Last holiday season, the Second District Court of Appeals gives us the Bailey v. Bailey (B320664, filed October 10, 2023, Second District, Div. Six) case. Unfortunately, George Bailey does not get a wonderful life . . . erh . . . I mean, ending in the holding.
George Bailey’s brother James died and George filed a petition to probate James’ estate. The petition asked that George be appointed special administrator and served James’ only child, Mitchell Bailey, James’ sister, Theia Bailey, with notice of the Petition for Probate. The Petition for Probate noted that James’ died with no estate planning documents and the estate should be distributed through intestacy meaning it would all go to Mitchell, James’ son.
Before the hearing on the Petition for Probate, George found a Will signed by James which gave Mitchell a specific gift of stock, a cash gift to a friend, Olan Mills II (yes, there are a lot of famous names in this matter), and the balance going to various individuals, charities, and schools. The Will was lodged and notice of it was given to George, Mitchell, and Theia. At the hearing for the Petition for Probate, George informed the court that he did not intend to admit the Will for probate because he needed to be appointed immediately to pay debts and marshal the estate’s assets. George’s position was that the validity of the Will could be litigated while he handled the estate’s business. The court appointed George as administrator.
After the Letters of Administration were issued, George served the Will’s beneficiaries a document titled “Notice to Potential Beneficiary of Petition for Letters of Administration Under Probate Code 8226” which included a copy of the Will, the Petition for Probate, and the issued Letters of Administration. He then proceeded with administering the estate including filing an Inventory and Appraisal. The specific gift to Mitchell was of stock and the stock was not listed on the Inventory – this means that Mitchell would receive nothing from the estate under the terms of the Will. Olan then filed a petition to probate the Will. Mitchell objected to Olan’s Petition for Probate as being untimely filed.
Some of the key facts in the case surround the dates of notices and filings. The Petition for Probate was filed by George on November 6, 2020. I assume the notice of that petition, which was sent only to Mitchell and Theia, was sent soon after filing. When George lodged the Will, he only served it on Mitchell and Theia and that happened on December 22, 2020. The Notice to Potential Beneficiary was served on March 4, 2021. Mills Petition for Probate was filed on May 27, 2021. These dates are important given filing deadlines in the Probate Code.
Generally, under Probate Code §8000 a petition for probate of a will can be filed anytime after a person’s death. And a will can be admitted to probate even after a probate estate has distributed assets – the terms of the will, if admitted, will only govern distribution of the assets remaining to be distributed. However, Probate Code §8226 does limit the ability of someone to probate a will when that person has already received notice of a petition for letters of administration for a general personal representative. They must file a petition for probate of the will within 120 days after issuance of the order appointing an administrator (Probate Code §8226(c)(1)) or 60 days after the person obtains knowledge of the will (Probate Code §8226(c)(2)).
George took the position that his Notice to Potential Beneficiary sent on March 4, 2021 triggered both the deadlines in Probate Code §8226(c) and Olan’s Petition for Probate of the Will was too late – 84 days after Olan became aware of the Will. Olan argued that he was not served with Notice of the Petition for Probate filed by George prior to the hearing on that Petition, he was only served with documents after the hearing. The court strictly construed the general rule permitting a petition to probate a will at any time and opined that the legislature could have drafted the code section to include notice of post-hearing events if it intended the code section to have that meaning.
Ultimately, the court found that Olan’s petition was filed timely because he did not receive notice of the original Petition for Probate and the Notice to Potential Beneficiary served by George was not sufficient notice. The court stated that George should have amended his Petition for Probate and served it on all of the beneficiaries of the Will per Probate Code §8111 in order to invoke the deadlines in Probate Code §8226(c).
There are two takeaways from this case in my opinion. First, always notice everyone right away who is mentioned in a will or who may have an interest under intestate law. George’s mistake was not sending notice of the Will (or the Petition for Probate) when he lodged it as he only served it on the intestate heirs. And second, if you are aware of a will and you have an interest in it, move quickly to probate it (if necessary).
Now I need to go watch It’s a Wonderful Life and look at my Olan Mills family portraits from the 1980’s.