Opinion
A156410
06-03-2020
Estate of ROBERT E. LUND, Deceased. LILLIAN M. LUND, as Administrator, etc. Petitioner and Respondent, v. RODNEY E. LUND, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RP16806999)
Rodney E. Lund appeals from several orders concerning the distribution of his father's (decedent Robert Lund's) estate. He contends the probate court erred by (1) approving the sale of Robert's real property; (2) approving an unequal distribution of the proceeds from the sale of the property; and (3) approving certain attorney fees. We conclude Rodney's appeal as to the first two orders is untimely, and even if it were timely, his claims are meritless. We conclude his challenge to the fee order is also wholly lacking in merit.
We refer to the Lunds by their first names to avoid confusion.
Background
Robert died intestate on December 26, 2015. He was survived by his wife, Lillian Lund, and his three sons, Kurt Lund, Christopher Lund, and Rodney Lund. Lillian petitioned for probate and to administer Robert's estate, which was estimated as having a value of $4,496,192.
Rodney filed a competing petition to administer, and objected to Lillian's appointment on the grounds there was "[n]o evidence" Lilian was "ever the spouse of the Decedent," Lillian's appointment would create a "conflict of interest" between herself and the other heirs, and Lillian, then 83 years old, was too old, and he, then 45 years old, was "better equipped to succeed in getting the Estate in question probated within a more earnest fashion."
In her reply, Lillian declared she was of sound mind, she had been married to Robert for 19 years, and Rodney's claim she had a conflict of interest with the other heirs was "unfounded." She attached a copy of the couple's marriage license and a copy of Robert's improperly executed will which stated Lillian should be named as executrix and Rodney was disinherited.
In her first account and report, Lillian stated Robert "signed what appears to be a Will disinheriting one of his sons, Rodney Lund." However, "he did not do so in front of two disinterested witnesses as required by California law."
At the June 2016 hearing on Lillian's petition, the probate court overruled Rodney's objections, appointed Lillian administrator, granted her full authority to administer the estate, fixed the bond, ordered $967,669.07 placed in a blocked account, appointed a probate referee, and scheduled a compliance hearing and a probate hearing. Letters of administration issued two days later.
Lillian subsequently filed an inventory and appraisal listing Robert's tangible personal property, securities and mutual funds, and real property—a house in Lake Almanor, California—that Lillian characterized as "50% quasi-community property." The matter was referred to mediation, and a hearing on the status of the mediation was set.
The parties later notified the court they could not reach a settlement through mediation, and Lillian petitioned for final distribution.
Lillian also filed a notice of proposed action regarding the Lake Almanor property. The probate referee had valued the property at $400,000 as of the date of Robert's death, and the property was subsequently listed for sale at $385,000.
In November 2017, almost two years after Robert's death, Lillian filed another inventory and appraisal indicating the Lake Almanor property had been reappraised by the referee at $340,000.
The following month, Lillian filed a report of sale and petition for order confirming the sale of the property at the new appraised value.
Rodney objected to sale on the following grounds: (1) the sale price was "too low for the market value of the property of $395,000," (2) the property had "been listed for sale for less than 60 days, and with little or no disclosed marketing of the property," (3) even though Lillian "indicated major repairs were required to be made before the property could be put on the market," (underscoring omitted) there was "no indication that those repairs decreased the market value" of the property from its fair "market rate" to the sale price, and (4) the property, in any event, "only needs some cosmetic improvements" and a "marketing plan." Rodney attached what appeared to be two e-mails from a realtor attaching comparative analyses of other homes sold in the Lake Almanor area the preceding year. This analysis listed 10 properties "which compare in size and approx age" to the Lake Almanor property wherein the median sale price was $376,000 and the average sale price was $362,914. The realtor opined "the probate court should hold out for more offers," given that the property had only been listed since October 15 and at the "end of the season."
Lillian filed a declaration by her own real estate agent. He stated that although Lillian had entered into an exclusive listing agreement with him to sell the property in July, that same month a "water pipe burst in the kitchen and flooded the home" and a "water leak in the garage" was discovered. It took several months to "coordinate with the insurance company/adjuster and Administrator" to complete the repairs. The property was then listed in October. In his experience, "[m]ost offers for real property in [the] Lake Almanor [area] are delivered within the first two weeks of listing," and after 30 walk-throughs of the property, he had received only one offer despite the property having been listed on the multiple listing service.
At the January 2018 hearing, the probate court was initially under the impression only a half-interest in the property was being sold and dismissed Rodney's claim the asking price was too low, stating, the administrator was "only selling 50%." Counsel's declaration "suggests that we're getting an extraordinarily low figure for this property. But we're only selling 50% of it." Lillian's counsel clarified the entire property was for sale for $340,000, reiterating that it had been listed for over three months on the multiple listing service and in the newspaper, over 30 individuals had walked through, but only one offer had been received. And although Lillian had been "hoping that this courtroom would be filled with overbidders today," counsel pointed out "it [was] not," so Lillian was still left with only the one offer and she and other heirs wished to close probate.
Rodney's attorney asked that the house remain listed, given "there has not been any indication of the urgency since they waited until October 15, 2017" to list it.
The probate court overruled Rodney's objection to the sale, stating there had been an adequate explanation for the delay ("damage to the property by some pipes breaking, et cetera, . . . had to be repaired") and there was "obviously some interest in moving this [a]long." The court then asked if there was anyone present in courtroom who wished to bid on the Lake Almanor property. After "[h]earing no objection," the court approved the sale for $340,000.
A month later, Lillian filed an ex parte application to confirm as invalid a 1992 quitclaim deed and a 1994 declaration of trust deed that had been discovered in the chain of title during escrow. These clouds on title needed to be resolved for the sale to close. Lillian's attorney explained in the application that Robert had "avoided using lawyers and instead created odd, invalid documents that purport to convey assets."
The Lake Almanor property had been purchased by Robert in 1990, with title then conveyed by grant deed from the prior owners to him, as "a single man." Two years later, in 1992, Robert purported to quitclaim his individual ownership to himself, as trustee of the Robert Lund Trust. Two years later still, in 1994, Robert again purported to transfer his ownership of the property, this time into a "Declaration of Trust." The purported 1994 transfer, which made no mention of the 1992 quitclaim deed, appeared to be an attempt "to create a new trust that gifts the property in equal share to two of his sons—Kurt Lund and Chris Lund—upon his death."
Kurt and Christopher consented to Lillian's ex parte application. Rodney was served with the ex parte application, but made no response. The probate court denied the ex parte application without prejudice to allow the parties to bring "a noticed petition."
The following month, on March 1, Lillian duly filed a petition pursuant to Probate Code sections 9832 and 9837, requiring court approval for "a compromise, settlement, extension, renewal, or modification which affects" "[t]itle to real property" or "[a]n interest in real property." (Prob. Code, § 9832, subd. (a)(1)-(2).) The petition sought an order confirming as invalid the 1992 quit claim deed and confirming as valid the 1994 declaration of trust deed. Although Rodney was not a beneficiary under either the 1992 quitclaim deed or the 1994 declaration of trust deed, he was served with the petition and the application for an order for a hearing thereon. He filed no opposition to the application for hearing, and the court set a hearing date.
The day before the hearing, Lillian notified the court the parties had reached a settlement resolving ownership issues as to the Lake Almanor property. She enumerated the issues "in dispute" as follows: (1) whether the 1994 declaration of trust created a valid trust or was an amendment of the 1992 trust (although "no 1992 trust has ever been discovered by the parties"); (2) whether the 1994 declaration of trust deed validly transferred the property since it made no mention of the 1992 quit claim deed; (3) whether, given Robert's and Lillian's subsequent 1996 marriage, Lillian was now an "inadvertent omitted heir"; (4) whether Robert "intended to amend the purported 1994 trust" given certain oral promises he made and the 2001 attempt at a will leaving the property to Lillian; and (5) assuming the 1994 declaration of trust was valid, whether the trust would own less than 100% of the Lake Almanor property because community property funds had been used to maintain and improve the property.
To resolve this litany of issues, Lillian, Kurt and Christopher had entered into a settlement agreement "to avoid a protracted battle over ownership of the Lake Almanor property." The operative provisions of the settlement included the following: Lillian's, Kurt's and Christopher's consent to the validity of the 1994 declaration of trust deed, Kurt's and Christopher's execution and transmission of quitclaim deeds conveying their interests in the property to Lillian; and Lillian's designating the property as Robert's separate property and including all of it in his estate. Lillian also agreed to "relinquish a percentage of her intestate share of the net proceeds of the sale" of the property, which would have been 33.33 percent, to Kurt and Christopher. As a result of all of the acts called for by the settlement, the final distribution of the sale proceeds would be as follows: Lillian, as surviving spouse, would receive 27.78 percent, Kurt would receive 25 percent, Christopher would receive 25 percent, and Rodney would receive 22.22 percent.
Rodney filed no written opposition to the petition. Nor did he appear at the hearing.
Only counsel for Lillian appeared at the April 25 hearing. The court stated counsel had "done great work in straightening this out for the Court, and so I'm signing one of her proposed orders to invalidate the Quit Claim Deed from 1992 and to validate the declaration of Trust from 1994 . . . pursuant to settlement of the parties."
In the meantime, Lillian had filed a corrected and final inventory and appraisal which recharacterized the property and the furnishings, furniture and personal effects within, as Robert's "100% separate property." The appraised value of the property remained $340,000.
Lillian had also filed a first account and report and petition for settlement, preliminary distribution, and for allowance of compensation to the administrator and attorneys for ordinary and extraordinary services and reimbursement of legal costs. She explained she had retained a tax attorney because it was "unclear whether decedent owes California income taxes for the period prior to this probate administration," and the estate needed an attorney to "dialogue with the California Franchise Tax Board to resolve the issue." As for fees for extraordinary services by the Korn Law Group, Lillian explained administration of the estate would likely continue through 2019, the firm had prepared for and attended the mediation, it had interfaced with gun dealers and drafted firearm transfer agreements, it had defended against Rodney's "allegations of invalid marriage," it had dealt with the repair and sale of the Lake Almanor property, and it had addressed some of the potential for California tax liability.
Robert's personal property included a substantial gun collection, which Rodney acquired after outbidding a potential buyer by $1.00.
Two months later, Rodney filed objections to the first account and report. He specifically objected to the fees sought in connection with his challenge to Lillian's marriage, asserting he "never filed a Petition challenging the invalidity of the marriage" and therefore nothing should "have triggered and caused the Administrator to have to do . . . extensive discovery." He further asserted that since this discovery "commenced after the mediation" and the "facts and events of a mediation are not admissible[,] then it follows attorney fees and costs incurred which arose out of facts learned at the mediation . . . cannot be reimbursable." He also objected to any fees incurred in connection with tax issues because the "Franchise Tax Board has never filed a claim against the Estate." And he objected to fees incurred in connection with the sale of the Lake Almanor property, claiming Lillian "should have sold [the property] without court approval, which would have necessitated no attorney fees being incurred." (Capitalization & italics omitted.) He did not, however, make any objection to the order granting Lillian's petition in connection with the settlement of the ownership issues pertaining to the Lake Almanor property.
In reply, Lillian maintained Rodney "never ceased his challenges" to her marriage to Robert, which started with his objection to her appointment as administrator on the ground there was no valid marriage, and continued in telephone calls and e-mails following the mediation reflecting an "on-going challenge of the wedding and Robert Lund's signature on the marriage application."
Before the probate court ruled on the first account and report, it appointed a special master to review it and advise the court. The special master recommended that Lillian file a second and final accounting "with the goal of making a recommendation to the Court for final distribution."
Lillian accordingly filed a second and final account and report, and a petition for settlement, final distribution, allowance of compensation to the administrator and attorneys for ordinary and extraordinary services, and reimbursement for legal costs (second and final account and report). The second and final account and report was supported by a declaration from her attorney describing the extraordinary services rendered and a declaration by the estate's tax attorney describing the services rendered in connection with the estate's income tax matters.
Rodney objected to the second and final account and report, renewing his objections for the compensation for extraordinary services. He also now objected, for the first time, to the distribution of the net proceeds of the sale of the Lake Almanor property on the ground he had not signed the settlement agreement. He now claimed the proceeds had to be distributed equally, and he was therefore entitled to 25 percent.
The special master reviewed both the first and second reports, as well as Rodney's "lengthy objections to [the] Administrator's actions." She recommended the court "settle, approve, allow and approve the first account."
Following a hearing, in an order filed December 3, 2018, the probate court overruled Rodney's objections and confirmed and approved both the first account and report and the second and final account and report. The court also approved final distribution and ordered certain fees payable, including extraordinary fees to the estate's tax attorney in the amount of $8,073 and to the Korn Law Group in the amount of $38,382.50.
In a notice of appeal filed February 1, 2019, Rodney purported to appeal from the following: (1) the January 30, 2018 order confirming the sale of the Lake Almanor property, (2) the April 25, 2018 order granting Lillian's petition pursuant to Probate Code sections 9832 and 9837 and confirming as invalid the 1992 quitclaim deed and confirming as valid the 1994 declaration of trust deed; and (3) the December 3, 2018 order approving the first and second accounts and reports.
Discussion
The Order Confirming Sale of Lake Almanor Property
Rodney's challenge to the January 2018 order confirming the sale of the Lake Almanor property is untimely. An order confirming sale of an estate asset is an appealable order. (Prob. Code, § 1300, subd. (a); Freeman v. McClung (1963) 217 Cal.App.2d 31, 33.) Here, the probate court filed its written order confirming sale of the property on January 30, 2018. Lillian gave notice of entry of the order the following day, January 31. Rodney therefore had 60-days from that date (i.e., until April 2, 2018) to file a notice of appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).) He did not file his notice, however, until February 1, 2019, long after the time to appeal had run.
We therefore have no jurisdiction to consider Rodney's challenge to the January 30, 2018 order confirming sale of the Lake Almanor property, and dismiss his appeal to the extent it challenges this order. (See Estate of Hanley (1943) 23 Cal.2d 120, 123; Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 [Court of Appeal has no jurisdiction to consider untimely appeal from an appealable probate order].)
Even if we had jurisdiction to consider his challenge to this order, we would reject it. Rodney insists the probate court accepted the $340,000 appraised value and sale price of the Lake Almanor property based on an erroneous belief Robert's "estate only owned 50% of the fee simple." What the record shows, however, is that while the court was initially under that misimpression, Lillian's counsel immediately clarified the matter. Counsel also explained the reasons for the appraised value and sale price, and the reason why the property had not been placed on the market earlier in the year. In short, Rodney cannot begin to show any abuse of discretion by the court in confirming the sale. (See Siegel v. Fife (2015) 234 Cal.App.4th 988, 999 [probate court order confirming sale of property is reviewed for abuse of discretion].)
The Order Granting the Section 9832 Petition and Invalidating the Quitclaim Deed and Validating the Declaration of Trust Deed
We also conclude Rodney's challenge to the April 2018 order granting Lillian's section 9832 petition and invalidating the 1992 quitclaim deed and validating the 1994 declaration of trust deed is untimely.
As we have recited, this order granted a petition by Lillian, wherein she identified Probate Code sections 1220, 9832 and 9837 as the bases for the petition. Probate Code section 1220 generally governs notice of petitions filed in the probate court. Probate Code section 9832 requires an administrator to obtain court approval of a "compromise" or "modification" affecting title to or an interest in real property. Probate Code section 9837 spells out specific procedures pertaining to a petition to approve a compromise or modification.
Probate Code section 9832 provides, in pertinent part: "(a) Except as provided in subdivision (b), authorization by order of court is required for a compromise, settlement, extension, renewal, or modification which affects any of the following: [¶] (1) Title to real property. [¶] (2) An interest in real property or a lien or encumbrance on real property." (Prob. Code, § 9832, subd. (a)(1)-(2).)
Probate Code section 9837 provides, in pertinent part: "(a) A petition for an order authorizing a compromise, settlement, extension, renewal, or modification under this chapter may be filed by any of the following: [¶] (1) The personal representative. [¶] . . . [¶] (b) The petition shall show the terms of the compromise, settlement, extension, renewal, or modification and its advantage to the estate. [¶] (c) Notice of the hearing on the petition shall be given as provided in Section 1220. (Prob. Code, § 9837, subds. (a)(1), (c), (b).)
In accordance with Probate Code sections 9832 and 9837, Lillian set forth in her petition the cloud on title caused by the 1992 quitclaim deed and the 1994 declaration of trust deed discovered during escrow. She subsequently notified the court the parties had reached a settlement of the numerous issues precipitated by these deeds as to ownership interests in the Lake Almanor property. Lillian further explained the terms of the settlement called for numerous acts, including invalidating the 1992 quitclaim deed and validating the 1994 declaration of trust deed, quitclaim deeds by Kurt and Christopher, and Lillian's designation of the property as "100%" Robert's separate property and including the entirety of it in his estate. She additionally set forth the distribution of the net sale proceeds that would flow from the provisions of this compromise.
In Estate of Lucas (1943) 23 Cal.2d 454, the Supreme Court ruled that an order approving a petition filed by the administrator asking for instructions to proceed with a proposed compromise of a claim against the estate, was appealable under former Probate Code section 1240 (now Prob. Code, § 1300, subd. (c) ). (Estate of Lucas, at pp. 458, 462-463.) Since no appeal had been taken from that order, it became final and barred the appellant's later objection to the first and final account based on payment of the compromised claim. (Id. at pp. 459-460, 462-463; see Estate of Redfield (2011) 193 Cal.App.4th 1526, 1528-1529, 1534-1535 (Estate of Redfield) [failure to appeal order approving settlement of will contest and dismissing Probate Code section 850 petitions that had claimed substantial cash assets were property of the estate, barred later objections to the accounting based on failure to include these assets in the estate].)
In 1997, the Probate Code was extensively revised, and as part of that revision, appeal provisions scattered throughout the code were consolidated into Probate Code section 1300. (See Cole, Chapter 724: The California Bar Association's 1997 Omnibus Probate Law Amendment (1997) 29 McGeorge L.Rev. 397, 409.)
Although Lillian cited to Probate Code sections 9832 and 9837 as the bases for her petition, she could have cited Probate Code section 850 as an additional basis. Probate Code section 850, subdivision (a)(2)(C) provides that the "personal representative or any interested person" may file a request for a court order "[w]here the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another." The statute thus "provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person." (Estate of Young (2008) 160 Cal.App.4th 62, 75.) This was what Lillian's petition and compromise sought to achieve and did achieve—resolution of all ownership claims to the Lake Almanor property and confirmation the property was entirely Robert's separate property and wholly in his estate. (See id. at p. 73 [administrator filed Probate Code section 850 petition to establish estate's interest in certain real and personal property held by certain trusts created by the decedent; petition sought accounting, that property be transferred to estate, and that title to the property be quieted].) An order adjudicating the merits of a Probate Code section 850 claim is appealable pursuant to Probate Code section 1300, subdivision (k). (Estate of Redfield, supra, 193 Cal.App.4th at p. 1534.)
That the title of the order—"Order Confirming As Invalid The 1) 1992 Quit Claim Deed; and Confirming As Valid The 2) 1994 Declaration of Trust Deed"—does not mirror the language of Probate Code section 1300, is not determinative of its appealability. "[A] probate order's appealability is determined not from its form, but from its legal effect." (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.) "An order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable." (Ibid.; Ross & Cohen, Cal. Practice Guide: Probate (The Rutter Group 2018) ¶ 3.577, pp. 3-160 to 3-161 ["Thus, regardless of its form or label, a probate order is appealable if it has the same effect as an order expressly made appealable by the Probate Code."].) When a challenged order is the only judicial ruling regarding the matter, and "[n]othing remains for judicial consideration," and there is "no other avenue for appellate review," then such circumstances justify treating the order as an appealable final judgment. (Estate of Miramontes-Najera, at p. 755.)
As we have discussed, the probate court's order had the substantive effect of approving Lillian's compromise resolving all issues pertaining to ownership of the Lake Almanor property, thus ensuring its inclusion in Robert's estate. Indeed, the order implemented the settlement, and effectively quieted title to the property, by decreeing that the 1992 quitclaim deed was invalid, and the 1994 declaration of trust deed was valid. It was also the final determination as to Robert's ownership of the property and its inclusion in his estate. Accordingly, absent a timely appeal, the order granting Lillian's petition for approval and implementation of the parties' compromise became final, precluding any further challenge to the settlement agreement and the state of the title resulting therefrom.
The probate court filed its order approving Lillian's petition on April 25, 2018. No notice of entry of the order appears in the record. Accordingly, Rodney had the maximum allowable time to appeal—180 days from the date of the order (i.e., until October 22, 2018). (Cal. Rules of Court, rule 8.104(1)(c).) His February 1, 2019 notice of appeal was well outside even this generous time to appeal. We therefore have no jurisdiction to consider his challenge to the April 2018 order, and dismiss his appeal to the extent he purports to appeal from it.
Even if we did have jurisdiction to consider Rodney's challenge to this order, we would conclude it was baseless.
Rodney maintains the probate court erred in approving the settlement between Lillian, Kurt and Christopher because it required that the net proceeds of the sale of the property be distributed "unequally," without his "written consent." Specifically, Rodney contends the distribution called for by the compromise—27.78 percent to Lillian, 25 percent to each Kurt and Chris, and 22.22 percent to him—constitutes "an unequal distribution" contrary to the dictates of Probate Code section 6402. He thus maintains the probate court should have ordered "that the gift of the additional six percent (6%)" by Lillian to Kurt and Chris, be "shared equally" among the three sons.
To begin with, under the doctrine of waiver and/or invited error, Rodney has foregone any claim of error on appeal in connection with the probate court's approval and implementation of the settlement. Rodney was served with Lillian's Probate Code section 9832 petition and all supporting documentation. He filed no written objections, and he did not appear at the hearing. Accordingly, he failed to preserve any claim of error in connection with the Probate Code section 9832 petition and the court's ruling thereon, and cannot advance any such claim of error on appeal. (See Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 66-67 ["As a general rule, issues or theories not properly raised or presented before the trial court will not be considered on appeal.].) The fact that Rodney eventually did make a claim of error by the probate court in granting Lillian's Probate Code section 9832 petition—in his objections to Lillian's second and final accounting and report, made more than seven months after the order granting Lillian's Probate Code section 9832 petition—came far too late. (See People v. Simon (2001) 25 Cal.4th 1082, 1103 ["as a general matter . . . a right may be forfeited by a party's failure to assert the right in a timely fashion"]; see generally Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 8:249 ["Appellants may be held to have waived a claim of error either by affirmative conduct or by failure to take proper steps in the trial court to avoid or cure the error."].)
Furthermore, Probate Code section 6402 was not implicated in any way by the distribution of the net sale proceeds called for by the compromise. Indeed, Rodney acknowledges Lillian was entitled to one-third of the net sale proceeds, with the remaining portion split between the heirs (Kurt, Christopher and Rodney). The remaining portion was split equally between the sons. The fact Lillian chose to gift a portion of her share of the proceeds to Kurt and Christopher, was of no consequence to the estate.
Probate Code section 6402 provides, in pertinent part: "Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows: [¶] (a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240." (Prob. Code, § 6402, subd. (a).) --------
The Order Approving Fees
Rodney's appeal from the December 2018 order approving, inter alia, final distribution and ordering certain fees payable is timely, and we therefore proceed to consider his challenges to certain of the approved fees.
Curing the Cloud on Title
Rodney contends that since the buyers purchased the Almanor Lake property " 'as is,' except as to title with no requirement that a Grant Deed or Warranty Deed be used to transfer," "[n]o extraordinary legal action was required to be taken by the Estate to cure the cloud on title" and the "2.4 hours . . . expended in clearing the cloud on title should be deducted from the extraordinary attorney fees awarded in the sum of $900."
California Rules of Court, rule 7.703 provides, "An award of extraordinary compensation . . . to the attorney for the personal representative is within the discretion of the court. The court may consider the amount of statutory compensation when determining compensation for extraordinary services." Examples of extraordinary services by an attorney include, but are not limited to, "Legal services in connection with the sale of property held in the estate." (Cal. Rules of Court, rule 7.703(a) & (c)(1).) Allowance of extraordinary fees is subject to the discretion of the probate court, whose determination will be upheld on appeal in the absence of a prejudicial abuse of discretion. (Estate of Heller (1992) 7 Cal.App.4th 862, 864; Estate of Billings (1991) 228 Cal.App.3d 426, 430.)
Rodney's complaint about the fees incurred in clearing title to the Lake Almanor property is specious. The title company refused to close escrow without a court order clearing the title. Accordingly, regardless of how the buyers styled their purchase of the property, the immutable fact remains the sale was not going to go forward unless title was cleared. The administrator and the estate's attorneys therefore had to prepare a Probate Code section 9832 petition to clear title and also resolve all ownership claims to the property through a settlement agreement. We share the sentiments expressed by the trial court, that counsel did "great work in straightening this out." Manifestly, there was no abuse of discretion in approving fees incurred in resolving all ownership claims and clearing title to the Lake Almanor property.
Defense of Lilian's Marriage
Rodney next contends attorney fees for defending the validity of Robert's and Lillian's marriage were unwarranted because the validity of their marriage was a "non-issue." (Italics & underscoring omitted.) According to Rodney, the only time he ever raised this "as a legitimate legal issue was in the initial stages" of the probate proceedings in opposition to Lillian's petition for appointment as administrator and in support of his own petition for appointment Rodney's assertion that the probate court abused its discretion in approving these fees is also utterly without merit.
As the special master observed in her report, "Rodney Lund complains that he never objected to his father's marriage to Lillian Lund in a pleading, ignoring that those objections were the basis of his competing petition for probate. Indeed, every pleading Rodney Lund has filed that Special Master has seen repeats Rodney Lund's suspicion that his father and Lillian Lund never married. He even repeats this allegation while complaining that he has never filed a pleading containing such an allegation. Specifically, he said [in his objection to the second and final account and report], 'As it turns out, there is no evidence in Court records that Lund was ever married to Decedent, and therefore she should not be entitled to any of the proceeds of the Estate of Robert E. Lund.' " (Capitalization omitted.)
Lillian likewise described an ongoing effort by Rodney to challenge the validity of her marriage to Robert. In support of her petition for appointment and opposition to Rodney's competing petition, Lillian produced her marriage certificate and declarations by two witnesses who attended the wedding. Nevertheless, Rodney continued to question the validity of her marriage throughout the remainder of the estate proceedings.
In short, abundant evidence supported the requested fees, and the probate court assuredly did not abuse its discretion in approving them.
Tax Attorney
Finally, Rodney contends fees for work by the estate's tax attorney were unwarranted because the "California Franchise Tax Board did not file a creditor's claim regarding this Estate." This assertion is also wholly without merit.
This fee request was supported by a declaration from Nancy Dooely, the tax attorney. She spent more than "23 hours rendering . . . services in connection with income tax matters on behalf of the decedent's estate," which included reviewing several years of files and tax returns, determining decedent's residency—he had lived in Nevada, Wyoming, and California in various years—conferring with his accountants and the estate's attorney, and communicating with the tax board.
We find near incredulous Rodney's suggestion it was ill advised for Lillian to retain the services of a tax attorney in connection with returns for an estate ultimately valued at more than $4 million and where the decedent lived in three different states over his lifetime. Lillian acted both reasonably and prudently in securing the services of a tax attorney, and the probate court acted well within its discretion in approving fees for these services.
Disposition
The appeal is DISMISSED to the extent it is from the probate court's orders dated January 30, 2018 and April 25, 2018. The order dated December 3, 2018 is AFFIRMED. Costs on appeal to respondent.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.