Liccardo v. Mirabito

Opinion

COTTLE, J. —This in an appeal from an order setting apart a probate homestead pursuant to Probate Code section 6520.1 For reasons we shall explain, we reverse the order.

[964]Leonard Liccardo, an attorney, died on July 16, 1988, leaving his wife, Kathleen, who was eight months pregnant, and their two minor children. Liccardo also had four children from a previous marriage, all of whom were adults. On September 12, 1988, Kathleen filed a petition for probate of will in the Santa Clara County Probate Court. She was appointed the estate’s personal representative on October 17, 1988.

At the time of his death, Liccardo was being sued by one of his clients, Edmond Mirabito. Mirabito claimed Liccardo swindled him and certain members of his family out of over $2.5 million. On November 30, 1988, Mirabito filed a creditor’s claim against the estate based on the pending lawsuit. The claim was rejected.

Shortly before his death, Liccardo deeded his home, which was his sole and separate property, to himself and his wife as community property. After his death, Kathleen petitioned the probate court for a community property spousal set-aside order, determining property passing to the surviving spouse without administration pursuant to section 13500 and confirming property belonging to the surviving spouse pursuant to sections 100 and 101. The order was granted on December 23, 1988, and title to the home was thereafter placed in Kathleen’s name only.

In February 1990, a jury in San Mateo County returned a verdict, in the amount of $2,510,000, against the estate and in favor of Mirabito in his fraud action against Liccardo. On April 2, 1990, Mirabito recorded an abstract of judgment with the County Recorder of Santa Clara County.

On June 15, 1990, Kathleen, as the estate’s personal representative, filed the inventory and appraisement, listing assets of $8,266. Two weeks later, she petitioned the court to set apart a probate homestead for her and her three minor children pursuant to section 6520. The property she requested to be set apart was the family’s home in Saratoga which had passed to her in December 1988, without administration, pursuant to sections 13500, 100, and 101. Creditor Mirabito opposed her petition on grounds, inter alia, that the property was not in the probate estate and, thus, not within the probate court’s jurisdiction.