Estate of Harry D Carrubba

Case Number

25PR00011

Case Type

Hearing Date / Time

Wed, 02/26/2025 - 08:30

Nature of Proceedings

Petition for Will and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.

The following is noted for the Court at the hearing:

Improper Venue.  Petitioner alleges at paragraph 3c of the Petition that Decedent’s residence at time of death was in Paso Robles, San Luis Obispo County.  Venue is not proper in Santa Barbara County as a result. 

If the decedent was domiciled in this state at the time of death, the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died.

(Prob. Code, 7051.)

From the allegations at attachment 3f(3), it appears Petitioner believes real estate located in Santa Barbara County is a hook for venue. This is incorrect. Property is only a hook for venue “If the decedent was not domiciled in this state at the time of death…” (Prob. Code, §7052(b).)

Proof of Publication.  The Proof of Publication is woefully defective. Jurisdiction of the Probate Court is obtained by publication in accordance with Article 3 of Division 7, Part 2, Chapter 2 Probate Code.  (Prob. Code, § 8003(b).)

Publication requires the notice to be published in a newspaper adjudicated as a newspaper of general circulation in the city of decedent’s residence. (Prob. Code, §§ 8121, 7122.)  If the city of decedent’s residence has no newspaper adjudicated as a newspaper of general circulation, publication must occur “in a newspaper of general circulation in the county which is circulated within the area of the county in which the decedent resided or the property is located.” (Prob. Code, §8121(b).)

Santa Barbara Independent has not been adjudicated a newspaper of general circulation in the city of Paso Robles, where Decedent was a resident.  A declaration of substantial compliance cannot fix this defect. (Prob. Code, § 8122.)

Defective Allegations at Paragraph 8 of the Petition.  The following allegations must be made without creating ambiguity, but were pleaded in a manner that creates ambiguity:

• Paragraph 8 of the petition specifically requires listing name and relationship to the decedent.  Petitioner lists 9 potential heirs of the estate, but fails to list their relationship to the Decedent.  Additionally, Petitioner creates ambiguity with two of the heirs by including c/o to a separate person without explanation.

Proof of Service of Notice of Hearing (Form DE-121).  The Court cannot determine whether Notice is proper, because of the defects in pleading at paragraph 8 of the petition.  Once those defects are resolved, notice must be given 15 days prior to hearing, served on all known heirs and devisees, as well as on the Personal Representative (if not the petitioner) and special notice requestors.  (Prob. Code, §§ 8100 & 8110.) Notice must be sent to the person, not the person’s representative. (§1220.)

Trust Instrument.  Allegations in the Petition and accompanying documents reveal the existence of a trust. A copy of the trust, and all accompanying amendments, must be submitted for review to ensure compliance with the Decedent’s testamentary intent and notice to individuals who might otherwise not be given notice. (Local Rule, 1791(c).)

Original Will.  An original will and any codicil to that will must be lodged with the Court. (Prob. Code, §§ 8200, et seq.) If the original is lost, as alleged in this petition, petitioner must provide sufficient evidence showing the presumption of destruction in Probate Code section 6124 should not apply, or provide evidence overcoming the presumption of destruction.

There is no substantial evidence on file. Petitioner’s allegations that Decedent had the will in possession upon death raise the presumption of destruction.  Petitioner may overcome this presumption with substantial evidence that shows the Court some supported fact that the Decedent did not destroy the will.  Petitioner is referred to the following authority to understand the evidence required to overcome the presumption of destruction in Probate Code section 6124:

• Estate of Trikha (2013) 219 Cal.App.4th 791, 804 [substantial evidence required to overcome presumption]
• Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1333 [Duplicate Original not usually sufficient]

Affidavit of Subscribing Witness.  The will is not self-proving, because it does not meet the requirements of Probate Code section 6110, 8220(b), and 8221(b)(1) [must contain attestation clause of witnesses under penalty of perjury]. To overcome this defect, Petitioner must submit an Affidavit of Subscribing Witness (Form DE-131), of at least one of the witnesses to the execution of the will, or prove that the will was executed properly under Nevada Law.

As a result of the above defects, the petition is recommended for denial.  In the alternative, the Court can order the matter transferred to San Luis Obispo County, where venue is proper.

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