Randall Heiler | Roseville Estate Lawyer

• Member | California State Bar
  Member | Texas State Bar

• California State Bar Member Since 1991
  Texas State Bar Member Since 2016

• The Supplement is meant to address the application of California Probate Code § 6120(b) and § 6124. The Petitioner contends that the removal or page 2 of the will amounted to a revocation of the will, in part, that the altered second page did not meet the requirements of being a testamentary instrument, and that the doctrine of dependent relative revocation calls on us to rely on the original, unaltered will. Petitioner requests that the Court admit the UNALTERED ORIGINAL WILL into probate for administration. California Probate Code (CPC) § 6120 defines the following acts as constituting revocation of a will or any part thereof: 1) a subsequent will which revokes the prior will (or part) expressly or by inconsistency, or 2) the will being burned, torn, cancelled, obliterated, or destroyed with the intent and for the purposes of revoking it by either the testator or another person in the testator's presence and by the testator's direction. CPC § 6124 gives us a presumption that the Testator destroyed page 2 of the will with the intent to revoke that part of the will since the will was last in the testator's possession, the testator was competent until death, and neither the original page 2 of the will nor a duplicate original of the will can be found after the testator's death. It is the Petitioner’s position that the Testator intended to revoke her will, in part, by replacing the second page, and that the original page two has been destroyed (CPC § 6120b & CPC § 6124). The Testator also attempted to amend her will by substituting an altered second page. The alteration replaced one beneficiary with another, AAAA in place of BBBB, with regard to a diamond wedding ring and a wedding band. The other change revoked a bequest of a sapphire and diamond ring to CCCC. It is the Petitioner’s position that the attempt to amend the second page of the will was invalid according to CPC § 6110 and § 6111. There were no witnesses (CPC § 6110), and the material provisions are in not the handwriting of the Testator (CPC § 6111). Application of the doctrine of dependent relative revocation would mean that the original, unaltered will is to be relied on for administration. Rather than having no page 2 of the will in effect at the time of the testator's death, dependent relative revocation would alleviate the harshness of the consequences of the testator's mistake. In other words, if a testator revokes his or her will, or a portion thereof, in the mistaken belief that a substantially identical will or codicil effectuates her intent, then by operation of law the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating the testator's intent. If the second does not effectuate the testator's intent, the first (by pure legal fiction) was never revoked. (CPC § 6123) Petitioner requests that the Court admit the UNALTERED ORIGINAL WILL into probate for administration. I declare under penalty of perjury under the laws of the State of California that the foregoing and attachments, if any, are true and correct.

• Petitioner, AAAA, requests to be appointed Successor Trustee of The DDDD First Amended Trust Agreement dated December 7, 1972. 1. The DDDD First Amended Trust Agreement dated December 7, 1972 consists of three documents: The DDDD First Amended Trust Agreement dated December 7, 1972, (Exhibit 1); The DDDD First Amended Trust Agreement dated December 7, 1972 as amended June 13, 1979, (Exhibit 2); Agreement of April 30, 1983, (Exhibit 3). 2. DDDD’s parents, XXXX and YYYY completely revoked a 1971 Trust and concurrently replaced it with a trust entitled, “FIRST AMENDED TRUST AGREEMENTS BETWEEN XXXX AND YYYY, TRUSTORS, & BANK OF AMERICA, NATIONAL TRUST AND SAVINGS ASSOCIATION AND DDDD, CO-TRUSTEES & BANK OF AMERICA, NATIONAL LLLL TRUST AND SAVINGS ASSOCIATION AND LLLL, CO-TRUSTEES & BANK OF AMERICA, NATIONAL TRUST AND SAVINGS ASSOCIATION.” (Exhibit 1). This Trust created a sub-trust entitled The DDDD First Amended Trust Agreement dated December 7, 1972. DDDD and Bank of America were to be Co-Trustees of LMNO’s trust. An Amendment dated June 13, 1979 made some minor changes to the Trust, though retained LMNO and Bank of America s Co-Trustees, (Exhibit 2). After the death of the Trustor and LMNO’s mother, YYYY, a document entitled Agreement (Exhibit 3) with a date of April 30, 1983 was created alleging to remove Bank of America from future involvement as Co-Trustee of the sub-trusts, including The DDDD First Amended Trust Agreement dated December 7, 1972. (Exhibit 3 Page 3 Paragraph 2 and Exhibit C, Page 2, Paragraph 6, attached to and incorporated by reference to Agreement). 3. On June 9, 1983, XXXX, through his attorney is fact, PPPP, transferred a one-half interest in the real property at ABCD, (Exhibit 5) to DDDD, Trustee under Trust Agreement dated December 7, 1972. That deed was recorded June 9, 1983. 4. On September 6, 1983, BANK OF AMERICA, NATIONAL TRUST AND SAVINGS ASSOCIATION in its capacity as Trustee for Domenico and YYYY, transferred the real property at 1234, and at 5678, (Exhibit 6) to DDDD Trustee of The DDDD First Amended Trust Agreement dated December 7, 1972. Both of these deeds were recorded September 16, 1983. 5. Since that time, Bank of America has had to involvement with The DDDD First Amended Trust Agreement dated December 7, 1972. DDDD managed her trust as Trustee until the time of her death, September 14, 2014. 6. The DDDD First Amended Trust Agreement dated December 7, 1972 currently is without a Trustee. 7. Petitioner has commenced proceedings in this County pursuant to California Probate Code § 17005 (b) If a living trust has no trustee, the proper county for commencement of a proceeding for appointing a trustee is the county where the trust property, or some portion of the trust property, is located. 8. The DDDD First Amended Trust Agreement dated December 7, 1972 holds three parcels of real property, all of which are located in this County: 5678, (Exhibit 4); one-half interest in 1234, (Exhibit 5); ABCD, (Exhibit 6). 9. Petitioner make his request for appointment pursuant to California Probate Code § 15660 (b) If the trust instrument provides a practical method of appointing a trustee or names the person to fill the vacancy, the vacancy shall be filled as provided in the trust instrument. 10. The DDDD First Amended Trust Agreement dated December 7, 1972 (Exhibit 1), Paragraph 7.01 includes the language, “In the event of the failure, refusal, or inability of the Trustors to appoint such a successor Trustee, The Trustee or any beneficiary of any trust provided for in this Trust Agreement may secure at the expense of the trust, the appointment of a successor Trustee by a court of competent jurisdiction.” 11. Petitioner is the only child of the Decedent, DDDD, and the only beneficiary of The DDDD First Amended Trust Agreement dated December 7, 1972. WHEREFORE, Petitioner requests an order of the Court appointing the Petitioner, AAAA, as the Successor Trustee of The DDDD First Amended Trust Agreement dated December 7, 1972, also referred to as “Trust Agreement dated December 7, 1972” in Exhibit 5. I declare under penalty of perjury under the laws of the State of California that the foregoing and attachment are true and correct.

• ESTATE OF DDDD DECLARATION IN SUPPORT OF PETITION The decedent, DDDD, raised five children in his home. I am one of the children he raised as his own. Now three of my siblings, BBBB, AAAA and EEEE, through their attorney, XXXX, have petitioned for Letters of Administration to have AAAA’s son, CCCC, administer the estate. In that petition, and verbally to me and my husband, they have indicated that they intend to separate me out of the group of the decedent’s children and defeat my intestate share of this estate by claiming that I am not the biological issue of the decedent. It has since come to my attention through other family members that as many as four of the five “children” of the decedent may not be his biological issue. I am informed that FFFF may be the only natural child of the decedent. As a result, an independent, professional fiduciary is needed to administer this estate: 1. CCCC lives in Southern California and is believed to be attending medical school. His distance from the place of administration and the demands of attending medical school are likely to interfere with the efficient administration of the estate. 2. At this time, we do not know if CCCC is entitled to the appointment as administrator. Should it be determined that AAAA is not the biological issue of the decedent, CCCC would not be entitled to the appointment. 3. One of the heirs, BBBB, is in the possession of a driver’s license which indicates that his residence is the decedent’s residence. He has utilized the identification to secure the decedent’s mail, for unknown reasons. An independent, professional fiduciary is needed immediately in order to receive and act upon the decedent’s mail. 4. One of the heirs, BBBB, is living in the decedent’s residence and none of the personal property is secure. He has removed personal possessions and money from the home. The residence has also been burglarized. An independent, professional fiduciary is needed immediately to secure the assets of the estate. 5. CCCC, should he be the administrator, would be in the position of having to require rent from his uncle or have him evicted. In that instance, the administrator’s attorney, XXXX, may be required to take action adverse to that of BBBB, his own client. 6. Litigation will ensue if my parentage is challenged or any party attempts to rebut the presumption that the decedent was my natural father. Such litigation would involve a demand that the presumption for all of the decedent’s “children” be subject to the same rebuttal. 7. CCCC, should he be the administrator, would be in the position of having to oversee a challenge to the parentage of his aunts and uncles and of his own mother. In that instance, the administrator’s attorney, XXXX, may be required to take action adverse to that of BBBB, AAAA and EEEE, his own clients. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ________________________________

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