Matter of The Pusser Trust

Case Number

24PR00360

Case Type

Hearing Date / Time

Wed, 07/31/2024 - 08:30

Nature of Proceedings

Petition for Instructions

Tentative Ruling

Probate Notes:

The following must be submitted:

Further Briefing. The petition properly cites to Probate Code section 17200 for authority to request the Court instruct the trustee.  However, the Petition for Instruction, as submitted, not only appears to be an improper request for the Court to solve the Petitioner’s problem, but also fails to cite to any other law to support the extreme solution of forfeiture in the prayer, which would require this Court to treat two beneficiaries as predeceased based solely on the fact that Petitioner is currently not capable of locating said beneficiaries.

A  petition for instructions should not be regarded as an opportunity for a [fiduciary] to have the court solve a problem. Most courts will look to the personal representative to outline some potential resolutions. The purpose of the petition for instructions is to ask for guidance. Also, a petition for instructions should not be viewed as a catch-all vehicle. Be certain to review specific procedures which may be utilized in lieu of a petition for instructions.

(Cal. Civ. Prac. Probate and Trust Proceedings, Instructions from or confirmation by court, § 15:10.)  Thus, a proper Petition for Instructions will outline one or more possible solutions to a problem, and support those solutions with legal citation. 

This was not done here.  Petitioner made some effort to find the two beneficiaries at issue, but gave this court no evidence that would support treating the beneficiaries as predeceased.  (See e.g. Prob. Code, §§ 259, 1846, 1849, 12404.) There is nothing in evidence that shows either beneficiary caused the death of the settlors of this trust (Prob. Code, §259), or is actually dead (i.e. death certificate or Social Security Death Index location).  There is also no evidence that either beneficiary has been reported as a missing person (or the circumstances that led them to be missing), or that the Probate Code procedure for having a missing person presumed dead has been followed (See Probate Code, Div. 7, Part 12; .)  Even if the Court could presume the two beneficiaries at issue were dead, the Court would not just instruct the Trustee to distribute their property to another.  Petitioner would have to Probate the presumptively deceased beneficiaries’ shares of the trust. (Prob. Code, §12402.)

“Equity abhors a forfeiture. And forfeiture is an especially harsh result here. . . .” (Breslin v. Breslin (2021) 62 Cal.App.5th 801, 810 [citing Hand v. Cleese (1927) 202 Cal. 36, 46.] Tangeman, J. dissenting.)  In order to grant the relief requested in prayer nos. 2, 3, and 4, the Court would have to ignore myriad provisions in the Probate Code requiring the Petitioner to do more than what has been done here.

While the Court is unaware of any authority for the relief requested, Petitioner may submit points and authorities that show this Court how it has the authority to take property from A and give to B via Probate Code section 17200.

Proposed Order (Local Rule, 1731.) – Petitioner must submit a proposed order outlining the exact relief requested in the petition.

If the documents curing these deficiencies are not processed by 4pm on July 29, 2024, it is recommended that the matter be continued to a date set 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 1701(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).

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 956 1423

Passcode: 137305