IN THE MATTER OF LORRAINE FITZPATRICK

2023PRDE010134: IN THE MATTER OF LORRAINE FITZPATRICK

surviving spouse without administration and kept the property out of the probate estate].)

Counsel also contends that the spousal property petition was merely a mechanism by which Mr. Fehring’s 80% share was distributed to him early. If a preliminary distribution was all that was needed, counsel should have filed a petition for preliminary distribution, not a spousal property petition. (Prob. Code, § 11620 et seq.)

In the Declaration filed on 6/3/26, counsel contends that this Court mistakenly fails to award fees based on the I&A value filed on 3/11/24. This argument ignores the reality that after the Court granted the spousal property petition on 3/28/24, the actual value of the assets to be administered in the estate was reduced to 20% of $1,465,000, or $293,000. Thus, the administrator should have filed a corrected I&A to reflect the change but did not. The Court previously overlooked the defect, as the amount of the reduction in value of the estate due to the spousal property order was clear. However, the Court will now order the administrator to file forthwith a corrected I&A showing the value of the estate without the assets distributed to Mr. Fehring pursuant to the spousal property order.

Counsel takes issue with the fact that the Court did not specifically address Estate of Lampman (1940)15 Cal.2d 212. Lampman does not aid counsel. In Lampman, the appellate court affirmed the trial court’s ruling that the amount of encumbrance on an estate real property should be excluded from the fee base. Further, the court went on to state:

“It should be noted, however, that the taking possession of property claimed as part of the estate of decedent is not the sole test, or the only essential factor to be taken into consideration in determining ‘the amount of the estate accounted for’ by the executor or administrator. An analysis of the decisions involving this particular question indicates that the crucial test is not so much the actual taking possession of the property, but the test is whether or not the executor or administrator is responsible for, or chargeable with, the property upon which commissions are sought.” (Lampman, supra, 15 Cal.2d at pp. 216-217 [emphasis added].)

Here, once the spousal property petition was granted by the Court on 3/28/24, the personal representative was no longer responsible for or chargeable with 80% of the estate distributed to him.

In re Ricard (1886) 70 Cal. 69, a case cited by the Lampman court, appears instructive. There, the executors took possession of certain real property,

2023PRDE010134: IN THE MATTER OF LORRAINE FITZPATRICK

inventoried it, and collected rent from that property. Later, the property was determined to not belong to the estate. The executors sought commission based on an amount that included the value of the property, and the appellate court ruled that the property should not be included in the fee base. The court stated:

“Admittedly, the executors took possession of the land, which was inventoried as part of the estate and appraised at seven thousand five hundred dollars. But the estate had no other interest in it than possession. That interest the executors took and maintained until it was taken from them by process of law; they have accounted for it, and were allowed commissions upon the rents which it yielded. But the land itself did not belong to the estate; it was therefore no part of its assets; and its value did not form any part of the value of the estate in the possession of the executors for which they were chargeable; therefore, as it was not legally included in the value of the estate taken into their possession and for which they had to account, they were not entitled to commissions upon it.”

(Ricard, supra, at pp. 71-72.) Similarly, the fact that counsel filed an I&A in this case that included the 80% which passed outside this administration is not determinative where the same 80% was shortly thereafter determined to pass outside this administration.

Counsel also invokes equity, referencing Bonanno. The equities involved in this case and those discussed in Bonanno are different, however. Counsel does not show that estoppel applies here. This case was commenced on 6/15/23, and the spousal property petition was filed on 2/7/24. The I&A was filed on 3/11/24. The Court granted the spousal petition on 3/28/24. The petition for final distribution was filed on 1/30/26. Thus, unlike in Bonanno, the spousal property petition was not filed near the closing of the estate, after years of administration, and after the spouse had obtained the full benefit of the estate being administered.

To the extent that counsel alleges that Mr. Fehring, the prior administrator, elected to subject his portion of the estate to administration, it has already been noted that the law requires a written election to be filed, which did not occur here. Further, in Bonanno, the personal representative’s attorney and the spouse’s attorney were not the same person. Here, counsel is the attorney who represented Mr. Fehring and is the attorney who filed the spousal petition for him. When counsel is the very person who filed the spousal petition, it does not appear unfair for her to be bound to the consequences of the petition.

Further, the Court notes that the petition to appoint successor administrator as well as the amended petition to appoint successor filed by counsel both stated that the estate was valued at $263,074. Thus, counsel previously acknowledged

2023PRDE010134: IN THE MATTER OF LORRAINE FITZPATRICK

that the estate’s value had decreased to about $263,000 after the spousal petition was granted. Under the facts of this case, the Court finds that estoppel is not shown, and equity does not prevent counsel from being subjected to the foreseeable consequences of a spousal petition.

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