Conservatorship of Moore

Filed 8/19/09 Conservatorship of Moore CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Reva G. Goetz, Temporary Judge. (Pursuant to Cal. Const., article VI, 21.) Affirmed.

Larry Moore, in pro. per., for Petitioner and Appellant.

No appearance by Objector and Respondent.

________________

Larry Moore (Moore) appeals, in propria persona, an order denying without prejudice his petition for letters of administration for the estate of his deceased mother. We find no abuse of discretion by the probate court and affirm.

FACTS

Moore is an indigent prison inmate. He says he is the son of Ruby Moore, who died intestate on October 22, 2004.^[1] On October 17, 2007, Moore, in propria persona, filed an action entitled Estate of Ruby Lois Moore Petition for Letters of Administration. The trial court referred the matter to the Public Administrators office and continued the matter to July 25, 2008. Moore appeared by telephone at the July 25, 2008 hearing. The court issued a minute order stating, Appears petitioner is incarceratedthis petn should be DWOP [Denied Without Prejudice]. The court denied the petition without prejudice. The order does not include a statement that the minute order was mailed to Moore in prison.

Moore filed a notice of appeal on September 26, 2008, although he still had not received the minute order. In an order filed January 8, 2009, we instructed the clerks office to procure the minute order and forward it to Moore. Moore received the minute order on January 14, 2009. Moore filed his opening brief on February 13, 2009.^[2]

The caption of Moores appeal shows State of California Franchise Tax Board as Defendant and Respondent. In correspondence with this court, Moore advises that this was an error. He does not say who the real party in interest is and does not purport to have given notice to any real party in interest.^[3] He admits there are other heirs, including his brother Bobby L. Moore, Sr. None have filed an opposition to Moores appeal.

DISCUSSION

Moore claims the probate courts denial without prejudice of his petition for letters of administration was in error. The gist of Moores argument is that Moores incarceration was not a proper basis for the denial of his petition.

The probate courts refusal to grant Moore letters as a personal representative is appealable. (Prob. Code, 1303, subd. (a) [the grant or refusal to grant an order [g]ranting or revoking letters to a personal representative . . . is appealable].)^[4] We review the courts actions for abuse of discretion. (Estate ofRollins (1922) 189 Cal. 392, 393 [where no statutory priority exists, the choice between applicants for letters is in courts discretion]; Estate of Trego (1978) 81 Cal.App.3d 530, 536; Estate ofBertie (1955) 132 Cal.App.2d 522, 524 [where several persons are equally entitled to administer estate, court has discretion to choose among them and [o]n appeal it will never be presumed that the trial court has abused its discretion. In the absence of proof of an abuse of discretion and a showing that such abuse has resulted in a miscarriage of justice, this court will not substitute its opinion for that of the trial court.]; Estate ofKnowlton (1953) 118 Cal.App.2d 374, 378.)

Proceedings to administer the estate of a person who dies intestate are commenced by the filing of a petition for the appointment of an administrator. ( 8000, subd. (a).) Administration of the estate begins when a personal representative is appointed and is issued letters of administration. ( 8400, subd. (a).) A personal representative is an officer of the court, who holds the decedents estate as a stakeholder for delivery to those who the court determines are entitled thereto. (Estate ofKarban (1953) 118 Cal.App.2d 240, 245; Estate ofPalm (1945) 68 Cal.App.2d at p. 212.) The personal representative is a fiduciary with respect to heirs and creditors. (Estate of Palm, supra, 68 Cal.App.2d at p. 211; Estate of Justesen (1999) 77 Cal.App.4th 352, 359.)

Section 8402 provides that [a] person is not competent to act as personal representative in any of the following circumstances: [] . . . [] (2) The person is . . . incapable of executing, or is otherwise unfit to execute, the duties of the office. ( 8402, subd. (a)(2).) Pursuant to the Legislatures directive in section 8404, the Judicial Council has set forth in a Statutory Statement of Duties and Liabilities of Personal Representative . . . , some of the principal duties of a personal representative. These include the duty to locate the estates property, take possession of all the decedents property, determine the value of the property, file an inventory and appraisal . . . of all the assets in the estate, file a change of ownership statement with the county recorder, mail notices to creditors, determine the adequacy of insurance, keep accounts, make prudent investments, and perform other duties. (Judicial Council Forms, form DE-147.) (See Estate ofPalm, supra, 68 Cal.App.2d at p. 212 [personal representative is required to take possession of property and preserve it for benefit of heirs and creditors].)

The court has broad discretion in determining whether to issue letters of administration to a particular petitioner where, as here, priority is not an issue.^[5] (E.g., Estate ofBertie, supra, 132 Cal.App.2d at p. 524; In re Knowlton, supra, 118 Cal.App.2d at p. 378.) Moores incarceration and indigency would have made it difficult or impossible for him physically to take possession of any property of the estate, to inventory it, to invest funds prudently, to procure any insurance that might be necessary, and to fulfill his other duties to creditors and other heirs as a fiduciary and an officer of the court. He, himself, admits that it is difficult for incarcerated persons to perform tasks that persons at liberty can easily accomplish. Nor is it likely that an indigent, incarcerated person would have been able to secure the bond necessary to serve as a personal representative. (See 8480 et seq.)

The probate court acted within its discretion under section 8402, subdivision (a)(2) in denying the petition of an indigent prisoner who would likely be incapable of executing . . . the duties of the office.

DISPOSITION

The order of the probate court is affirmed.

NOT TO BE PUBLISHED.

MILLER, J.^*

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

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^[1] In 2004, Moore filed a petition for a conservatorship over his mother, which was mooted by her death before proceedings began. This is why the caption includes the words Conservatorship of the Person of Ruby Lois Moore.

^[2] Moores arguments in his brief concerning his failure to receive a copy of the order in a timely manner are mooted by these events. Thus, the arguments are not considered.

^[3] California Rules of Court, rule 8.100(a)(3) provides: Failure to serve the notice of appeal neither prevents its filing nor affects its validity, but the appellant may be required to remedy the failure. We will not require appellant to remedy the failure because it would be futile, as the appeal is fatally defective in other respects. We therefore proceed on the merits regardless of the defect in notice.

^[4] All further statutory references are to sections of the Probate Code.

^[5] The Probate Code sets forth an order of priority of persons in various relationships to the decedent that dictates who is to be appointed administrator. ( 8461.) Priority is not an issue on this appeal. The probate court here referred to the Public Administrators view that a sibling had priority but did not adopt that as a finding or a basis for its decision.

^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.