Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. A245581, Janet M. Christoffersen and Linda C. Martinez, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.)
Perna & Perna, Rosemary A. Perna and Camille A. Perna for Petitioner and Appellant.
No appearance for Claimants and Respondents.
OPINION
RYLAARSDAM, J.
Alexia Markarian filed a petition in the probate court to be appointed administrator of the estate of Jay Fursa, deceased. Because decedent did not reside in California and the only assets located in the state belonging to him consisted of personal property, the court questioned its jurisdiction to hear this matter and expressed concern for protecting the interests of any potential New York creditors. Markarian appeals from an order continuing the hearing on the petition and directing Markarian to initiate probate proceedings in the State of New York.
This case presents three issues for review. First, is the foregoing order appealable? Second, does a California probate court have jurisdiction to administer the estate of a nondomiciliary decedent? We conclude the answer to both questions is yes.
The third question is whether the probate court can order the initiation of probate proceedings in New York? On this point we conclude the probate court cannot condition the filing of this proceeding on the filing of an estate proceeding in New York, but may effectively do so by limiting distribution of the decedent’s California assets to the representative of his estate in New York. Thus, we reverse the probate court’s ruling with directions.
FACTS
Alex Fursa, decedent’s uncle, died in November 2005. Markarian is the administrator of the Estate of Alex Fursa, case No. A235065, now pending in the probate court of the Superior Court of Orange County. The assets of Alex Fursa’s estate consist of investments, certificates of deposit, and cash held in various accounts located in California.
In September 2007, Markarian filed a petition in the Orange County probate court to be appointed as administrator of decedent’s estate with the will annexed and for authority to administer it under the Independent Administration of Estates Act. (Prob. Code, § 10400 et seq.; all further statutory references are to the Probate Code unless otherwise indicated.) The petition alleges decedent was a New York State resident who died in the City of Binghamton, New York in July 2007. When he died, decedent allegedly held an interest in the assets of Alex Fursa’s estate valued at $492,000.
The petition attached a copy of decedent’s 1990 will appointing an uncle as administrator of his estate and leaving the entire estate to his sister. However, according to other documents attached to the petition and submitted in a supplement to it, both the uncle and sister predeceased decedent, with the sister leaving no living issue. It also alleged decedent left no surviving spouse, registered domestic partner, child, or issue of a predeceased child, and was survived only by issue of his grandparents. Finally, the petition attached statements from 18 of decedent’s living relatives nominating Markarian as administrator of his estate.
A supplement to the petition explained that Markarian considered “the possibility of initiating a probate in the State of New York,” but “due to the laws of [that state]..., it would have been necessary for [d]ecedent’s vested interest in the Estate of Alex Fursa to be immediately moved to... New York upon the appointment of a personal representative,” while California law required “a personal representative... [to] deposit funds belonging to the estate in a ‘financial institution in this state.’” Consequently, she alleged, “the Administrator of the Estate of Alex Fursa could not have moved the funds of [that estate] to the State of New York prior to the filing and approval of a Final Account and Report and Petition for Final Distribution.” Since “[t]he only property owned by [d]ecedent upon his death are the assets currently held in the Estate of Alex Fursa” and he “had no assets located in the State of New York,” Markarian chose “to save [decedent’s estate] the expense of having a probate initiated in the State of New York with an Ancillary Probate initiated in the State of California....”
The probate court held several hearings on this matter. During the first hearing, the court questioned California’s jurisdiction over a nondomiciliary owning only personal property located in this state and requested appellant’s counsel brief New York law on the issue. When counsel argued New York lacked jurisdiction over decedent’s assets in California, the court expressed its concern that maintaining the estate proceeding here would adversely affect any potential creditors of decedent in New York.
On January 23, 2008, the court entered a written order continuing the hearing on this matter, ordered Markarian “to initiate probate proceedings in the State of New York on behalf of [d]ecedent,” and that after “issuance of Letters of Administration to Petitioner in the New York State proceedings,” it would consider the current petition as an “ancillary proceeding.”
In subsequent declarations, Markarian’s counsel recited the difficulties, primarily financial, encountered in retaining New York counsel to commence a probate proceeding in that state. After a hearing in May, the probate court entered a minute order again continuing the matter and stating that “[i]f Petition for Probate is opened in New York, this matter will go off calendar.” On June 25, Markarian filed this appeal from the January 23 ruling.
DISCUSSION
1. Appealability of the Probate Court’s Ruling
The first issue is whether the January 23, 2008 order continuing the hearing on appellant’s petition and directing her to initiate probate proceedings in New York is appealable. Since the court clerk did not mail notice of this ruling to the parties and no party served a notice of the ruling, Markarian’s June 25 notice of appeal was timely under California Rules of Court, rule 8.104(a)(3).
The general rule is the only appealable rulings in probate proceedings are orders the Probate Code declares to be appealable. (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; Estate of Downing (1980) 106 Cal.App.3d 159, 163; Code Civ. Proc., § 904.1, subd. (a)(10) [“An appeal... may be taken from” “an order made appealable by the provisions of the Probate Code”].) But the appealability of a probate order is determined by its legal effect, not its form. (Estate of West (1912) 162 Cal. 352, 354; Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.) Thus, “[a]n 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. [Citation.]” (Estate of Miramontes-Najera, supra, 118 Cal.App.4th at p. 755; see also Estate of Martin (1999) 72 Cal.App.4th 1438, 1442-1443.)
Markarian relies on section 1303, subdivisions (a) and (b). Subdivision (a) authorizes an appeal from an order “[g]ranting or revoking letters to a personal representative,” while subdivision (b) permits an appeal from an order either “[a]dmitting a will to probate or revoking the probate of a will.” The probate court’s January 23 order did not expressly grant or revoke letters to Markarian or admit or revoke the probate of decedent’s will. But by imposing a precondition on its willingness to consider these requests, the probate court effectively denied the petition. “The primary Probate Code statutes governing appeals provide that an appeal may be taken... from the grant or refusal to grant... specified orders. By virtue of these provisions, the denial of any motion for an appealable Probate Code order is [also] appealable. [Citations.]” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 204, pp. 279-280; see also Estate of Alfrey (1938) 12 Cal.2d 255, 256 [order denying petition to be appointed executrix of estate appealable].)
The court’s intent to deny consideration of the merits of Markarian’s petition was reinforced by its subsequent May ruling that the present matter be taken off calendar upon the filing of a New York probate proceeding. Consequently, the probate court’s ruling is appealable.
2. California’s Jurisdiction of a Nondomiciliary’s Estate
The probate court doubted California’s jurisdiction over the estate because decedent’s only asset in this state, his interest in the estate of his predeceased uncle, is personal property. Markarian attacks the probate court’s ruling, arguing “it is clear that the [s]uperior [c]ourt... has proper original jurisdiction over [d]ecedent’s estate,” and that she could not be ordered “to initiate probate proceedings in the State of New York.
The probate court’s belief it lacked jurisdiction over the assets of decedent located in California was erroneous. Section 800 declares “[t]he court in proceedings under this code is a court of general jurisdiction and the court, or a judge of the court, has the same power and authority with respect to the proceedings as otherwise provided by law for a superior court, or a judge of the superior court....” The “jurisdictional facts” necessary to support the administration of a decedent’s estate consist of “(A) The date and place of the decedent’s death. [¶] (B) That the decedent was domiciled in this state or left property in this state at the time of death. [¶] (C) The publication of notice” as required by the code. (§ 8005, subd. (b)(1), emphasis added.) The Probate Code defines the term “property” to “mean[] anything that may be the subject of ownership and includes both real and personal property and any interest therein.” (§ 62.)
The probate court expressed the belief that since decedent’s interest in his uncle’s estate is “personal property... jurisdiction [over it] rest[ed] where the decedent is domiciled, and that’s... New York.” But while “the law of the domicile of a nonresident decedent determines the right to succession and distribution of the personal property of such person which has its physical situs in a foreign jurisdiction [citations], the existence of an estate belonging to a nonresident decedent in a foreign state may make it subject to an ancillary administration under the laws of such state. [Citations.]” (Estate of Glassford (1952) 114 Cal.App.2d 181, 189.)
Although the property in question consisted of decedent’s interest in his uncle’s estate, since the uncle predeceased decedent, title to the property passed to decedent upon his uncle’s death subject only to the administration of the uncle’s estate. (§ 7000; U.S. Fidelity & Guaranty Co. v. Mathews (1929) 207 Cal. 556, 559 [“the title of a decedent in and to the properties of his estate vests immediately upon his death in his heirs subject only to payment of the debts of the decedent, the funeral expenses, the family allowance and the expenses of administration”].)
In Estate of Glassford, supra, 114 Cal.App.2d 181, the decedent, a New York resident, traveled to California. During a four-month stay, she resided in hotels and apartments, paying on a day-rate basis, opened bank accounts and a safe deposit account, and stored a fur coat with a local department store. After she died at a local sanitarium, the public administrator petitioned for issuance of letters of administration and to probate her will and a codicil to it. Upon the objection of the decedent’s New York executors, the probate court found she was domiciled in that state and dismissed the California proceedings.
While upholding the probate court’s finding the decedent remained a New York resident until her death, the Court of Appeal reversed the dismissal of the California probate action citing the presence of her personal property in California and the policy of protecting local creditors. “It is generally recognized that each state is invested with plenary power to regulate the administration of the estates of deceased persons, so far as the property of such persons physically situated within its borders is concerned. [Citations.]... One of the dominant purposes of an ancillary administration is the collection and conservation of a decedent’s domestic assets for the benefit of local creditors. [Citations.] To prevent injury or inconvenience to local creditors, a state may refuse to permit the property of a decedent to be withdrawn from its borders until debts due such creditors have been satisfied. [Citations.]” (Estate of Glassford, supra, 114 Cal.App.2d at pp. 188-189; see also Robertson v. United States National Bank (1965) 235 Cal.App.2d 63, 65-66 [judgment for California administrator against local bank awarding an amount equal to balance in nonresident decedent’s accounts the bank transferred to decedent’s domiciliary executor affirmed; “The plaintiff had the right and the duty to request ancillary probate of the will of the decedent in California as there was property belonging to the decedent located in this state”].)
Acknowledging its authority to conduct an ancillary administration of decedent’s estate, the probate court apparently assumed it could only do so after probate proceedings had been instituted in New York. Ancillary administration of a nondomiciliary decedent is governed by Part 13 of the Probate Code, commencing with section 12500. Section 12501 defines “‘[a]ncillary administration’ [to] mean[] proceedings in this state for administration of the estate of a nondomiciliary decedent.” An ancillary proceeding may be filed by “[a]ny interested person” (§ 12510), and, except for special procedures applicable to the probate of a nondomiciliary’s will, “[n]otice of an ancillary administration proceeding shall be given and... the same proceedings had as in the case of a petition for probate of a will or appointment of a personal representative of a person who dies domiciled in this state.” (§ 12512.)
While the term ancillary means “[s]upplementary” or “subordinate” (Black’s Law Dict. (7th ed. 1999) p. 85, col. 2), nothing in either the foregoing statutes or California case law mandates the prior initiation of probate proceedings in the decedent’s state of residence. “Our statute provides for administration upon the estate of any nonresident who has died leaving property in this state.... The administration, though called ancillary to distinguish it from the administration of the last residence of the decedent, is wholly independent of it.” (Richards v. Blaisdell (1909) 12 Cal.App. 101, 110; Robertson v. United States National Bank, supra, 235 Cal.App.2d at p. 66.) “Generally speaking, a will should be submitted in the first instance to the forum at the domicile of the testator. But in California a probate court may acquire jurisdiction over the estate of a deceased person in either of two situations: the domicile of such person within the state, or the presence of assets within the state.... [¶] Similar statutes have been enacted in other states, and in applying them it has been held that the appropriate court of a jurisdiction in which assets of the estate of a nonresident testator are found may grant probate of his will even though the will has not been presented for probate in the state of his domicile. [Citation.]” (Estate of Estrem (1940) 16 Cal.2d 563, 567-568.)
But while Markarian is correct in arguing the probate court erred by refusing to consider her petition before the initiation of probate proceedings in New York, the victory is likely a pyrrhic one. Markarian acknowledges decedent “had no assets... in the State of New York,” and thus his estate consists solely of his interest in his uncle’s estate currently pending in this state. As noted, one basis for the probate court’s unwillingness to consider Markarian’s petition was its concern that maintaining the estate proceeding here would adversely affect decedent’s New York creditors.
Just as California’s objective in conducting ancillary probate administration of a nondomiciliary’s assets in this state is intended to protect local creditors by providing a means of ascertaining their existence and allowing for the satisfaction of any outstanding indebtedness (Robertson v. United States National Bank, supra, 235 Cal.App.2d at p. 66; Estate of Glassford, supra, 114 Cal.App.2d at p. 189), New York has an equally compelling interest in protecting the interests of decedent’s potential creditors in that state. Thus, section 12540, subdivision (a) declares “[i]f a person dies while domiciled in a sister state, the court in an ancillary administration proceeding may make an order for preliminary or final distribution of all or part of the decedent’s personal property in this state to the sister state personal representative if distribution is in the best interest of the estate or interested persons.” Furthermore, assuming Markarian’s allegation concerning the dearth of decedent’s assets in New York is correct, a very real potential exists that his estate in that state is insolvent. If so, section 12542 declares, “distribution may be made only to the sister state personal representative and not to the beneficiaries.” The goal of providing for decedent’s New York creditors cannot be sacrificed simply to avoid additional expense to decedent’s estate.
Consequently, while the probate court cannot condition its consideration of Markarian’s current petition on the prior institution of New York probate proceedings, it nonetheless may accomplish its goal of protecting decedent’s New York creditors by directing any distribution from decedent’s California assets be made solely to the New York representative.
DISPOSITION
The order of January 23, 2008 is reversed and the matter is remanded to the probate court with directions to consider appellant’s petition for appointment as administrator of the estate of Jay Fursa on the merits and for further proceedings not inconsistent with this opinion. The parties shall bear their own costs on appeal.
WE CONCUR: SILLS, P. J., MOORE, J.