Hernandez v. Marchi

Opinion

KING, J. In this case we hold that Probate Code sections 8465, subdivision (a) and 8402, subdivision (a)(4), preclude a decedent’s nonresident heirs from nominating the administrator of his estate.

San Francisco Public Administrator Ricardo Hernandez appeals from a probate order naming Gene Marchi administrator of the estate of Otto Damskog.

Damskog died intestate on August 9,1990, leaving as heirs two sisters and the children of a deceased sister, all residing in Norway. On September 12, Marchi, who had been acting for Damskog under a durable power of attorney prior to his death, filed a petition for letters of administration and authorization to administer Damskog’s estate. On October 26, Damskog’s [80]surviving sisters nominated Marchi as administrator. On October 29, Hernandez filed a petition for letters of administration followed by points and authorities in opposition to Marchi’s petition. Marchi responded with points and authorities in opposition to Hernandez’s petition and in support of his own.

After a hearing on November 21,1990, the trial court appointed Marchi as administrator of Damskog’s estate.1

“The court may appoint as administrator a person nominated by a person otherwise entitled to appointment or by the guardian or conservator of the estate of a person otherwise entitled to appointment. The nomination shall be made in writing and filed with the court.” (Prob. Code, § 8465, subd. (a).) “Notwithstanding any other provision of this chapter, a person is not competent to act as personal representative in any of the following circumstances: . . . HI] (4) The person is not a resident of the United States.” (Prob. Code, § 8402, subd. (a).)

Hernandez maintains the plain language of these statutes deprives Damskog’s sisters of the right to nominate the administrator of his estate, since they are not themselves—by dint of nonresidence in the United States—“otherwise entitled to appointment.”2 Marchi asserts the language of section 8465 is “less than clear” and bids us consider its legislative history. Such consideration leads us, reluctantly, to the same conclusion.

Probate Code section 8465 continues “without change” former Probate Code section 8465 which restated “without substantive change” provisions found in former Probate Code section 423. (20 Cal. Law Revision Com. Rep. (1990) pp. 1536-1537.) Probate Code section 8402 continues “without change” former Probate Code section 8402, subdivision (a)(4) of which restated “without substantive change” former Probate Code section 420. (20 Cal. Law Revision Com. Rep., supra at p. 1530.)