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In re Estate of Earley

April 24, 2009

ESTATE OF JAMES PETER EARLEY, DECEASED.
KATHLEEN ANDERSON, PETITIONER AND APPELLANT,
v.
VICKY BREEDEN, OBJECTOR AND RESPONDENT.



APPEAL from an order of the Superior Court of Los Angeles County, Aviva K. Bobb, Judge. Affirmed. (Los Angeles County Super. Ct. No. BP105906).

The opinion of the court was delivered by: Mallano, P. J.

CERTIFIED FOR PUBLICATION

In this probate case, an heir of a decedent's estate sought and obtained an order appointing her administrator of the estate and determining that the decedent died intestate. The administrator later found a holographic will of the decedent. More than five months after the determination of intestacy and more than three months after discovering the will, the administrator filed a petition to admit the will to probate. The trial court denied the petition on the ground it was untimely. The administrator appealed.

We agree that the petition for probate of the will was untimely and affirm.

I. BACKGROUND

On May 8, 2007, James Peter Earley died, leaving an estate valued at around $1.25 million. On July 31, 2007, Kathleen Anderson, Earley's first cousin, filed a petition in the trial court, seeking letters of administration. Anderson also filed an heirship declaration, stating she was the sole beneficiary of the estate. Notice of the petition was by publication.

On August 17, 2007, Anderson filed a notice of the petition to administer the estate. The notice was addressed to all heirs and beneficiaries, among others, and was served on the Los Angeles Public Administrator and Anderson herself. No one else was served.

By order dated September 5, 2007, the trial court appointed Anderson as the administrator of the estate with limited authority under the Independent Administration of Estates Act (Prob. Code, § 10400 et seq.; all statutory references are to that code). The court also determined that Earley had died intestate. On September 7, 2007, the trial court issued letters of administration to Anderson.

On September 28, 2007, Vicky Breeden and three other individuals filed a request for special notice (see § 1250), designating an attorney to receive any notices. Breeden was a first cousin once removed of Earley.

On October 22, 2007, Anderson discovered a holographic will of Earley dated June 14, 1954, and two codicils, dated August 2, 1954, and March 13, 1967. The will and first codicil named Earley's brother, Thomas, as sole beneficiary. Under the second codicil, if Thomas predeceased Earley, Anderson would become the sole beneficiary. Thomas died before Earley.

Anderson had the holographic will and codicils examined by a handwriting expert to determine their authenticity. After the expert confirmed that the documents were written by Earley, Anderson took steps to have them admitted to probate. (For simplicity, references to Earley's ―will‖ also include the codicils.)

On February 19, 2008, Anderson filed a petition for probate of the will and for letters of administration with will annexed. The next day, she filed a notice of the petition. On February 25 and again on April 8, 2008, she filed a ―Proof of Holographic Instrument.‖ Notice of the petition was published. On April 9, 2008, Anderson filed another notice of the petition and served it in compliance with the request for special notice.

On or about April 24, 2008, Breeden filed an objection to the petition, stating that she was a first cousin once removed of Earley and was therefore entitled to an intestate share of his estate. Breeden asserted that the will ―has not been timely presented to [the Trial] Court for admission to probate.‖

The petition was heard on April 29, 2008, and taken under submission. By minute order of the same day, the trial court sustained Breeden's objection, finding that the petition was untimely and denying probate of the will. (See ยง 8226, subd. (c).) A formal order, ...


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