Determine Trust Assets
April 6, 2026 Dept. 9 Probate Tentative Rulings
5. 26PR0033 IN THE MATTER OF DAVID LEMOINE Determine Trust Assets
The Trust was executed on May 30, 2000. Settlor acquired a real property eleven years after executing the Trust documents, but did not record title to that property in the name of the Trust. The Trust provides:
Definition of Trust Estate. All property subject to this instrument from time to time is referred to as the "trust estate" and shall be held, administered, and distributed as provided in this instrument. The trustee shall hold, administer, and distribute the property described in the Schedule of Trust Assets (which is attached hereto and made a part of this trust instrument), any other property that may be hereafter subject to this trust, and the income and proceeds attributable to: David P. Lemoine Revocable Trust, all such property, in accordance with the provisions of this instrument.
Trust, Article Two, Section 2.1.
Additions to Trust. From time to time, the trustee may accept additions to this trust from any source. All such additions shall become part of the trust estate and shall be held, administered, and distributed in accordance with the terms of this instrument. That additional property shall become part of the trust estate on written acceptance of it by the trustee. Any additions to the trust shall be made by designating in writing the property to be added. However, the titling of any account, deed, or similar asset in the name of the trustee, as trustee of this trust, or any alternate or successor trustee acting under this instrument, shall be deemed to be a transfer to this trust. Any designation by a third party, whether by will, deed, account title designation, or similar transfer, shall also be a transfer to the trust estate.
Trust, Article Two, Section 2.2.
Settlor’s pour-over Will provides that the Trust is the sole beneficiary of any assets not held in the name of the Trust at the time of his death. Petition, Exhibit D. The real property that is the subject of the Petition is the only asset of decedent that was not in the name of the Trust at the time of his death.
Probate Code § 850 permits a trustee who has a claim to property, the title to or possession of which is held by another, to file a petition requesting that the court make an order pursuant to Probate Code § 856
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April 6, 2026 Dept. 9 Probate Tentative Rulings
claiming an interest in or having title to or possession of the property. When the matter concerns a decedent estate, notice shall also be given to any heir or devisee whose interest may be affected by the Petition in accordance with Probate Code § 1200.
Probate Code § 857 provides that in the event that the court issues such an Order:
(a) The order is prima facie evidence of the correctness of the proceedings and of the authority of the personal representative or other fiduciary or other person to make the conveyance or transfer.
(b) After entry of an order that the personal representative, other fiduciary, or other person execute a conveyance or transfer, the person entitled thereunder has the right to the possession of the property, and the right to hold the property, according to the terms of the order as if the property had been conveyed or transferred in accordance with the terms of the order.
* * *
Notice of the hearing and a copy of the Petition were mailed at least 30 days prior to the hearing, to each person claiming an interest in or having title to or possession of the property, as well as any heir or devisee whose interest may be affected by the Petition. The notice and Petition were mailed and filed with the Court on February 17, 2026.
Pursuant to Probate Code §850 and Estate of Heggstad (1993) 16 Cal.App. 4th 943, 947- 950, the Court finds sufficient evidence that decedent intended the above-mentioned assets be part of the Trust.
TENTATIVE RULING #5: ABSENT OBJECTION THE PETITION IS GRANTED AS REQUESTED. ANY PERSON WHO HAS AN OBJECTION MAY MAKE IT ANY TIME, EVEN ORALLY AT THE HEARING (PROBATE CODE § 1043).
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