Estate of Williams CA2/7 ( 2022 )

Filed 10/13/22 Estate of Williams CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Estate of TOULONNE B314694
WILLIAMS, Deceased.
(Los Angeles County
ZACHARIE DEJOHNETTE, as Super. Ct. No. 19STPB00026)
Administrator,
Petitioner and Appellant,
v.
LINZA WILLIAMS,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Gus T. May, Judge. Affirmed.
Lisa M. MacCarley for Petitioner and Appellant.
No appearance by Respondent.
INTRODUCTION
Zacharie DeJohnette, the administrator of the estate of
Toulonne Williams (the Estate), appeals from an order denying
his petition for approval of a settlement agreement and for final
distribution. DeJohnette, who is Toulonne’s son and a
beneficiary of the Estate, sought an order distributing the
Estate’s only asset, a house, to himself and a granddaughter of
Toulonne’s, and omitting Toulonne’s surviving spouse (who died
during the administration of the estate) from the distribution.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Toulonne Dies Intestate
Toulonne died intestate in September 2018. She left three
heirs: her husband, Linza Williams Jr.; her son, DeJohnette; and
a granddaughter, Paulana-Viviana (the daughter of Toulonne’s
predeceased son). Under the intestacy provisions of the Probate
Code, Linza Jr., as Toulonne’s surviving spouse, was to receive
one-third of the separate property of the Estate,1 as well as
Toulonne’s share of the community property (in addition to his
share). The probate court appointed DeJohnette administrator of
the Estate.
The Estate’s only asset is a house in Pasadena, which is
encumbered by a deed of trust securing a promissory note. When
Toulonne died, Linza Jr. filed several petitions against the estate,
including a petition to set apart the Pasadena house as a
1 See Probate Code sections 100, 240, 6401, 6402. Statutory
references are to the Probate Code.
2
homestead. In addition, Linza Jr.’s son, Linza III, moved into the
house, but did not pay rent to the Estate or his father.
DeJohnette later filed an unlawful detainer action against Linza
III to remove him from the house.
B. Linza Jr. Dies, and DeJohnette Files a Petition for
Approval of a Settlement and for Final Distribution of
Toulonne’s Estate
Linza Jr. died in August 2019. DeJohnette and Linza III
later reached a settlement in which DeJohnette agreed to pay
Linza III $30,000 from the Estate and to release any claims he
(DeJohnette) had against Linza III. In exchange, Linza III
purported to agree to release any claims his father Linza Jr. had
against the Estate and to disclaim Linza Jr.’s interest in the
Estate. DeJohnette filed a petition for approval of the settlement
and for final distribution after waiver of accounting. DeJohnette
sought an order distributing the Pasadena house, subject to the
promissory note and deed of trust, to him and his niece, Paulana-
Viviana. The estate did not have any other remaining debts or
liabilities.
Linza Jr. had another surviving child—a daughter named
Lisa, Linza III’s sister. In support of the petition, DeJohnette
stated that he and his attorney did their “best to notify Lisa . . . of
the proceedings and contact her to negotiate a settlement,” but
that Linza III “adamantly” refused to provide Lisa’s contact
information. At the time DeJohnette filed the petition for final
distribution, no one had initiated probate proceedings for
Linza Jr.’s estate.
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C. The Probate Court Denies the Petition
The probate court denied the petition for three reasons.
First, the court ruled the appointment of an administrator for
Linza Jr.’s estate was required to represent Linza Jr.’s interest in
the Estate. Second, the court ruled DeJohnette failed to provide
adequate notice to Lisa, whose interests were “affect[ed]” by the
proposed settlement. Finally, the court ruled the distribution
under the proposed settlement was inappropriate because the
Pasadena house “appeared to be community property with
Linza [Jr.].” DeJohnette timely appealed from the order denying
the petition.2
DISCUSSION
A. Legal Standard
“The probate court or judge is the guardian of estates of
deceased persons and all proceedings are under the direction of
the judge.” (County of Los Angeles v. Morrison (1940) 15 Cal.2d
368, 371; see Estate of Sapp (2019) 36 Cal.App.5th 86, 102.) The
court must approve any compromise or settlement that affects
“[a]n interest in real property” (§ 9832, subd. (a)(2)) or that
affects the transfer of estate property exceeding $25,000 (§ 9833).
DeJohnette’s proposed settlement with Linza III, under which
DeJohnette agreed to pay Linza III $30,000 from the Estate in
exchange for Linza III disclaiming Linza Jr’s interest in the
Estate (including Linza Jr.’s interest in the Pasadena house),
affected both an interest in real property and a transfer of real
2 A probate court’s “refusal to grant” an order “[d]irecting
distribution of property” is appealable. (§ 1303, subd. (g).)
4
property exceeding $25,000. In addition, the court must approve
final distribution of an estate. (See §§ 10951, 11603.)
We review an order on a petition for approval of a
settlement and an order on a petition for final distribution for
abuse of discretion. (See Breslin v. Breslin (2021) 62 Cal.App.5th
801, 806 [“the standard of review for the probate court’s approval
of a settlement is abuse of discretion”]; Estate of Lock (1981)
122 Cal.App.3d 892, 902 [“In ruling upon a petition for settlement
of an executor’s account or final distribution of an estate, the
probate court is vested with broad jurisdiction which will not be
disturbed on appeal except when abused.”]; Estate of Green (1956)
145 Cal.App.2d 25, 28 [same].) “‘“[W]e will only interfere with
[the probate court’s] ruling if we find that under all the evidence,
viewed most favorably in support of the [probate] court’s action,
no judge reasonably could have reached the challenged result.”’”
(Estate of Sapp, supra, 36 Cal.App.5th at p. 104; see Estate of
Hammer (1993) 19 Cal.App.4th 1621, 1634.)
B. The Court Did Not Abuse Its Discretion
The probate court did not abuse its discretion in denying
DeJohnette’s petition. First, neither Linza Jr., a personal
representative of Linza Jr.’s estate, nor anyone else authorized by
the Probate Code to receive Linza Jr.’s share of Toulonne’s estate,
agreed to the proposed settlement. Second, DeJohnette did not
give Lisa adequate notice of the hearing on the proposed
settlement and final distribution. Finally, DeJohnette did not
show that the Pasadena house was in fact Toulonne’s separate
property, rather than community property, and that therefore it
could be included in an order distributing the Estate’s assets.
Here’s more on these reasons:
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1. Neither Linza Jr. nor His Personal
Representative Agreed to the Proposed
Settlement
DeJohnette contends the probate court erred in declining to
approve the settlement and final distribution because no one
objected. For DeJohnette, it was enough that he and
Paulana-Viviana, two of Toulonne’s three heirs, and Linza III, a
child of the remaining, deceased heir, agreed to the settlement.
It doesn’t work that way.
DeJohnette, as the administrator of the Estate, “occupies a
fiduciary relationship in respect to all parties having an interest
in the estate including heirs, . . . and, as a fiduciary, has the duty
towards such parties to protect their legal rights in the
estate.” (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 364-
365; see Estate of Sapp, supra, 36 Cal.App.5th at p. 102; Hecht v.
Superior Court (1993) 16 Cal.App.4th 836, 845.) This fiduciary
duty requires the administrator, among other things, to
“‘distribute the residue of the property to those entitled to receive
it.’” (Sapp, at p. 102; see Estate of Bonanno (2008)
165 Cal.App.4th 7, 17-18.) The probate court has a similar
responsibility “to protect the estate and ensure its assets are
properly protected for the beneficiaries” (Estate of Ferber (1998)
66 Cal.App.4th 244, 253) and has inherent equitable power to
“‘intervene to prevent or rectify abuses of [an administrator’s]
powers.’” (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.)
As the Supreme Court has explained: “[J]ustice and sound policy
require that the estates of decedents be distributed to persons
rightfully entitled thereto and every concern and endeavor of a
probate court should be to the accomplishment of that purpose.”
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(Edlund v. Superior Court (1930) 209 Cal. 690, 695; see Estate of
Kraus (2010) 184 Cal.App.4th 103, 114.)
Beneficiaries who die during the administration of the
proceeding retain their interest in their share of the estate. (See
§ 11801, subd. (a) [“the share in a decedent’s estate of a
beneficiary who survives the decedent but who dies before
distribution shall be distributed under this chapter with the
same effect as though the distribution were made to the
beneficiary while living”]; Estate of Stoddart (2004)
115 Cal.App.4th 1118, 1133 [Probate Code does not “require that
[a beneficiary] survive the distribution of [the decedent]’s estate
in order to receive the residue of the estate”]; Estate of McGuigan
(2000) 83 Cal.App.4th 639, 653 fn. 11 [“heirs are entitled to their
share of the decedent’s estate even if they die prior to distribution
of the estate”].) Thus, the probate court’s duty to ensure all
estate beneficiaries received the distributions to which they were
entitled required the court to ensure Linza Jr. (or his estate, after
he died), like the living beneficiaries, received the distribution to
which he was (and his estate now is) entitled.
Here, the proposed settlement would have cut Linza Jr.’s
estate out of the distribution of Toulonne’s estate. As DeJohnette
stated in his petition for approval, the proposed settlement would
have resolved Linza Jr.’s entire “interest in the estate,” including
potential “reimbursement” claims by Linza Jr. against the estate.
Linza Jr., however, did not agree to the settlement, nor did
anyone who could resolve his claims on behalf of his estate.
True, Linza Jr.’s son, Linza III, agreed to the settlement.
But the Probate Code does not permit DeJohnette, as
administrator of Toulonne’s estate with a fiduciary duty to each
of the estate’s beneficiaries (including deceased beneficiaries), to
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omit Linza Jr. or his estate from the distribution by making a
deal with one of his children. As the Probate Code makes clear,
where an adult beneficiary dies during the administration of the
estate, “the beneficiary’s share in the decedent’s estate shall be
distributed” in one of two ways: “to the personal representative of
the estate of the beneficiary for the purpose of administration in
the estate of the beneficiary” (§ 11802, subd. (a)) or to the persons
“entitled to the beneficiary’s share” if that person proceeds under
Division 8 of the Probate Code, which governs disposition of an
estate without administration (§ 11802, subd. (b); see § 13000 et
seq.). Linza III was neither.3 Moreover, section 11802
guarantees the distribution to a deceased beneficiary will pass to
the beneficiary’s rightful heirs or successors. (See Estate of
McGuigan, supra, 83 Cal.App.4th at p. 653 fn. 11 [generally “the
administrator of the [deceased beneficiary’s] estate ‘stands in the
shoes of’” the beneficiary]; O’Flaherty v. Belgum (2004)
115 Cal.App.4th 1044, 1062 [“An executor or trustee of an estate
is the real party in interest for purposes of bringing a claim on
behalf of those estates.”]; see also § 13101 [to obtain a decedent’s
interest in property under Division 8, the successor of the
3 The settlement agreement recites that Linza Jr. executed a
trust and pour-over will that “nominate[d] Linza III as his
personal representative.” As DeJohnette concedes, however, no
one has filed a petition for administration of, and Linza III has
not been appointed personal representative of, Linza Jr.’s estate.
(See § 8400 [“A person has no power to administer the estate
until the person is appointed personal representative and the
appointment becomes effective, which occurs when “the person
appointed is issued letters.”].) And neither document is in the
record.
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decedent must file a declaration stating his or her right to the
interest in the property].) To allow DeJohnette to omit Linza Jr.
and his estate from the final distribution after reaching a deal
with only one of his children would be inconsistent with the
statutory requirements of section 11802.
In addition to these procedural concerns, the terms of the
proposed settlement were substantively problematic. The
proposed settlement provided that DeJohnette would pay
Linza III $30,000 from the Estate (and release DeJohnette’s
claims against Linza III) and that Linza Jr. would disclaim his
entire interest in the Estate. There was good reason, however,
for the probate court to believe Linza III was not the only person
who was entitled to receive the proceeds of a distribution to Linza
Jr. from the estate. The record does not identify the beneficiaries
of Linza Jr.’s estate, or even reflect Linza III was one of them.
But the court knew there was at least one potential beneficiary in
addition to Linza III: Linza Jr.’s other child, Lisa. The practical
effect of the proposed settlement agreement was that the Estate
would have given Linza III cash and other consideration, while
all of Linza Jr.’s other potential beneficiaries (not just Linza III)
would have given up their right to receive Linza Jr.’s legitimate
share of distributions from Toulonne’s estate. Such a settlement
would not have been fair to the other potential beneficiaries (or to
Linza Jr., who may not have wanted his estate to pass entirely to
Linza III). (See In re Estate of Freeman (1965) 238 Cal.App.2d
486, 489-490 [probate court may deny a petition for approval of a
settlement “to the extent it finds the consideration grossly
unreasonable”].)
DeJohnette argues the probate court should have approved
the settlement despite these red flags because he made efforts to
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contact Lisa and Linza III refused to provide her contact
information. If anything, Linza III’s unwillingness to provide
Lisa’s contact information created a suspicion Lisa would not
have agreed to the proposed settlement had she known about it
and understood its terms. After all, under the proposed
settlement, she would be giving up her potential interest
(through Linza Jr.) in the Estate and receive nothing in return.
And that DeJohnette’s (rather limited) efforts to locate Lisa were
temporarily thwarted was additional justification for denying the
petition. As discussed, the Probate Code specifies the persons to
whom an administrator must distribute a deceased beneficiary’s
share of the estate. It does not permit the administrator to reach
a settlement with one, and only one, of the deceased beneficiary’s
potential heirs simply because the administrator cannot locate
others. Where the “whereabouts of a distributee” are unknown,
the probate court must include that person in the final
distribution order and “provide for alternate distributees” who
may obtain the distributee’s share after five years. (See § 11603,
subd. (c).)
2. DeJohnette Did Not Give Lisa Adequate Notice
“If no personal representative has been appointed for the
postdeceased beneficiary” (here, Linza Jr.), “notice must be sent
to his or her beneficiaries or other persons entitled to succeed to
his or her interest in the decedent’s estate.” (Cal. Rules of Court,
rule 7.51(e).) DeJohnette does not contend he gave Lisa notice of
the hearing on the proposed settlement and final distribution.
He simply asserts (in addition to stating Linza III refused to
provide Lisa’s contact information) that “all attempts to contact
Lisa have led to nothing.”
10
The Probate Code allows the administrator to provide
notice of a hearing by personal delivery, mail, or electronic
delivery. (§ 1215; Cal. Rules of Court, rule 7.51(a)(1); see Estate
of Carter (2003) 111 Cal.App.4th 1139, 1145 [due process requires
that known and reasonably ascertainable heirs receive
“personal notice of estate proceedings, that is, by mail or personal
service”].) Where, as here, the address of a person entitled to
receive notice is unknown, the administrator “must file a
declaration describing efforts made to locate” the person. (Cal.
Rules of Court, rule 7.52(a).) “The declaration must state . . . the
last known address of the person, the approximate date when the
person was last known to reside there, the efforts made to locate
the person, and any facts that explain why the person’s address
cannot be obtained. The declaration must include a description of
the attempts to learn of the person’s business and residence
addresses by: [¶] (1) Inquiry of the relatives, friends,
acquaintances, and employers of the person entitled to notice and
of the person who is the subject of the proceeding; [¶] (2) Review
of appropriate city telephone directories and directory assistance;
and [¶] (3) Search of the real and personal property indexes in
the recorder’s and assessor’s offices for the county where the
person was last known or believed to reside.” (Ibid.)
The only evidence of DeJohnette’s attempts to contact Lisa
were statements in his verified petition that “[c]alls were placed
to each of [Lisa’s] known numbers” and on-line investigation “was
done to obtain her address.” These vague assertions were
insufficient. At the very least, DeJohnette should have specified
the dates Lisa lived at her last known address, whom (besides
Linza III) he contacted, and what records he searched to obtain
her address. (See Ross & Cohen, Cal. Practice Guide: Probate
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(The Rutter Group 2008) ¶ 3:217 (Sept. 2022 update) [“Clearly,
‘reasonable efforts’ require more than simply questioning the
immediate survivors about the whereabouts of their relatives.”].)
3. DeJohnette Did Not Show the Pasadena House Was
Toulonne’s Separate Property
Finally, DeJohnette contends the court erred in denying
the petition on the basis the Pasadena house appeared to be
community property. According to DeJohnette, the probate court
“has no authority to deny a petition based upon its own
objection.” DeJohnette’s understanding of the law is incorrect.
“Even apart from the statutory authority, the probate court
is a court of general jurisdiction [citation] with broad equitable
powers.” (Estate of Kraus, supra, 184 Cal.App.4th at p. 114; see
Estate of Stanley (1949) 34 Cal.2d 311, 319; Estate of Bennett
(2008) 163 Cal.App.4th 1303, 1311). The probate court has the
“power to hear and determine, in the mode provided by law, all
questions of law and fact, the determination of which is ancillary
to a proper judgment in such case.” (Stanley, at p. 319; see
Bennett, at p. 1311.) In particular, “the probate court has
jurisdiction to determine whether property is part of the
decedent’s estate.” (Kraus, at p. 114; see Estate of Baglioni
(1966) 65 Cal.2d 192, 197 [“a superior court sitting in probate
that has jurisdiction over one aspect of a claim to certain property
can determine all aspects of the claim”]; Estate of Dabney (1951)
37 Cal.2d 672, 680-681 [probate court may “in the exercise of
judicial discretion . . . delay the distribution of the estate until
the right to the assets be judicially determined”].)
Indeed, before approving a distribution, the probate court
must be satisfied the evidence shows the assets included in the
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proposed distribution belong to the estate. “The power of the
probate court extends only to the property of the decedent. An
attempt to take and distribute the property” that does not belong
to the decedent “is a violation of due process [citation].” (In re
Estate of Lee (1981) 124 Cal.App.3d 687, 692.) Where an
agreement for an estate distribution “embraces both property
that is a part of the estate and property which is not a part of the
estate, especially community property, the probate court has
jurisdiction to decide the validity of the entire agreement” (Estate
of Stanley, supra, 34 Cal.2d at p. 319), which includes
determining the character of the property (see id. at pp. 319-320.)
DeJohnette has not cited any evidence in the record
demonstrating—one way or the other—whether the Pasadena
house was community property or Toulonne’s separate property.4
Therefore, he has failed to meet his burden to show the probate
court abused its discretion in declining to approve the settlement.
(See Canyon Crest Conservancy v. County of Los Angeles (2020)
46 Cal.App.5th 398, 409 [“Under the abuse of discretion
standard, we presume the trial court properly applied the law
and acted within its discretion unless the appellant affirmatively
shows otherwise.”]; Estate of Walker (1963) 221 Cal.App.2d 792,
796 [“Abuse of discretion is never presumed; it must be
affirmatively established by the party complaining of the court’s
order, and all reasonable inferences from the evidence which will
uphold the order will be indulged.”].) DeJohnette does cite his
attorney’s argument, at the hearing on the petition to approve
the settlement, that Linza Jr. “quitclaimed” the property.
4 DeJohnette does not, for example, cite any evidence of who
is on the title to the property, when the property was purchased,
or when Toulonne and Linza Jr. married.
13
Statements and arguments by counsel, however, are not
evidence.5 (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139;
see York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1191;
see also § 1000, subd. (a) [except where the Probate Code
provides otherwise, “[a]ll issues of fact joined in probate
proceedings shall be tried in conformity with the rules of practice
in civil actions”].)
DISPOSITION
The order is affirmed. DeJohnette is to bear his costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
5 There is no evidence in the record of a quitclaim deed. And
the petition Linza Jr. filed while he was alive for a homestead
exemption suggests he did not believe the house was Toulonne’s
separate property.
14