Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KP010646, Thomas C. Falls, Judge.
Law offices of Samuel L. Hart, Samuel L. Hart for Petitioner and Appellant.
Selters & Selters and J. Benjamin Selters for Objector and Respondent.
ALDRICH, J.
I
INTRODUCTION
Appellant Laura Louise Norene (Norene) appeals from an order denying her petition to determine heirship. In denying the petition, the probate court ruled that it was untimely. We affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The preliminary facts and procedure
Doris Marilyn Pennington (decedent) died intestate on July 16, 2005. She was divorced and had no children. On September 28, 2005, the probate court appointed respondent Sandry L. Cass (Cass) administrator and issued to Cass letters of administration. Decedent’s estate was worth approximately $650,000.
Cass’s first account was approved by the probate court. Twenty known heirs of decedent filed receipts for distribution pursuant to a November 22, 2006, order of preliminary distribution. The heirs lived all over the country.
On April 11, 2007, Cass filed a second and final account and report and petition for statutory and extraordinary administrator’s commissions and attorney’s fees and cost reimbursement, for final distribution and for tax reserve. Cass represented that decedent had five aunts and uncles who all had predeceased decedent. Proper notice was sent to the 20 known heirs (the heirs of decedent’s aunts and uncles) that a hearing would be held on May 24, 2007. On May 24, 2007, the probate court issued an order approving the petition. On June 26, 2007, the probate court entered an order to that effect.
B. Norene’s appearance in the probate proceedings
On July 27, 2007, Norene filed a request for special notice of all matters in the proceeding.
On August 3, 2007, Norene filed a petition for determining heirship. Norene claimed that she was an heir of decedent because her father (John L. Zalewski) was decedent’s maternal uncle. Norene asserted that she lived in Alaska, and had no notice of decedent’s death until she was contacted on July 5, 2007. Norene attached to her petition 100 pages consisting of 49 exhibits that included a lineage chart as well as other genealogical information, such as death, obituary, and census reports.
Cass filed a petition for instructions and reply to Norene’s petition for determination of heirship. Cass stated that apparently Norene “is a first cousin of [decedent] on the maternal side.” Cass represented to the probate court that she had no prior knowledge of Norene’s existence and no reason to “not accept this individual as reported as a full cousin of the decedent.” Cass stated that the estate had not been distributed, pending further instructions from the probate court. Cass questioned, however, whether the probate court had the jurisdiction to set aside the distribution order.
A maternal cousin filed an objection to Norene’s petition, contesting Norene’s claim that she was related to decedent. The maternal cousin argued that Norene was not John L. Zalewski’s daughter. The maternal cousin also argued that Norene’s petition was untimely.
On November 21, 2007, the probate court held a hearing on Norene’s petition. Norene, Cass, and the maternal cousin made arguments based upon timeliness. Additionally, Norene made an equitable argument, asserting that the probate court should accept the petition as timely. Norene noted that there would be no prejudice if the petition were to be granted because the estate property had not been distributed. The court conceded that there was a factual issue as to heirship, but held as a matter of law that Norene was precluded from having her petition heard because it was untimely. On November 27, 2007, the probate court entered an order reflecting that it had denied Norene’s petition on November 21, 2007.
Norene timely appealed from the probate court’s order. We affirm.
III
CONTENTIONS
Norene first contends her heirship petition was timely. She argues that the June 26, 2007, order setting the second account for distribution was not final until the appeal period from that order expired. We hold that the probate court was correct in concluding, pursuant to Probate Code sections 11700 and 11704, subdivision (a), that the time for filing a petition for heirship ended when the order for final distribution was made. Norene also contends that trial court had the equitable power to consider her heirship petition, even if it was untimely. We hold that the probate court did not have the jurisdiction to grant equitable relief from the time deadline.
IV
DISCUSSION
The heirship petition was untimely and the probate court lacked the jurisdiction to consider Norene’s equitable argument.
Probate Code section 11700 et seq. details the procedures by which persons and personal representatives may seek to establish who is entitled to a distribution from an estate by filing a petition. Any interested person may appear and oppose a probate petition and file a written statement of that person’s interest in the estate. (Prob. Code, § 11702, subd. (a).) If a person fails to timely file a written statement, the person is precluded from participating in the proceeding and is bound by the decision rendered in the proceeding determining which persons are entitled to distribution and specifying the shares. However the interested person’s interest in the estate is not affected by the untimely filing. (Prob. Code, § 11702, subd. (b) ; Prob. Code, § 11705, subd. (a) [probate court “determines the persons entitled to distribution of the decedent’s estate and specifies their shares”]; Estate of Winnie (1959) 175 Cal.App.2d 698, 703-704 [addressing former statutes].)
Probate Code section 11702 reads:
Probate Code section 11700 requires petitions challenging a probate to be filed “before an order for final distribution is made.” (Italics added.) Probate Code section 11700 reads: “At any time after letters are first issued to a general personal representative and before an order for final distribution is made, the personal representative, or any person claiming to be a beneficiary or otherwise entitled to distribution of a share of the estate, may file a petition for a court determination of the persons entitled to distribution of the decedent’s estate. The petition shall include a statement of the basis for the petitioner’s claim.” (Italics added.) The probate court “shall not hear or consider a petition filed after the time prescribed in Section 11700.” (Prob. Code, § 11704, subd. (a).)
When an order for final distribution becomes final, it is conclusive as the rights of all interested persons. (Prob. Code, § 11705, subd. (b) [“When the court order becomes final it binds and is conclusive as to the rights of all interested persons.”]; Prob. Code, § 11605 [“When a court order made under this chapter becomes final, the order binds and is conclusive as to the rights of all interested persons.”]; Prob. Code, § 7250.) Once the order determining heirship becomes final, it is binding and appealable. (Prob. Code, § 1303, subds. (f), (g).) An appeal from such order must be filed within the usual time limits for appeals. (Cal. Rules of Court, rule 8.104.)
Probate Code section 7250 reads in part:
Probate Code section 1303, subdivisions (f) and (g) read: “With respect to a decedent’s estate, the grant or refusal to grant the following orders is appealable: [¶] . . . [¶] (f) Determining heirship, succession, entitlement, or the persons to whom distribution should be made. [¶] (g) Directing distribution of property.”
Here, Norene filed her petition in August 2007, after the order for final distribution was made in May 2007 and after the probate court entered an order to that effect in June 2007. Thus, it was untimely and the probate court could not hear nor consider it. (Prob. Code, § 11704, subd. (a).)
Norene contends she could file her petition prior to the period of time by which an appeal had to be filed. As we have just discussed, the time limits for filing a petition for heirship are set forth in Probate Code sections 11700 and 11704. Taken together, they establish that petitions to determine heirship must be filed no later than when the order of final distribution is made. Contrary to Norene’s argument, the statutes addressing finality (Prob. Code, §§ 11705, subd. (b), 11605, 7250) and the rule of court addressing the time frame during which an appeal must be taken (Cal. Rules of Court, rule, 8.104) are separate and apart from those procedures establishing the time frame in which an heirship petition must be filed.
Thus, the trial court did not err when it concluded that Norene’s heirship petition was untimely.
During oral argument on her petition, Norene requested the probate court accept her petition as being timely filed, noting that there would be no prejudice because the estate had not been distributed. Although not precisely framed, Norene was asking the probate court to exercise its equitable powers to grant her relief from the time restrictions contained in Probate Code sections 11700 and 11704 and permit a hearing on her heirship petition. On appeal, Norene contends that the probate court erred in declining to consider her equitable argument that she should be granted relief from these time restrictions.
The usual civil procedure rules apply in probate proceedings unless there are specific Probate Code provisions addressing the subject. (Prob. Code, § 1000.)
Probate Code section 1000 reads in part: “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions . . . apply to, and constitute the rules of practice in, proceedings under this code.” (Italics added.)
Here, Probate Code sections 11700 and 11704 established the time restriction for filing an heirship petition. By these statutes the Legislature granted the probate court the jurisdiction to resolve heirship issues and outlined the procedures to be followed, including the applicable time limitations. (In re Burton (1892) 93 Cal. 459; Estate of Ward (1954) 127 Cal.App.2d 207.) Since there are no indications there was fraud, conspiracy, or misrepresentations (cf. Prob. Code, § 7250, subd. (c)), the order distributing the property was final and conclusive and the probate court lacked the jurisdiction to consider Norene’s plea for equitable relief.
V
DISPOSITION
The order denying Laura Louise Norene’s petition for determine heirship is affirmed. Appellant Laura Louise Norene is to pay all costs on appeal.
We concur CROSKEY, Acting P. J. KITCHING, J.
“(a) Any interested person may appear and, at or before the time of the hearing, file a written statement of the person’s interest in the estate. The written statement may be in support of, or in opposition to, the petition. No other pleadings are necessary and the written statement of each claimant shall be deemed denied by each of the other claimants to the extent the written statements conflict.
“(b) If a person fails timely to file a written statement:
“(1) The case is at issue notwithstanding the failure and the case may proceed on the petition and written statements filed by the time of the hearing, and no further pleadings by other persons are necessary.
“(2) The person may not participate further in the proceeding for determination of persons entitled to distribution, but the person’s interest in the estate is not otherwise affected.
“(3) The person is bound by the decision in the proceeding.”
“(a) When a judgment or order made pursuant to the provisions of this code concerning the administration of the decedent’s estate becomes final, it releases the personal representative and the sureties from all claims of the heirs or devisees and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order. For the purposes of this section, ‘order’ includes an order settling an account of the personal representative, whether an interim or final account. “ . . .
“(c) This section shall not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment as to any material fact. For purposes of this subdivision, misrepresentation includes, but shall not be limited to, the omission of a material fact.”