| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Petition to Approve 22nd Accounting/Fees
(§1220.) No such document was filed. If the documents curing these deficiencies are not processed by 8:00 a.m. on November 27, 2023, it is recommended that the matter be continued to a date to be set by the Court 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 1721(c)(2)(A-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).
Tentative Ruling: Estate of Margaret S. Bevan Tentative Ruling: Estate of Margaret S. Bevan Case Number
Case Type Trust Hearing Date / Time Wed, 10/18/2023 - 08:30 Nature of Proceedings Petition to Approve 22nd Accounting/Fees Tentative Ruling Probate Notes: Appearances required.
The following discrepancies are noted for the Court after supplement:
Discrepancy no 1: Trust estate lost $73,612.60 in carry value, or $152,089.91, during the accounting period. Much of the loss was from the sale of stocks at a loss, which happens every accounting period. There does not appear to be any gains on sale. In this past, attorney(s) for the trustee explained these losses as purposeful so that capital gains taxes could be avoided. Yet, curiously absent from the administration expenses are brokerage fees paid for the sale and purchase of stock. A trustee has a duty to prudently invest (Prob.
Code, §16046), and to make the trust profitable (Prob. Code, § 16007). Thus, any losses incurred for capital gains reduction should be accompanied by proof that the profits earned from the appreciation of trust assets does not outweigh the tax consequences. Stated more simply, if the trust is making money (which it is the fiduciary duty of a trustee to do), then taxes are appropriate to the degree that the taxes do not negate the gains.
Discrepancy no 2: "Fiduciary Commissions" are listed at $2,627.32 (for a total of $5,254.64) for each co-trustee, without further explanation. A "commission" is a payment derived from a percentage of a gain on sale. If these "commissions" are the fees this court approves for the trustees, the entry needs to be labeled a trustee fee. A supplement is required to explain why the co-trustees are paid commissions, and what the commission is paid on.
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Discrepancy no 3: Trustee fees requested are calculated as a percentage of the trust value, without any explanation of the actual work the trustees performed, or billing statements of the hours spent on the tasks performed. This is not a reasonable fee. "[I]f the trust instrument provides for the trustee's compensation, the trustee is entitled to be compensated in accordance with the trust instrument. (Prob. Code, § 15680.) "If the trust instrument does not specify the trustee's compensation, the trustee is entitled to reasonable compensation under the circumstances." (Prob. Code, § 15681.) The appropriateness of the trustee fees are tempered by Rules of Court, Rule 7.776, which contains factors the Court must look to in order to determine the reasonableness of the request.
Trustee fee awards are analyzed pursuant to the factors listed in CRC, Rule 7.776. As such, trustees must submit documentation of the hours spent, nature of work performed, rate charged, etc. In this case, the Court cannot determine the reasonableness of the trustee fee as a result of no billing statements. Denials or reductions of similar requests have been upheld for the following reasons: "But the custom in the community as to charges by corporate trustees is only one of many factors which the Supreme Court has said that a judge must consider. Among the other factors, the routine character of the work done stands out clearly. As to the factor of time actually spent by the trustee, the trustee chose not to apprise the court concerning this matter. It appears, however, that what the trustee did would have consumed very few hours." (Estate of Nazro (1971) 15 Cal.App.3d 218, 221-222.)
PLEASE NOTE: Supplements must be served on all persons entitled to notice of the petition. (CRC, Rule 7.53(b) ["A supplement to a pleading does not require additional notice of hearing, but a copy of a supplement to a pleading must be served if service of a copy of the pleading was required, unless waived by the court."].)