stayed in Mexico on a tourist visa and did not speak fluent Spanish. Yet in that same declaration, Janine confirmed that she still owned a home in Mexico. The only reason she stayed there was because "[she] own[ed] a house there, free and clear, where [she could] live inexpensively." She claimed her plan was to "sell [the] home in Mexico and return to live permanently in the United States" after the probate case was over."

"At best, while Janine had many contacts with the U.S. and visited frequently, there was no evidence that she actually lived anywhere but Mexico since moving there in 2014. Her bank accounts, doctors, and family gave her several reasons to visit California, but those visits did not establish residency on their own. Janine was not a person who lived in California and temporarily found herself in Mexico, but rather someone who lived in Mexico and made frequent but temporary visits to the U.S. Accordingly, sufficient evidence supports the court's finding that Janine was not a "resident of the United States" as required by section 8402, subdivision (a)(4), and there was no abuse of discretion in ordering her removal as administrator of Ramsey's estate."

Opening a Probate in California

In order to open probate in California, the petitioner will need to file a petition in the appropriate superior court. The petition will allege various details about the decedent. For example, the petition will state when the decedent passed away, the decedent's residence when they passed away, what assets the decedent had, did the decedent have a will or not, which relatives survived the decedent, etc. The allegations found in the petition will be received as evidence if uncontested. Probate Code §1022.

However, if the petition is objected to, then the petition may not be received as evidence. Evangelho v Presoto (1998) 67 CA4th 615, 620. Instead an evidentiary hearing, essentially a trial, is needed to resolve the matter.

A recent unpublished appellate opinion focused on the appointment of a personal representative in what was ostensibly an uncontested matter.

"On August 24, 2021, M. Nicole Fore (Fore) filed a petition for probate for authorization to administer under the Independent Administration of Estates Act (the petition) in connection with Estate of Michael Derik Marxsen (decedent). According to the petition, decedent passed away on August 9, 2021, leaving a will dated August 4, 2021. The petition reflects that Fore was decedent's fiancée, and that appellant Sheryl L. Benevento (Benevento) is decedent's mother. On October 14, 2021, the court approved the petition, appointing Fore as administrator with will annexed and fixing a bond at $110,886. Letters of administration with will annexed were issued the next day.

Benevento's appeal is from the October 14, 2021 order appointing Fore as administrator with will annexed (the Order). Her appellate brief, however, does not identify or directly assert any claim of error by the probate court with respect to the issuance of the Order."

The crux of Ms. Benevento's appeal was that she did not timely file an objection to Ms. Fore's appointment as personal representative. A footnote describes this in detail:

"Under the heading "Statement of the Case" (capitalization omitted), Benevento states in her appellate brief that she and other family members appeared in court on October 14, 2021, "only to find [the case] was removed from the schedule since the presiding judge had made a ruling at 4pm on October 13, 2021." She does not argue in her appellate brief that the court erred in this respect. The record reflects that the court issued a tentative ruling on October 13 granting the petition, it received no objection by 4:00 p.m. that day, and that it therefore adopted the tentative ruling. (See Cal. Rules of Court, rule 3.1308(a)(1) [authorizing superior courts to adopt tentative ruling system under which, if a tentative ruling is posted "by no later than 3:00 p.m. the court day before the scheduled hearing. . . [and i]f the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear"].)"

If Ms. Benevento had timely objected to Ms. Fore's appointment as personal representative, it is almost certain that Ms. Fore would not have been appointed personal representative on October 14, 2021. The reason being is that Ms. Fore's petition would have been contested and thus not be received as evidence per Evangelho. However, since Ms. Benevento did not timely file her objection, the court was obligated to receive Ms. Fore's petition as evidence and appointed Ms. Fore as personal representative on October 14, 2021.

Estate of Michael D. Marxsen, San Benito County Superior Court # PR 210006

Appointing an Administrator

A trust controls trust assets and a will controls probate assets. Consequently, it is very common to write a trust and will simultaneously to ensure that the trust and will work harmoniously post-death. Obviously it would be problematic if the two testamentary instruments conflicted with each other. Still, a trust and will can only work in harmony provided both are duly executed.    

A recent unpublished appellate decision addressed the atypical case of where a decedent writes a trust but never executes a will to accompany it.

In 1990, decedent and his former spouse executed a marital trust and funded it with various properties. In 2017, the parties divorced and a marital settlement agreement was executed. When decedent passed away, "he was neither married nor in a registered domestic partnership, and did not have any children."

Decedent's mother petitioned to be appointed her son's administrator. The trust beneficiaries, decedent's former step-children, objected to this appointment. The trial court found that appointment of decedent's mother as the administrator was merited. 

The Court of Appeal ultimately upheld the appointment because decedent left behind a probate estate and passed away intestate. 

The appellants made an interesting argument regarding what qualifies as a will:

"Appellants have not identified any operable will at the time of decedent's death that would transfer these assets into a trust and out of probate. The record indicates decedent's estate planning attorney prepared a pour-over will in connection with the Trust, but no evidence exists that the will was ever executed. And appellants confirmed no will was located with decedent's belongings. Instead, appellants argue the Bill of Sale executed with the Trust operated as a pour-over will. However, they cite no authority to support such an interpretation. Nor do they argue the Bill of Sale satisfies the statutory requirements for a will. (See, e.g., Prob. Code, § 6110.) Generally, courts reject attempts to transfer property by methods other than wills. For example, in Kelly v. Bank of America National Trust & Savings Assn. (1952) 112 Cal.App.2d 388, 396, the court held a deed designed to serve as a testamentary disposition of property would be "entirely inoperative." It explained, "This may only be done by a will executed as required by law. A deed, the purpose of which is intended to be testamentary, cannot be given effect." (Ibid.) Accordingly, we decline to interpret the Bill of Sale as a will. The trial court thus properly determined probate was necessary, at a minimum, for the disposition of decedent's personal property and bank account, and did not abuse its discretion in appointing Geear as the administrator."

Geear v. Pulliam, Napa County Superior Court, case # 20PRO00060

Joint Account and Will

A recent published appellate opinion addressed the sufficiency of a will to negate a right of survivorship for a joint brokerage account.

Placencia v. Strazicich (2019) _______ CA4th _______

"In 1985, Ralph opened what the parties refer to as the Franklin Fund account with an initial deposit of $140,000. Lisa was listed as a co-owner. Lisa's counsel states the paperwork submitted to open the account specifies that it is a joint account with right of survivorship, though the copy in the record is almost entirely illegible. Regardless, Stephanie stipulated that the account was opened as a joint tenancy with right of survivorship. Moreover, an account statement from 2009 addressed to Ralph and Lisa bore the acronym "JT WROS," which appears to stand for joint tenants with right of survivorship.
 
Lisa, who was 23 years old at the time, had no involvement in opening the fund. Ralph told Lisa that he put her on the Franklin Fund, but never had any other discussion with her about it. Lisa never deposited money into the account, all of which, to Lisa's knowledge, came from Ralph. Lisa never withdrew money from the account during Ralph's lifetime. The account paid dividends, which Ralph took during his lifetime.

Ralph passed away in December 2009. In the months leading up to his death, Ralph had a number of conversations with Henry Rivera, his brother-in-law, which resulted in Henry assisting Ralph to prepare a will and trust, which Ralph executed approximately 11 days before his death. His will left specific directions as to the Franklin Fund account: "Remove Lisa Strazicich as sole beneficiary of my Franklin Fund. I want the beneficiaries to be Lisa Strazicich, Stephanie A. Placencia and Tina R. Placencia, my three daughters. I want the Franklin Fund to be placed into my trust fund and then be used to pay off the mortgage of my home in Huntington Beach, CA." Henry confirmed that Ralph specifically made these requests in their conversations."

The general rule is that "sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent." Probate Code §5302(a). Moreover, "a right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will."  

Ultimately the Court of Appeal ruled that Ralph's will negated the right of survivorship and the account should be part of his probate estate, as opposed to being distributed to his daughter, the surviving joint account holder.

Filing a Timely Creditor's Claim

All people pass away owing some kind of debt. Some estates have large debts while others have small debts. If an estate is probated, the probate process provides an opportunity to file a claim against the decedent's estate. Each creditor is tasked with filing their claim in a timely manner. Otherwise their claim can be time-barred even if their claim is valid.

A recent published appellate opinion addressed the issue of when a creditor's claim is timely filed.

Estate of Holdaway (2019) _______ CA4th _______

"The decedent died on June 13, 2013. On June 11, 2014, Everett filed a petition for probate and creditor's claim seeking $90,875. The claim was based on (1) four loans to the decedent, totaling $25,200; (2) unspecified "in-home services" she provided to the decedent, valued at $24,000; (3) unspecified "in-home expenses" of $17,675 she incurred on the decedent's behalf; and (4) "certain property" owned by Everett in the possession of the decedent at the time of his death, valued at $24,000.

After five continuances requested by Everett's counsel, in March 2015 the trial court issued an order to show cause why the petition should not be dismissed for failure to prosecute. On May 7, 2015, the trial court ordered the case "dismissed without prejudice as to [the] entire action" for failure to prosecute.

In December 2015, Everett filed another petition for probate with the trial court under the same case number as her previous petition. In May 2016, Holdaway, who is the decedent's son, filed a competing petition for probate. The competing petition stated that the decedent had died testate, and attached an attested and subscribed will that left all the property to a family trust he had established. The will nominated the decedent's wife or, in the alternative, Holdaway, as executor. In October 2016, the trial court granted Holdaway's competing petition, dismissed Everett's petition, appointed Holdaway as the personal representative of decedent's estate, and admitted the will. There were no objections to these rulings, and the court noted that the dismissal of Everett's petition was "by agreement" of the parties.

On March 10, 2017, Holdaway formally rejected Everett's creditor's claim against the estate. On May 19, 2017, Everett filed her complaint challenging the rejection, seeking damages in the amount of the claim, $90,875.

Holdaway demurred to the complaint, arguing among other things that it was time barred under Code of Civil Procedure section 366.2, and that in any case it was barred by other statutes of limitations. The trial court sustained Holdaway's demurrer without leave to amend."

On appeal, the appellate court reversed the trial court holding that only the estate's personal representative had the power to reject Ms. Everett's creditor claim. Since the personal representative did not reject the claim until March 10, 2017, Ms. Everett had 90 days thereafter to file her lawsuit against the estate.

The fact that Ms. Everett initiated her lawsuit years after the decedent's death was immaterial. Normally a claim must be filed against a decedent's estate within 1 year of death. Code of Civil Procedure section 366.2. In this case though, since Ms. Everett had filed her creditor's claim within 1 year of the decedent's death, the statute of limitations was tolled until it was rejected by the personal representative on March 10, 2017. Following the personal representative's rejection, Ms. Everett had 90 days to commence a lawsuit. She timely did so by filing her complaint on May 19, 2017.