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Estate of Hans Bartsch, Deceased. v. Norman Bartsch Herterich

March 22, 2011

ESTATE OF HANS BARTSCH, DECEASED. ARDNT PELTNER, AS EXECUTOR, ETC., PETITIONER AND RESPONDENT,
v.
NORMAN BARTSCH HERTERICH, OBJECTOR AND APPELLANT.



San Francisco County Super. Ct. No. PES-08-291846

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

CERTIFIED FOR PUBLICATION

Hans Bartsch died and willed his estate to particular family members and friends. He specifically left 14 percent of his estate to respondent Arndt Peltner and named him as the executor of the estate. Objector Norman Bartsch Herterich claimed he was the decedent's only son and sole heir to the entire estate. The probate court approved an interim award of attorney fees and costs incurred by respondent in the ongoing will contest. On appeal, objector contends the award of attorney fees is improper under Probate Code section 11704 because respondent is both an executor and an heir, and therefore is not impartial. We affirm because we determine under the circumstances of this case the personal representative or executor may participate "as a party to assist the court" under Probate Code section 11704, subdivision (b).*fn1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 18, 2007, decedent executed his last will and testament. In the document, decedent states "I declare that I am not currently married and I have had no children, stepchildren or foster children." The will names approximately 20 beneficiaries, including family members and friends, most of whom are said to reside in Germany. The will gives 14 percent of the estate to respondent, who is also named as the will's executor. It makes no provision for objector, and further provides: "I have intentionally and with full knowledge omitted to provide for all of my heirs and relatives who are not specifically mentioned herein, and I hereby generally and specifically disinherit each, any and all persons whomsoever [sic] claiming to be, or who may be lawfully determined to be my heirs at law, except as otherwise mentioned in this Will, and I direct that any claim or contest that may be made against the distribution of my estate by any person or persons be repudiated by my Executor, and if any beneficiary or other person shall make or file any contest to or seek to impair or invalidate any of the provisions of this, my Last Will and Testament, or shall conspire with or voluntarily assist anyone attempting to do any of those things, they shall be barred from receiving any bequest or benefit from my estate, direct or indirect, and if they successfully contest or claim, they shall receive the sum of ONE DOLLAR ($1.00) in lieu of any such bequest, benefit or award."

Decedent reportedly died on October 25, 2008.

On November 17, 2008, respondent filed a petition for probate of decedent's will and for letters testamentary.

On December 10, 2008, the probate court appointed respondent as the personal representative of the estate.

On April 1, 2009, objector filed a petition to determine distribution rights under section 11700 et seq. In his petition, he claims he is the only child of decedent and that he is entitled to succeed to decedent's entire estate under the laws of intestate succession. He alleges his mother had a relationship with decedent, resulting in objector's birth in May 1961, and that a court in a 1963 paternity proceeding found decedent to be his father and imposed child support obligations. He also alleges decedent either did not believe objector was his child or had forgotten that he was his child, rendering objector an omitted child under section 21622.*fn2 Objector's petition prays for an order directing the personal representative to distribute the entire estate to him.

On June 19, 2009, respondent filed an answer in his capacity as executor of the estate stating his opposition to objector's petition. None of the other beneficiaries have appeared in this matter.

On July 15, 2009, respondent filed a petition for an order approving an interim payment of his attorney fees and expenses. The petition relies, in part, on section 11704, subdivision (b), which provides that "The personal representative may file papers and otherwise participate in the proceeding as a party to assist the court." A declaration prepared by respondent's attorney states that $19,774.96 in fees and costs had been incurred to date in relation to the will contest filed by objector.

On September 25, 2009, objector filed a response and objection to respondent's petition for attorney fees and expenses. In his response, objector asserted that respondent should not receive payment from the estate for the services performed by his attorney because respondent is also a beneficiary and therefore is not an impartial personal representative.

On October 23, 2009, the probate court filed its order granting respondent's petition for an interim payment of attorney fees and expenses. This appeal followed.

DISCUSSION

I. Objector Has Standing To Appeal

Because objector's right to inherit his father's estate as an omitted heir under section 21622 has yet to be established in the underlying proceeding, we requested supplemental briefing from the parties on the issue of whether he has standing to ...


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