The Estate of Timothy Gallaher

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Amber Rosen, Presiding Audrey Nakamoto, Courtroom Clerk

191 North First Street, San Jose, CA 95113 Telephone 408.882-2120

PROBATE LAW AND MOTION TENTATIVE RULINGS DATE: August 31, 2026 TIME: 10:00 A.M.

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LINE # CASE # CASE TITLE RULING LINE 1 26PR202524 THE ESTATE OF TIMOTHY Click or scroll to line 1 for tentative ruling. Court GALLAHER will issue the final order.

LINE 2 LINE 3

Calendar line 1 Case Name: THE ESTATE OF TIMOTHY GALLAHER Case No.: 26PR202524

INTRODUCTION

Timothy Gallaher (“Decedent”) passed away on March 21, 2026. Patricia Upham, Decedent’s sister, and Christopher Upham, Decedent’s nephew, (collectively, “Petitioners”) filed a petition for probate in which they sought to be named co-executors of the estate. Shelby Luchesi-Gallaher (“Objector”), Decedent’s daughter, objected to Petitioners’ petition and filed a competing petition for probate and letters of administration with will annexed, seeking appointment of professional fiduciary Gary Emil Loebner, CLPF No. 010. At this time, no administrator has been appointed.

Currently before the court is Objector’s motion to compel third party Lincoln National Life Insurance Company (“Lincoln”) to comply with Objector’s deposition subpoena. Petitioners have opposed the motion and Objector has filed a reply.1 Lincoln has not opposed the motion.2 DISCUSSION I.

Procedural Background

On June 18, 2026, Objector served a subpoena on Lincoln seeking 19 categories of records related to Decedent’s 401(k) account, including communications between Petitioners and Lincoln related to the account and policies related to how to designate a beneficiary. On July 3, 2026, Petitioners served an objection arguing that no consumer notice had been served on the personal representative and that no personal representative had been appointed. Lincoln refused to produce the requested records on the basis of Petitioners’ objection. Objector filed the instant motion on July 16, 2026. II. Merits of the Motion

The parties’ main dispute in the litigation at this time is who should be appointed as personal representative. Objector takes the position that Petitioners have a conflict of interest that should prevent them from being appointed as personal representatives. (See Objector’s Objection to Petitioners’ Petition for Letters Testamentary, filed June 11, 2026, p. 2:11-13.)

1 Objector argues that the opposition was filed late and urges the court not to consider it. Here, the opposition was filed August 10, 2026, which is untimely for the original hearing date of August 20, 2026. (See Code Civ. Proc., § 1005, subd. (b) [opposition must be filed nine court days before the hearing on the motion].) Nonetheless, the court will consider the opposition as Objector was able to file a reply. (See Rules of Court, rule 3.1300(d) [court has discretion to consider untimely filings]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [same].) 2 This motion previously came on for hearing on August 20, 2026 at which time the court continued the matter to August 31, 2026 to allow Lincoln the full statutory notice period. (See Code Civ. Proc., § 1005, subd. (b).)

Specifically, as relevant to the instant motion, Objector contends that Petitioner Patricia Upham is claiming to be the beneficiary of the Lincoln 401(k), which Objector contends she is entitled to, and Petitioner Christopher Upham is Patricia Upham’s son and therefore would suffer from the same conflict. (Id. at p. 2:14-17.) Objector asserts that Decedent died without naming a beneficiary for the Lincoln 401(k) and therefore, she is entitled to it as the sole beneficiary of the estate. (Ibid.)

Before Decedent passed away, Patricia Upham told Objector that she was in possession of a beneficiary designation form for the Lincoln 401(k) that named Patricia as the beneficiary but she agreed with Decedent to hold the funds for Objector’s benefit. (Declaration of Shelby Luchesi-Gallaher in Support of Motion (“Shelby Decl.”), ¶ 3.) However, after Decedent’s death, both Objector and Patricia were told by representatives of Lincoln that no beneficiary was designated for the 401(k). (Id. at ¶¶ 6-7.)

Objector also contends that Patricia has recently manufactured a “loan” she allegedly gave to Objector in the amount of $100,000 and Patricia has indicated that she will take that amount, as well as an additional $88,000 Decedent allegedly stole from Patricia’s mother, out of the 401(k) proceeds. (Id. at ¶ 9.)

Petitioners now maintain that Gina Hughes, the Plan Administrator for Decedent’s employer, has confirmed that Patricia is the named beneficiary of the Lincoln 401(k). (See Declaration of Gina Hughes Re Decedent’s 401(k) Account, filed August 7, 2026, ¶¶ 4, 5 [indicating that Hughes was informed by Lincoln that there was a beneficiary designation form], 6, unlabeled attachment [notarized beneficiary designation form].) Hughes also declares that a Lincoln representative told her that the form was scanned or logged into their system in November 2025. (Id. at ¶¶ 5-6.)

The result of this dispute is that, at present, no administrator or personal representative has been appointed. Under these circumstances, there is no one with the present authority to obtain the records. (See, e.g., Prob. Code, § 9650 [personal representative is tasked with control over Decedent’s property].) If a party wishes to seek records from Lincoln, that party may petition to be named special administrator with limited authority to accomplish that taske. (See Prob. Code, § 8540.)3 The court takes no position on whether that should be done. Accordingly, the motion is DENIED. As the motion is denied, Objector’s request for sanctions is also DENIED.

3 That section provides:

(a) If the circumstances of the estate require the immediate appointment of a personal representative, the court may appoint a special administrator to exercise any powers that may be appropriate under the circumstances for the preservation of the estate. (b) The appointment may be for a specified term, to perform particular acts, or on any other terms specified in the court order.

(Prob. Code, § 8540.)