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Megan Kucker et al., As Trustees, Etc v. Megan Kucker

January 26, 2011

MEGAN KUCKER ET AL., AS TRUSTEES, ETC., PLANTIFFS AND APPELLANTS,
v.
MEGAN KUCKER, RESPONDENT.



(Super. Ct. No. 56-2010-00368421-PR-TR-OXN) (Ventura County)

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

CERTIFIED FOR PUBLICATION

Megan Kucker and Bonnie Alexander are successor trustees of the Mona S. Berkowitz Trust (the Trust). They filed a petition to confirm that shares of stock were an asset of the trust. (Prob. Code § 850, subd. (a)(3)(B); see also Estate of Heggstad (1993) 16 Cal.App.4th 943.)*fn1 The shares had been owned by the deceased trustor, Mona S. Berkowitz (Trustor). Appellants appeal from the probate court's order denying their petition. The probate court erroneously concluded that the Trustor's general assignment to the Trust of her personal property was ineffective to transfer the shares of stock to the Trust. We reverse.

Background

On June 29, 2009, at the age of 84 years, Trustor signed a declaration creating a revocable inter vivos trust. On the same date, Trustor signed a general property assignment (the General Assignment) stating, "I . . . hereby assign, transfer and convey to Mona S. Berkowitz, Trustee of the [the Trust], all of my right, title and interest in all property owned by me, both real and personal and wherever located." Trustor also signed a pour-over will leaving her entire probate estate to the Trust.

On October 29, 2009, Trustor signed an amendment and restatement of the Trust. On the same date, Trustor signed an assignment transferring to the Trust all of her shares of stock in 11 specified corporations and funds. The amendment and restatement designates appellants, Trustor's daughter and niece, as successor trustees upon the death of Trustor.

Trustor died in November of 2009. In February 2010, appellants filed a petition to confirm that 3,017 shares of stock in Medco Health Solutions, Inc., (Medco) were an asset of the Trust. Medco was not mentioned in the assignment of stock signed by the Trustor on October 29, 2009. Appellants declared that the Medco shares "were not held in the Trust's brokerage account at the time of the Trustor's death." Appellants further declared that the stock certificate for the Medco shares had been lost and that the shares had a market value in excess of $100,000. Appellants contended that, based on the General Assignment, "it was the intent of the Trustor that all stock owned by the Trustor, including the Lost Certificate Shares, be part of the Trust Estate of the Trust." The record on appeal does not include any opposition to appellants' petition, and we assume that none was filed.

The probate court conducted a hearing on the petition. The record does not include a reporter's transcript of the hearing. In its written ruling, the probate court stated: "During oral argument . . . , counsel suggested that Probate Code section 15200 et seq. and 15207 [oral trust in personal property], in particular, provided a basis for granting the petition for order confirming assets in the trust estate. The Court has reviewed these code sections. The Court agrees that an oral trust can be created for personal property. If clear and convincing evidence is presented, the Court may conclude that an oral trust has been created. [¶] However, the Court believes that Probate Code section 15207 must be read in conjunction with Civil Code section 1624(a)(7). In those instances where the settler intends to transfer assets in excess of $100,000, a writing specifically describing the property is required. Accordingly, the petition confirming assets in the trust is denied."

Standard of Review

"The [probate] court's construction of the Probate Code is subject to our de novo review. [Citation.]" (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1124.) Because there is no conflicting extrinsic evidence as to the Trustor's intent, we independently review the written instruments at issue. (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73.) Since appellants have not provided a reporter's transcript of the hearing on the petition, "we must treat this as an appeal 'on the judgment roll.' [Citations.] Therefore, . . . [o]ur review is limited to determining whether any error 'appears on the face of the record.' [Citations.]" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324-325.)*fn2

Discussion

The probate court's reliance upon Civil Code section 1624, subdivision (a)(7), is misplaced. This section provides: "(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: . . . [¶] (7) A contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For purposes of this section, a contract, promise, undertaking or commitment to loan money secured solely by residential property consisting of one to four dwelling units shall be deemed to be for personal, family, or household purposes." The probate court's construction of this section is an error that appears on the face of the record." (Nielson v. Gibson, supra, 178 Cal.App.4th at pp. 324-325.)

" 'When construing a statute, we must "ascertain the intent of the Legislature so as to effectuate the purpose of the law." ' [Citation.] 'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.]" (State Farm Mutual Auto. Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)

Civil Code section 1624, subdivision (a)(7), cannot be construed as applying to the transfer of shares of stock to a Trust. The plain meaning of the words of the statute manifests a legislative intent to limit the statute's application to agreements to loan money or extend ...


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