IN THE MATTER OF LORRAINE FITZPATRICK

SUPERIOR COURT OF CALIFORNIA COUNTY OF VENTURA Probate Notes 2023PRDE010134: IN THE MATTER OF LORRAINE FITZPATRICK 06/04/2026 in Department J6 Account and Report First and Final Report of Administrator etc. 1 Approve the final account and report. Approve $2,010.05 in costs reimbursement to counsel. (Local Rule 10.04(M)(4)(b), (c).) The proposed final distribution of the estate in equal shares to Lynn Fitzpatrick and Thomas Fitzpatrick is consistent with the terms of the will. The Court will approve $8,860 in statutory fees to Petitioner’s counsel Genene Dunn.

Counsel filed a spousal property petition on behalf of the prior executor, Richard Fehring, which was granted on 3/28/24. The spousal property order ruled that Mr. Fehring was entitled to 20% of the proceeds from the sale of the real property located at 1611 Valecroft Ave., Westlake Village, and that this interest passed to him outside of this administration. Accordingly, the value of the estate for purposes of fee calculation is 80% of $1,465,000, or $293,000. (Estate of Bonanno (2008) 165 Cal.App.4th 7, 21 [stating that granting spousal property petition reduced the size of estate which in turn reduced statutory commissions].)

Counsel contends that the prior executor elected to subject his share of the estate to administration by filing the I&A which included a 100% interest in the Westlake Village real property. However, an election under Probate Code section 13502 must be made in a “writing specifically evidencing the election” and filed in this proceeding within 4 months after the issuance of letters. (§ 13502, subd. (b).) No such writing was filed within 4 months of the issuance of letters in this case on 9/29/23.

Counsel argues that the case Estate of Phillips (1954) 123 Cal.App.2d 570, 574 supports her position. Phillips did not involve a spousal property petition. Instead, it involved a widow’s election to take against her deceased husband’s will. Further, the court in Phillips found that “[t]he wife’s one-half of the community property is by the statutes made subject to administration and, impliedly at least, to the costs of administration.” (Phillips, supra, 123 Cal.App.2d at p. 573 [emphasis added].)

Here, Mr. Fehring’s 80% of the estate was determined not to be subject to administration. (Estate of Liccardo (1991) 232 Cal.App.3d 962, 966 [the spousal property petition scheme permits property to pass to surviving spouse without administration and kept the property out of the probate estate].)

2023PRDE010134: IN THE MATTER OF LORRAINE FITZPATRICK

2 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.) Lastly, the Court notes that counsel filed the spousal property petition for her client Mr. Fehring. If there was any oversight re the effect of a spousal property order on statutory fees, counsel appears to have been responsible for that lapse, no one else.