(Super. Ct. No. 34201000088985PRTRFRC)
The opinion of the court was delivered by: Hoch , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lawrence George Hash, who is currently serving a life sentence in state prison for a homicide not connected with this case, petitioned the probate court for production of documents and moved to reopen a testamentary trust (Hash Revocable Living Trust) originally established by his parents. The petition and motion were opposed by the successor trustee, James Hash, who is Lawrence's brother.*fn1 The probate court dropped from its calendar the motion to recalendar the hearing on the petition for production of documents and denied the motion to reopen the testamentary trust.
On appeal, Lawrence contends the trial court erred by (1) denying the motion to recalendar the hearing on the petition for production of documents because James hid the location of the funds held in trust for Lawrence, and (2) denying his motion to reopen the testamentary trust after James moved Lawrence's inheritance into a Totten trust.*fn2
We conclude that Lawrence's purported appeal from the denial of the petition for production of documents must be dismissed because the probate court has not yet granted nor denied the petition. As to the denial of Lawrence's motion to reopen the trust, it is appealable. However, the record shows that James acted within his discretion as trustee by safeguarding funds in order to give his brother a "fresh start" when released from prison. Accordingly, the probate court did not err in denying Lawrence's motion to reopen the trust.
FACTUAL AND PROCEDURAL HISTORY
Trust Assets for the Benefit of Lawrence
In 1990, Arthur Hash and Shirley Hash created a revocable living trust. When Arthur died in 2002, Shirley became sole trustee.
In 2003, Shirley amended the terms of the trust. In her amendment, she instructed the successor trustee to divide among her four children any trust assets remaining after her death. Her son, James was named as successor trustee. James and his brother David were to receive their shares of the trust "outright and free of trust." However, Shirley's other two children -- Lawrence and Donald -- were to receive their shares in a lifetime trust. As to Lawrence, the amended trust provides:
"One-Fourth (1/4) of the Estate shall be held in a lifetime trust for the benefit of LAWRENCE G. HASH, whose birthdate is May 2, 1957, as outlined forthwith, My Trustee shall hold, manage, invest and distribute the Trust Estate in trust for LAWRENCE G. HASH, for his lifetime. During the term of this trust, my Trustee shall distribute income and principal, if income is insufficient, to said beneficiary for his respective health, maintenance, support, education, comfort and welfare. My Trustee may make such distributions of income and principal to the beneficiary as my Trustee determines is reasonable and appropriate under circumstances known by my Trustee to be relevant to the making of any such distributions." (Italics added.) At the time Shirley conferred the successor trustee with this discretion, she was aware that Lawrence was serving a life sentence in prison.*fn3
Shirley died on April 15, 2008, and was survived by all four of her children. James became successor trustee and liquidated Shirley's estate.
Lawrence began a lengthy exchange of letters with James about the proceeds of the lifetime trust established for him by Shirley. Lawrence began the exchange by stating that his assets were combined with those of his parents (presumably after his incarceration) and that Shirley promised a defense fund of $60,000 for him. Lawrence also wanted more information about where his trust assets were being held. James's wife responded that Lawrence was entitled to a quarter of his mother's estate and detailed the assets comprising that estate. James also responded that he had no knowledge of any combining of assets, but that such combining would make no difference because substantially all of the estate was derived from the sale of Shirley's home and annuity. James also pointed out that no testamentary documents mentioned a defense fund for Lawrence. Finally, James noted that another $58.50 would be deducted from Lawrence's trust due to an unpaid bill owed by Shirley.
In January 2009, Lawrence wrote to James to urgently request his inheritance because "[s]omething has come up . . . ." Lawrence followed up with additional letters inquiring about the inheritance. James's wife responded that Lawrence could have the money sent anywhere he wanted but that James needed a "notarized letter directing us as to how to dispose of your funds . . . ."
In a subsequent letter, James's wife explained that they were not accepting Lawrence's collect calls from prison because the calls were very expensive. She further indicated that James did not want to be responsible for Lawrence's inheritance and was looking forward to transferring the money to an account to be indicated by Lawrence.
James and Lawrence exchanged more letters. At one point, Lawrence instructed that his inheritance be given to a person named Sandi Meyer who was traveling from Oregon to help with "this transaction." James answered that he would transfer the money to anyone Lawrence wished, but that a notarized letter was needed from Lawrence. He also stated, "[W]e do not appreciate your giving our telephone number to strangers without our permission. That is not the way to gain our favor or influence us to do anything for you. I do not care what your reasons may have been, it is not cool."
A month later, James wrote to Lawrence to explain: "After much thought and consultation, we have made a family decision regarding the disposition of your portion of Mom and Dad's estate. We feel that this is what Mom and Dad would want for you. [¶] All of your funds will be placed in a Trust Account, in your name. I will continue to be the trustee. The money will be held in trust, for you (all the while accruing interest), until such time that you are released from custody. That way, you will have a 'nest egg' built up for a fresh start in life. I am certain that this is what Mom and Dad had in mind, when they dictated their individual Wills and Testaments. [¶] I am pretty sure that this is not what you had in mind, but your history of poor judgment when it comes to dealing with attorneys and related concerns, leads the family to believe that this is the best course of action. [¶] The decision has been made and it is final." (Punctuation added.)
Lawrence answered that he still wanted to receive his inheritance immediately. James responded with a lengthy letter that concluded: "Your funds are on deposit in a local savings institution, earning 0.90% interest. The current balance is $69,597.05 as of 9-24-09. [¶] As directed by the Trust, your funds will be held in trust until your release. As required by the Trust, you will be advised twice each year as to your current balance. This notice is the first. They will follow each January and July. ...