Opinion
31299-21
04-14-2022
ESTATE OF JOANN MOLERO, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Maurice B. Foley Chief Judge
On November 29, 2021, a motion to be recognized as next friend was filed with respect to petitioner, who died prior to the filing of the petition in this case. That motion seeks to have JoAnn Molero's daughter, Leslie A. Bryan, appointed as decedent's next friend in order to prosecute this case on behalf of decedent. The motion states that no probate proceeding was commenced with respect to decedent's estate because JoAnn Molero and her husband Charles C. Molero, who predeceased decedent, had established a revocable living trust, of which Leslie A. Bryan is now the successor trustee. The motion was signed by decedent's other children, Frank Molero and Bryan Molero, indicating that they do not object to the granting of the motion. On April 8, 2022, a status report was filed on behalf of decedent. Attached to the status report is a copy of decedent's trust document, which sets forth information concerning the trust's successor trustee and the trustee's powers.
Rule 60(d), Tax Court Rules of Practice and Procedure, states in relevant part that "[a]n infant or incompetent person who does not have a duly appointed representative may act by a next friend * * *." Because petitioner is deceased, rather than being an infant or an incompetent person, a motion to appoint a next friend for decedent is not proper. However, the Court is satisfied that Leslie A. Bryan, in her capacity of successor trustee of decedent's living trust, is legally qualified to represent decedent in this litigation.
Upon due consideration of the foregoing, it is
ORDERED that the status report, filed April 8, 2022, is recharacterized as a first supplement to motion to be recognized as next friend. It is further
ORDERED that the motion to be recognized as next friend, as supplemented, is denied. It is further
ORDERED that, on the Court's own motion, Charles J. Molero and JoAnn C. Molero Revocable Living Trust, Leslie A. Bryan, Successor Trustee is substituted as petitioner in this case. It is further
ORDERED that the caption of this case is amended to read: "Charles J. Molero and JoAnn C. Molero Revocable Living Trust, Leslie A. Bryan, Successor Trustee, Petitioner(s) v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before May 6, 2022, Leslie A. Bryan, in her capacity of successor trustee of the Charles J. Molero and JoAnn C. Molero Revocable Living Trust, shall file a ratification of the petition filed to commence this case (see form attached). That ratification of petition may be filed in paper or electronically.