Estate of Kathleen Gregory Carriere Stark

Case Number

22PR00363

Case Type

Hearing Date / Time

Tue, 12/17/2024 - 09:00

Nature of Proceedings

Petition to Determine Claim to Real Property

Tentative Ruling

Probate Notes:

Appearances required. 

The following is noted for the Court at the hearing:

Inadequate Service.  Service of this petition must have occurred “at least 30 days prior to the day of the hearing” to satisfy Due Process.  (Prob. Code, §851(a).)  The proof of service filed does not conform to the above requirements, because it shows service occurred on November 20, 2024, 3 days short of the notice requirement.  Thus, Petitioner has not satisfied due process.

The Court must continue the hearing be continued to allow sufficient time for re-service in conformity with the new rule.

Once proper service has been completed, any objecting respondents must file a written objection before the next hearing.  The court has authority to require all objectors to file a written objection pursuant CRC, Rule 7.801, or else deem the failure to do so a waiver. Respondents must file a written objection before the next hearing.  The court has authority to require all objectors to file a written objection pursuant CRC, Rule 7.801, or else deem the failure to do so a waiver.

The Court may also want to encourage an amendment to the prayer for relief in the petition, because the Court cannot grant the first three prayers for relief as outlined:

Prayer no. 1: Find Notice Proper

The Court cannot find notice proper, because notice is 3 days short as outlined in the petition.  This should be denied.

Prayer no. 2: Grant the petition

This request is non-sense, because it is implied from the act of filing a pleading that the filing party prays for their petition to be granted. Of course Petitioner wants the relief granted, else Petitioner would not have filed the petition.

Further, no court should ever just “grant a petition” without expressly outlining specific relief being granted. The court should consider this request superfluous and any further response to this request unnecessary.

Prayer no. 3: Determining that all funds held in Frank Stark’s account with Fidelity, account number ending in [xxxx], at the time of Frank Stark’s death are rightfully the property of Petitioner, as administrator of Frank’s Estate, and are to be transferred to Petitioner in that capacity.

The Court also cannot grant this request, because the Court has not yet determined title of the funds passes to the petitioner as an heir of the Estate of Frank Stark, the alleged owner of the funds. A court order granting title to the administrator of an estate, in a separate case determined before final distribution of the estate case, would undercut the entire probate process by passing title to an heir via court order, without the protective measures and procedures in place to protect all creditors and heirs of an estate.   The proper title holder of property that belonged to the decedent before death is technically the decedent’s estate, but more rightfully the decedent until the estate is administered and a court order distributes the property to the rightful successor(s) in interest:

The “estate” of a decedent is not an entity known to the law. It is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt. 11 Cal.Jur. 79. In order for a civil action to be prosecuted, there must be some existing entity aimed at by the processes of the law, and against whom the court's judgment will operate. 1 Bouvier's Law Dictionary, Rawle's Third Revision, 1075, defines an “estate” to be a word used to describe a condition of property, not to describe its owner.

(Tanner v. Best's Estate (1940) 40 Cal.App.2d 442, 445.)

Therefore, the Court cannot grant the third prayer for relief, as presented.

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).