California Partition Law Blog
For family members of a deceased loved one, the most important part of probate proceedings is the final distribution of the estate. This occurs once the estate’s debts and obligations have been satisfied, and it serves to more or less end the probate of the estate.
But what if someone thinks they’re entitled to a share of the estate but was left out of the proceedings from the outset? This is where the petition to determine distribution rights comes into play. It’s a legal mechanism whereby omitted heirs or interested parties ask to court to be included in the final distribution.
What is a Distribution in Probate?
Distribution is the final stage in what is usually a long-lasting and costly probate of a decedent’s estate. It is, essentially, the part of probate where shares of the estate are divided up and delivered to those interested parties and beneficiaries in accordance with the decedent’s will (or according to intestate succession if the decedent died without a will).
The person responsible for this distribution is the estate’s personal representative. The estate’s representative is someone appointed by the court to handle the probate process at the outset of the suit. Almost always, this person was named executor under the decedent’s will. (Prob. Code § 8420.)
Once appointed, the representative handles a myriad of tasks. They have to inventory the entire estate and appraise each item within it. (Prob. Code § 8800.) They must also notice creditors and satisfy/defend against creditor claims against the estate. (Prob. Code §§ 8120, 9001.) After this, the representative must calculate and pay from the estate any sums needed to satisfy debts against the estate, such as liens and funeral expenses. (Prob. Code § 11420.)
Only once all of this is done does the final distribution occur. The personal representative will file a petition; the court will hear the argument and, finally, enter an order directing the remaining estate assets to be distributed to interested parties. (Prob. Code § 11641.)
When does the Court decide distribution rights in probate?
The above outlining of the procedure before distribution was to illustrate an important point: it takes a long time for an estate to go through probate. And depending on the size of the estate, the personal representative may be tasked with fighting off claims from several creditors while simultaneously dealing with the complaints and concerns of family members and interested parties.
As such, there is a long time period between the court issuing letters of assignment to the personal representative and the representative actually distributing shares of the estate to beneficiaries.
And it is this time period when beneficiaries can stake their claim to the estate. (Prob. Code § 11700.) This includes even the personal representative themselves! If someone wants a share of the estate, they have to file this petition unless, of course, they were named as a beneficiary in the initial filing of the probate petition.
Why must this be done before the final distribution? It’s simple. When a court’s distribution order becomes final, it binds and is conclusive as to the rights of all interested persons. (Prob. Code § 11705.) In other words, a final order of distribution operates to fully settle the testate and intestate rights of distribution of all those people who did “or could have participated” as claimants to the estate. (Estate of Herzog (2019) 33 Cal.App.5th 894, 903.) If you don’t file a petition, it does not matter that you could have.
What is required to seek distribution rights?
The first thing an interested person must do is file the petition itself. Importantly, this petition must include a “statement” of the basis for the petitioner’s claim. (Prob. Code § 11700.) The significance of this statement cannot be understated. It is the basis of the claim to distribution rights, and the court will use it as evidence when coming to its determination. (Prob. Code § 11704.)
In other words, if the petition statement is flimsy in that it’s based on nothing but mere speculation, it will sink the entire petition. As has been stated time and time again by the courts, “an affidavit… lacks evidentiary value, in a variety of civil contexts, when based on information and belief, or hearsay.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87.)
Moreover, the evidentiary burden with these petitions rests solely on the petitioning beneficiary. Under settled caselaw, the burden rests with purported heirs to establish their relationship with the decedent. (Estate of Horman (1968) 265 Cal.App.2d 796, 799.)
What happens after a petition is filed?
Once the purported beneficiary files their distribution petition, there are a few key steps that occur.
The first is that the petitioning party must notify the hearing to several individuals. (Prob. Code § 11701.) This is because the settled heirs and beneficiaries must have a chance to fight the petition if they so choose.
The notice must be given to anyone who requested special notice at the outset of the probate proceedings and the personal representative. (Prob. Code § 1220.) In addition, the petitioner must also notice each known heir, each known devisee, and on special occasions, the attorney general. (Prob. Code § 11701.)
After this petition comes the responses. While some may think of the word “response” as code for an opposition, here, that isn’t the case. Instead, any interested person can, at or before the hearing, file a written statement that can either support or oppose the petition. (Prob. Code § 11702.)
Provided the statement is submitted on time, it comes into evidence for the court to consider. If one files late, however, then they are barred from further participation in the proceeding and must be bound by the court’s decision.
What role does the Personal Representative Play in Distribution Petitions?
When it comes to these distribution petitions, personal representatives are in a unique position. As they are typically those individuals who were very close to the decedent (i.e., their children), they can provide some unique context into the decedent’s intent in leaving someone out of a will, for instance.
But at the same time, they are the most powerful interested party during the probate proceedings. Their neutrality is something the courts wish to maintain. They should be settling the affairs of the estate as opposed to looking out for their own individual interests.
As such, when a distribution rights petition is filed, the personal representative can participate only subject to court approval by filing their own petition to participate. (Prob. Code § 11704.)
This petition can simply be one where the representative promises to assist the court in a neutral fashion. But it may also be one where the representative seeks to oppose the initial distribution petition by the alleged beneficiary.
Whatever the case may be, the representative’s petition will only be granted upon a showing of good cause. What is good cause? That will vary from case to case. But, if there’s a general set of circumstances that might serve as an example, then it would be the representative having an “unusually high degree of personal familiarity with the matters relevant to the petitioner’s proceeding, combined with a lack of self-interest in the distribution of the estate.” (Estate of Kerkorian (2018) 19 Cal.App.5th 709, 721.)
How can Attorneys at the Underwood Law Firm Assist You?
Probate procedures are already immensely complex and time-consuming. But adding issues related to omitted parties and distribution makes the process even more complicated.
At the Underwood Law Firm, our knowledgeable attorneys are here to help. If you are attempting to file a petition to determine distribution rights, wondering whether you can partition the property in probate court, or if you just have questions, please do not hesitate to contact our office.
Learn more here.