Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 25719. John D. Kirihara, Judge.
Cyril L. Lawrence for Objector and Appellant.
Charles Rayburn Wilson for Petitioner and Respondent.
OPINION
Kane, J.
Appellant Keschia Mia Eddy was appointed by the probate court to serve as special administrator of the estate of Alma Lubertha Wilkins (decedent). Appellant was the sole beneficiary of the estate under the will attached to appellant’s petition for probate. As special administrator, she retained legal counsel and took measures on behalf of the estate, including the recovery of real property in a quiet title action. Sometime later, appellant was replaced as special administrator by respondent Lawrence I. Wilkins, who became executor of the estate. Respondent had produced a second will naming respondent as the sole beneficiary of decedent’s estate, and also alerted the probate court that appellant had failed to notify all the heirs of her petition for probate under the first will. In a will contest, the probate court declared the second will to be decedent’s operative will and ordered it admitted to probate. Thereafter, respondent filed a second and final account as executor. Appellant objected because the second and final account failed to apportion any of the statutory compensation to appellant and her attorney for the ordinary services they performed for the benefit of the estate when appellant was acting as special administrator. The probate court approved the second and final account as filed, without any apportionment. Appellant appeals from that determination, contending the probate court’s failure to apportion the statutory compensation and attorney fees was an abuse of discretion. We agree and accordingly reverse.
FACTS AND PROCEDURAL HISTORY
Decedent executed a will on June 30, 2003, leaving her entire estate to appellant, her granddaughter (the first will). On August 25, 2003, and apparently unbeknownst to appellant, decedent executed a new will revoking the earlier one and leaving her entire estate to respondent, her nephew (the second will). Decedent passed away on January 24, 2006.
On July 3, 2006, appellant filed a petition for probate of the estate of decedent. Her petition attached a copy of the first will, asserting it to be decedent’s last will and testament. Appellant requested that she be named as special administrator of decedent’s estate with authorization to act under Probate Code section 10400 et seq., the Independent Administration of Estates Act. As set forth in her declaration in support of the petition, the primary reason appellant sought to be named special administrator of decedent’s estate was so that she could file a quiet title lawsuit against respondent to recover for the estate a parcel of residential real property that respondent improperly transferred to himself pursuant to a power of attorney. This parcel of residential real property was apparently the only asset belonging to decedent. On July 5, 2006, the probate court granted appellant’s petition and appointed her as special administrator of decedent’s estate.
Unless otherwise indicated, all further statutory references are to the Probate Code.
On July 6, 2006, appellant, as special administrator, filed an action in Merced County Superior Court to quiet title to real property, seeking to set aside a grant deed that was executed by respondent on August 12, 2005, pursuant to a power of attorney. Under the power of attorney, respondent had executed the grant deed and thereby transferred decedent’s residential real property from decedent, as sole owner, to himself and decedent as joint tenants. According to the quiet title complaint, respondent’s gift and transfer of the real property to himself was contrary to law and beyond the permissible scope of the power of attorney. The complaint further alleged the real property transfer should be set aside because the asset rightfully belonged to decedent’s estate.
On July 20, 2006, respondent lodged the second will with the probate court. As noted, the second will expressly revoked all prior wills and left all of decedent’s assets to respondent. Although respondent filed the second will, no other action was taken. Respondent did not, at that time, make a petition to admit the second will to probate or challenge appellant’s status as special administrator.
As stated in appellant’s opening brief, “[a]fter waiting almost one year for [respondent] to take action, ” appellant took the oath of office and filed her letters of special administration in July of 2007. Appellant then pursued the quiet title action against respondent and, on August 27, 2007, she obtained a stipulated judgment from respondent that set aside the grant deed recorded on August 12, 2005. Notice of entry of the stipulated judgment was filed on September 21, 2007.
Continuing to act as special administrator under the first will, appellant prepared the inventory and appraisal form and forwarded it to the probate referee, who completed his appraisal of the real property and entered that information on the form. The appraisal valued the real property at $315,000. The inventory and appraisal was filed with the probate court on February 6, 2008. On April 4, 2008, appellant filed her “First and Final Report and Account …, ” stating that the estate was ready to be closed, that appellant and her attorney should be paid statutory compensation and attorney fees under the Probate Code, and that the remainder of the estate should be distributed to appellant under the terms of decedent’s will. A hearing date for the probate court to consider approval of the first and final report and account was noticed for April 24, 2008.
On April 23, 2008, one day before the scheduled hearing, respondent filed a petition for probate of the second will. A copy of the second will was attached to the petition. Respondent sought to be named special administrator or executor of decedent’s estate, for purposes of administering the second will. He also sought to set aside the order admitting the first will to probate and the letters of special administration that were issued to appellant. Respondent’s supporting papers informed the probate court that appellant had only provided notice of the original probate proceedings (i.e., the petition for probate of the first will) to three of the nine existing heirs of decedent. According to respondent, such notice was inadequate as a matter of law and rendered appellant’s subsequent actions as special administrator “void.” Further, respondent noted that the second will expressly revoked all prior wills, which meant the will submitted by appellant was no longer operative.
At the hearing or soon afterwards, the probate court suspended appellant’s authority to act as special administrator and set a further hearing to allow appellant to file a will contest. On July 7, 2008, appellant filed a will contest objecting to the validity of the second will. Meanwhile, on July 11, 2008, respondent was appointed special administrator of decedent’s estate with the express qualification, “Will Contest Pending.” Letters of special administration were issued to respondent on July 14, 2008. The appointment was for the purpose of collecting rents and paying expenses related to decedent’s residential real property, and to prepare an account thereof. Pursuant to that appointment, respondent filed his first account on October 20, 2008. On October 23, 2008, the probate court upheld the second will and admitted it to probate. Respondent was then appointed as executor with full authority and was issued letters testamentary on November 3, 2008.
On November 25, 2009, respondent, as executor, filed his second and final account. Appellant filed objections to the second and final account, asserting that she and her legal counsel were entitled to a portion of the statutory compensation and statutory attorney fees for their ordinary services in administering the estate while appellant was acting as its special administrator. On February 18, 2010, the probate court granted a judgment settling the second and final account that did not apportion any of the statutory compensation to appellant or her attorneys. Appellant appealed from that judgment or order.
DISCUSSION
Appellant contends in her appeal that the probate court abused its discretion when it failed to apportion any of the statutory compensation and statutory attorney fees for ordinary services rendered by her and her attorney in the administration of decedent’s estate. We now consider that issue.
I. Standard of Review
We begin by ascertaining the applicable standard of review. Where, unlike here, a probate court actually apportioned the statutory compensation among two or more personal representatives of an estate, how that compensation was apportioned would be reviewed on appeal under the deferential abuse of discretion standard. (Estate of Buchman (1955) 138 Cal.App.2d 228, 234; Estate of Gonzales (1949) 93 Cal.App.2d 440, 442-443.) Likewise, where a probate court apportioned the statutory attorney fees for ordinary services among two or more attorneys for the personal representative(s), we would review the manner of that apportionment for abuse of discretion. (See Estate of McManus (1963) 214 Cal.App.2d 390, 400.) However, in this case, the probate court chose not to apportion the statutory compensation or attorney fees at all, even though there was more than one personal representative and attorney serving the estate. Appellant contends that decision was contrary to statute. We review the application of a statutory standard to undisputed facts under a de novo standard. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.) We also apply a de novo standard to mixed questions where, as here, legal issues predominate. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.) Accordingly, we will review the issue before us de novo.
II. Appellant’s Right to Apportionment of Statutory Compensation and Attorney Fees
Under the Probate Code, the personal representative of an estate and his or her attorney are each entitled to compensation for ordinary services rendered in administering the estate as a matter of right. (Estate of Johnston (1956) 47 Cal.2d 265, 272 [right to compensation “absolute”]; Estate of Buchman, supra, 138 Cal.App.2d at p. 235 [personal representative and attorney “entitled to” statutory compensation “as a matter of right”].) There are separate but parallel statutes governing the compensation of the personal representative of an estate and the compensation of the attorney for the personal representative. (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills & Probate, § 528, p. 606 [summarizing statutes].) Under section 10800, the compensation of a personal representative for ordinary services in administering an estate is a percentage of the value of the estate accounted for by him or her. The amount is sometimes referred to as the statutory commission. (Estate of Piercy (1914) 168 Cal. 750, 754 [statutory commission is paid once, but apportioned among all of the administrators]; Cal. Rules of Court, rule 7.704 [one “statutory commission” for the personal representative].) This provision for compensation is set forth in mandatory terms, stating that the personal representative “shall receive compensation” for ordinary services based on the percentage formula set forth in that section. (§ 10800, subd. (a).)
In parallel fashion, the attorney for the personal representative “shall receive compensation” for ordinary services, and the amount of such attorney compensation is also based on a percentage of the value of the estate. (§ 10810 et seq.) It is in fact the same percentage formula that is applicable with respect to the personal representative for ordinary services. The compensation paid to the attorney for ordinary services is sometimes referred to as his or her “statutory attorney fee.” (Cal. Rules of Court, rule 7.704(a).)
The Probate Code expressly provides for apportionment of the statutory compensation and statutory attorney fees for ordinary services where there is more than one personal representative or attorney. “If there are two or more personal representatives, the personal representative’s compensation shall be apportioned among [them] by the court according to the services actually rendered by each personal representative or as agreed to by the personal representatives.” (§ 10805, italics added.) A parallel section requires apportionment of the attorney compensation for ordinary services: “If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.” (§ 10814, italics added.) The Legislature’s use of the word “shall” indicates that the probate court is normally required to apportion the compensation. (Estate of Downing (1982) 134 Cal.App.3d 256, 268 [construing former § 901, upon which § 10805 is based]; accord, Estate of Gonzales, supra, 93 Cal.App.2d at p. 442 [where two or more executors or administrators, each “entitled” to a share of the statutory compensation].)
Here, appellant was appointed special administrator by the probate court. She administered the estate pursuant to the first will, presumably acting in good faith, until such time as respondent intervened and appellant’s powers were suspended or revoked. The fact that the authority of an executor or administrator has been terminated by the revocation of her letters does not affect her right to compensation for services previously rendered while acting in good faith. (Estate of Clark (1939) 33 Cal.App.2d 523, 527.) In such cases, the statutory compensation is apportioned between the successive personal representatives. (See, e.g., Estate of Gonzales, supra, 93 Cal.App.2d at p. 442 [public administrator replaced by executor; compensation apportioned between them]; Estate of Buchman, supra, 138 Cal.App.2d at p. 234 [compensation apportioned between executor and special administrator].) The same rule applies to the statutory attorney fees, such as where there are successive attorneys for an estate’s personal representative(s). (Estate of McManus, supra, 214 Cal.App.2d at pp. 399-400 [statutory attorney compensation apportioned between two attorneys].)
There is no indication in the record of a lack of good faith on appellant’s part.
We see no reason the statutory requirement of apportionment would not apply here. (§§ 10805 & 10814.) During the period of time that appellant served as special administrator, she filed a quiet title action against respondent that was successful in recovering real property belonging to the estate. She prepared an inventory and appraisal, advanced the probate referee’s fee and upon receipt of the completed appraisal, filed the inventory and appraisal, and then filed a first and final account. The fact that a second will was later admitted and appellant’s authority to administer the estate was revoked does not defeat her right to compensation for ordinary services previously performed in good faith. (Estate of Clark, supra, 33 Cal.App.2d at p. 526.) Appellant’s actions were clearly in the course of performing ordinary services on behalf of the estate and the administration thereof. Accordingly, even though appellant was subsequently replaced as special administrator by respondent, appellant and her legal counsel were entitled to an apportionment of the statutory compensation and attorney fees.
III. Notice and Other Issues
Respondent argues the probate court correctly denied apportionment of statutory compensation and attorney fees because a notice defect allegedly rendered void all the proceedings in which appellant acted as special administrator. Specifically, appellant gave notice of her petition for probate to three of nine total heirs of decedent (see § 8110 [notice of probate must be given to all known or reasonably ascertainable heirs of decedent]). Respondent cites Estate of Poder (1969) 274 Cal.App.2d 786, 789, for the proposition that a failure to give notice of a petition for probate to all heirs is a jurisdictional defect requiring the proceedings to be set aside. (See also 14 Witkin, Summary of Cal. Law, supra, § 387, p. 470 [notice requirements “jurisdictional” and a failure to comply “could render the resulting proceeding void”].)
Appellant gave notice to only three of decedent’s grandchildren. According to respondent’s papers filed in the probate court, there were a total of nine grandchildren. Decedent had one son, Theodore “Ted” Wilkins, who predeceased her. All of decedent’s grandchildren were fathered by Theodore “Ted” Wilkins, but apparently there were several different mothers.
We disagree with respondent’s conclusion. Where the identity and existence of a potential heir is unknown, the failure to give notice to the unknown heir does not deprive the probate court of jurisdiction. (Estate of Carter (2003) 111 Cal.App.4th 1139, 1149; Stevens v. Torregano (1961) 192 Cal.App.2d 105, 121; Lynch v. Rooney (1896) 112 Cal. 279, 287.) Here, there is no evidence or finding in the record that appellant knew of the existence and identity of the other potential heirs. Moreover, inadequate notice to heirs does not by itself establish a lack of jurisdiction unless the inadequacy appears from the face of the judgment roll. (Estate of Poder, supra, 274 Cal.App.2d at p. 790 [“it is not a jurisdictional defect to fail to give notice to an heir not listed in the petition”]; Farmers etc. Nat. Bk. v. Superior Court (1945) 25 Cal.2d 842, 846; Stevens v. Torregano, supra, at pp. 121-122; Murray v. Superior Court (1929) 207 Cal. 381, 385.) In the present case, the fact that there were other heirs in existence who had not received notice of appellant’s petition for probate was not evident from the face of the petition or judgment roll. Accordingly, the probate court was not lacking in jurisdiction and the proceedings were not void.
We reach this result for an additional reason as well. Even if improper notice might otherwise deprive a probate court of jurisdiction, an order or judgment will not be declared void if the complaining party waived the defect such as through making a general appearance. (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1081; Farmers etc. Nat. Bk. v. Superior Court, supra, 25 Cal.2d at p. 846; Estate of Poder, supra, 274 Cal.App.2d at p. 791.) We agree with appellant that respondent waived any notice defect when he filed with the probate court a copy of the second will and then subsequently filed his petition for probate of the second will. These were, essentially, general appearances by respondent. Thus, as far as respondent’s own claims are concerned, the issue of notice was waived by him.
In addition, respondent was served with the quiet title action and received the postpetition notice of hearing regarding appellant’s first and final report.
In passing, we observe that respondent was markedly inconsistent in his claim that the prior proceedings were rendered void. Respondent’s petition for probate of the second will expressly accepted the benefit of the previous publication of notice carried out by appellant, and also adopted the appraisal value of decedent’s real property as furnished under appellant’s tenure. In addition, respondent did not argue in his petition that the recovery of the real property in the quiet title action was voided, but he faithfully included that real property as an asset of the estate. Thus, respondent’s own petition confirms that he was not attempting to void all that came before. He was clearly accepting the benefit of past actions by appellant. In effect, he was proposing to take over the administration of the estate (under the second will), but not to completely start from the beginning as though all actions by appellant were nullified. This tends to confirm our conclusion that respondent waived any claim he may have had that the lack of notice rendered void all of appellant’s services.
For all of the reasons discussed above, we reject respondent’s contention that a jurisdictional notice defect voided all of appellant’s prior actions as special administrator. Under the circumstances, the lack of notice to the additional heirs did not void the proceedings undertaken by appellant or defeat appellant’s right (or her attorneys’ right) to an apportionment of the statutory compensation and attorney fees for ordinary services.
Finally, respondent argues that appellant was not entitled to a share of the statutory compensation or statutory attorney fees because appellant was allegedly acting as an adversary of the estate (see Estate of Elftman (1958) 160 Cal.App.2d 10, 15), and/or she was merely engaged in a personal contest over who would be the administrator with no actual benefit accruing to the estate itself (Estate of Bloom (1980) 107 Cal.App.3d 195, 201). We reject these characterizations of appellant’s actions as special administrator. Appellant carried out her duty to administer the estate under the first will until such time as she was relieved of that duty by the probate court. There was no finding by the probate court that she acted other than in good faith. Her actions included such beneficial services as recovering real property for the estate in the quiet title action, preparing and filing the inventory and appraisal, and obtaining the probate referee’s appraisal. Even the preparation of the proposed final account was, under the status of the proceedings at that time, an action taken in the furtherance of the administration of the estate under the circumstances.
Before respondent filed his petition for probate of the second will and the probate court determined it to be operative, appellant administered the estate under the first and only will that was (at that time) admitted to probate. She continued in that capacity until her power was revoked by the probate court. Although a will contest eventually occurred and the second will was ultimately admitted to probate and the first will rejected, that did not make appellant’s earlier actions while special administrator of decedent’s estate adversarial to the estate. Nor were her actions reducible to a mere contest about who would be administrator, since respondent’s petition and challenge to her status were not filed until after the ordinary services were rendered to the estate. Moreover, appellant concedes that her claim for statutory compensation and statutory attorney fees is limited to “her efforts prior to Respondent’s challenge, ” and she does not seek any compensation for the will contest.
In conclusion, we reiterate that the Probate Code requires apportionment of the compensation amounts for ordinary services where there is more than one personal representative or attorney. The clear mandate of these provisions bears repeating: “If there are two or more personal representatives, the personal representative’s compensation shall be apportioned among [them] by the court according to the services actually rendered by each personal representative or as agreed to by the personal representatives.” (§ 10805, italics added.) “If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.” (§ 10814, italics added.) Because the probate court failed to do so, we conclude that it abused its discretion.
As to the specifics of the apportionment of the statutory compensation and fee, that of course is left to the probate court’s considerable discretion. (Estate ofGonzales, supra, 93 Cal.App.2d at p. 443; Estate of Buchman, supra, 138 Cal.App.2d at p. 234.)
DISPOSITION
The judgment is reversed. Costs on appeal are awarded to appellant.
WE CONCUR: Dawson, Acting P.J., Poochigian, J.