Estate of William James Cunningham

Case Number

23PR00121

Case Type

Hearing Date / Time

Mon, 05/20/2024 - 08:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required.  The petition contains many errors and must be amended.  Because the Petition must be amended, it must also be reserved. (CRC, Rule 7.53.) Due to the amount of errors, petitioner must use Local Form SC – 6028 as the amended pleading and carefully read and check each applicable paragraph (i.e. box) of that form.

The following defects exist in the current pleading:

Notice to Franchise Tax Board.  Notice MUST have been given to the Franchise Tax Board not later than 90 days after the date letters are first issued. (Prob. Code, § 9202, subd. (c)(1).)

Notice to Relevant State Entities.  Notice of the petition must be served to any of the following state entities, if relevant:

• Director of the California Victim Compensation and Government Claims Board - If an heir or beneficiary is or has previously been confined in CDCR facility, county or city jail, road camp, industrial farm, etc., notice must have been given to the Director of the California Victim Compensation and Government Claims Board not later than 90 days after letters issued (§ 9202, subd. (b))
• State Board of Equalization - If decedent paid any taxes pursuant to Sales and Use Tax Law (Rev. & Tax. Code § 6487.1), Bradley-Burns Uniform Local Sales and Use Tax Law (Rev. & Tax. Code § 6487.1), Transactions and Use Tax Law (Rev. & Tax. Code § 6487.1), Motor Vehicle Fuel License Tax Law (Rev. & Tax. Code § 7675.1), Use Fuel Tax Law (Rev. & Tax. Code § 8782.1), Administration of Franchise and Income Tax Law (Rev. & Tax. Code § 19517), Cigarette Tax Law (Rev. & Tax. Code § 30207.1), and Alcoholic Beverage Tax Law (Rev. & Tax. Code § 32272.1), notice must have been given to the State Board of Equalization.
• Employment Development Department - If decedent owed unemployment insurance, notice must have been given to the Employment Development Department (Unemp. Ins. Code, § 1090)
• Department of State Hospitals - If decedent, or his spouse, father, mother, or child, has been a patient in a state hospital preceding the date of decedent's death, notice must have been given to the Department of State Hospitals (Welf. & Inst. Code, § 7277.1)

Amended Final Inventory and Appraisal – The Final I & A does not comply with the following requirements:

• Contains certification that Change in Ownership Statement was filed with county recorder or assessor, unless decedent owned no real property (Prob. Code, 8800, subd. (d)) (i.e. Petitioner must file the appropriate notice indicated in Paragraph 5b, and check that box.)

Supplement to the Petition.  The following defects require a supplement to the petition in order to comply with the relevant code section cited, or give the Court the necessary information to adjudicate the ability of the estate to be closed:

• Property Description -  Allegations must:
  • “list and describe in detail the property to be distributed, in the body of the petition or in an attachment that is incorporated in the petition by reference.”  (CRC, Rule 7.651, subd. (a))
  • include the amount of cash on hand (CRC, Rule 7.651, subd. (b)(1))
  • include the complete legal description, street address (if any), and assessor's parcel number (if any) of real property CRC, Rule 7.651, subd. (b)(3))
  • include the character of the property to be distributed (e.g. separate, community, or quasi-community) (CRC, Rule 7.652, subd. (a)(1); see also Prob. Code, § 8850)
  • include whether or not property is the decedent's one-half interest only, or the entire interest of the decedent and the decedent's spouse, IF community/quasi-community property is to be distributed (CRC, Rule 7.652, subd. (a)(2))

Accounting or Waivers.  There were no waivers of accounting filed. Each person entitled to distribution from the estate may waive a final account by 1) filing a written waiver of account (Prob. Code, § 10954, subd. (a)(1)); OR by filing 2) proof of adequate provision for satisfaction in full of the person’s interest (Id., subd. (a)(2)).

The final account must be submitted, if not waived. (Prob. Code, § 10951.)  The final account must contain all items listed in Probate Code section 1061:

• (1) The property on hand at the beginning of the period covered by the account, which shall be the value of the property initially received by the fiduciary if this is the first account, and shall be the property on hand at the end of the prior account if this is a subsequent account.
• (2) The value of any assets received during the period of the accounting which are not assets on hand as of the commencement of the administration of an estate.
• The amount of any receipts of income or principal, excluding items listed under paragraphs (1) and (2) or receipts from a trade or business.
• Net income from a trade or business.
• Gains on sales.
• The amount of disbursements, excluding disbursements for a trade or business or distributions.
• Loss on sales.
• Net loss from trade or business.
• Distributions to beneficiaries, the ward or conservatee.
• Property on hand at the end of the accounting period, stated at its carry value.

The Summary of Account contained within the pleading is not code compliant, is not supported by attached schedules pursuant to Probate Code section 1060 et seq., and is not accurate in many respects.

Petitioner must amend the accounting or obtain waivers from all proposed those entitled to take from the estate.

Final Report.  A “final report of administration” must be filed at the same time a final account would be required.  (Prob. Code, § 10954(c)[requires amount of compensation paid/payable to PR or attorney & basis for determination].)  Allegations in the petition must include:

• Allegations must include actions taken under IAEA, including:
  • sales, purchases, or exchanges of assets (CRC, Rule 7.550(b)(2))
  • changes in the form of assets (CRC, Rule 7.550(b)(3))
  • assets on hand (CRC, Rule 7.550(b)(4))
  • whether the estate is solvent (CRC, Rule 7.550(b)(5))
  • detailed schedules of receipts and gains or losses on sale, IF an amount other than the amount of the Inventory and Appraisal is used as a basis for calculating fees or commissions (CRC, Rule 7.550(b)(6))
  • a list of costs of administration, IF reimbursement of administration costs is requested  (CRC, Rule 7.550(b)(7))
  • a list of the amount of any fees or commissions paid or to be paid (CRC, Rule 7.550(b)(8)), and the calculation of such fees or commissions as described in CRC, Rule 7.705(b) (CRC, Rule 7.550(b)(9))

NOTE: The requirements of Rule 7.550(b) mandate an escrow statement for any sale of real property must be submitted in support of the final report.

If an accounting is required, the Final Report must include the following:

• A description of all sales, purchases, changes in the form of assets, or other transactions occurring during the period of the account that are not otherwise readily understandable from the schedule. (Prob. Code, § 1064(a)(1)) (e.g. costs advanced by PR or attorney)
• An explanation of any unusual items appearing in the account. (Prob. Code, § 1064(a)(2)) (e.g. if no cash, information regarding the source of funds that will be used to pay the fees, since fees must be paid out of the estate (Prob. Code, § 10831(d))
• A statement of all compensation paid from the assets subject to the account to the fiduciary or to the attorneys for the fiduciary other than pursuant to a prior court order. (Prob. Code, § 1064(a)(3))
• A statement disclosing any family or affiliate relationship between the fiduciary and any agent hired by the fiduciary during the accounting period. (Prob. Code, § 1064(a)(4))
• An allegation disclosing whether all of the cash has been invested and maintained in interest bearing accounts or in investments authorized by law or the governing instrument, except for an amount of cash that is reasonably necessary for the orderly administration of the estate.  (Prob. Code, § 1064(a)(5))

Proposed Order.  A proposed order must be submitted with relief that matches that requested in the petition. (Local Rule 1724(b), subd.(d).)  Order must list every beneficiary and detail the shares to each, and must expressly state limitations or conditions on distribution.  (Prob. Code, § 11603.)  IF whereabouts of a distributee are unknown, the Proposed Order must provide for alternate distributes, and detail the share to which they are entitled per PC § 11603(c).  Petitioner must use Local Form SC-6029 due to the errors in the petition noted above.

If the documents curing these deficiencies are not processed by 8:00 a.m. on May 20, 2024, it is recommended that the matter be continued to a date to be set by the Court at the hearing, unless the party appears and requests a different date, or submits a request for a different continuance date prior to the hearing. (Local Rule 1721(c)(2)(A-B).)  If the matter is continued, documents must be submitted at least 10 days prior to the new hearing date to be considered.

 

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).