Metropolitan News-Enterprise


Thursday, January 4, 2024


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Court of Appeal:

Decision in Probate Code §11700 Proceeding Wasn’t Preclusive

Determination That Two Brothers Were Each Entitled to Half of an Estate Did Not Bar a Later Finding That One Brother Had Earlier Assigned His Interest to the Other, Opinion by Justice Adams Says


By a MetNews Staff Writer


A determination in a proceeding pursuant to Probate Code §11700 that two brothers were each entitled to one half of the proceeds of an estate did not preclude a later determination, in ordering a final distribution, that one of those brothers had assigned his interest in the estate to the other, Div. Three of the Court of Appeal for this district has held.

That determination came on Tuesday in an opinion by Justice Rashida A. Adams. It upholds an order by Los Angeles Superior Court Judge Ana Maria Luna.

Luna on April 11, 2022 found that Donald Carmody has no interest in the estate of his nephew, Robert Allen Flores, despite the 2019 decision in the §11700 proceeding. She acted on the basis of his assignment in 2018 of his interest in the estate to his brother, John Carmody.

The two brothers were informed in 2018 by an heir-hunter firm, American Research Bureau, Inc. (“ARB”), that their nephew, Flores, had died intestate, offering its services to secure the assets for them. They did know that they had a half-sister, who was the mother of the decedent, and Donald Carmody thought that ARB was perpetrating a scam.

John Carmody, on the other hand, agreed that ARB would have one-fourth of his interest in the estate in exchange for its services. At ARB’s suggestion, Donald Carmody in 2018 assigned his interest in the Flores estate to his brother.

The following year, John Carmody filed a petition seeking a determination that he and his brother were the sole heirs, rather than more distant relatives, and his petition was granted.

Luna’s Ruling

John Carmody then died, and the surviving brother claimed that, on the basis of the 2019 decision, he should receive half of the proceeds from the Flores estate, amounting to $140,000. Luna ruled that the money would go to the executor of John Carmody’s estate and to ARB.

Sec. 11700 provides:

“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.”

Adams noted that “[t]his proceeding is permissive.”

Issue Preclusion

The determination in the §11700 proceeding did not have a preclusive effect, Adams said, explaining: “Here, the issue of the rights of any assignee to distribution of a portion of Decedent’s estate was not raised, submitted for determination, or decided in the section 11700 proceeding. Nor was it necessary to the October 2019 order. John’s petition to determine entitlement to estate distribution sought only a determination of heirs, not the rights of any person that were contingent on those of the heirs, or a finding as to all persons who may at some point be able to make a claim for distribution. While the probate court would have had jurisdiction to consider broader claims than heirship alone, no such claims were made, and they were not necessary to the court’s order determining the heirs and the percentages of interest based on intestate succession.”

The justice also found the evidence before Adams to have been inadequate render compelling a conclusion that John Carmody had rescinded his assignment.

Probate Code §11702

She also made note of Probate Code §11702 which says:

“(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….

“(b) If a person fails timely to file a written statement:


“(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.”

John Carmody filed the §11702 petition but did not file a statement of interest setting forth that he was an assignee of his brother’s interest. That failure, Donald Carmody argued on appeal, extinguished any rights under the assignment.

Adams responded:

“An interested person who fails to file a statement of interest may not participate further in the proceeding, “but the person’s interest in the estate is not otherwise affected.” (§ 11702, subd. (b)(2), italics added.) On its face, this language indicates that the failure to file a statement of interest does not amount to an automatic forfeiture of the interested person’s rights.”

She went on to say:

 “The underlying rights of the heir, devisee, or legatee to a share of the estate are conclusively determined in a section 11700 proceeding. But the rights of the assignee against the heir, devisee, or legatee arise by contract….If not raised in the section 11700 proceeding, the assignee’s rights against the heir, devisee, or legatee are not barred by the court’s order determining the persons entitled to a direct distribution of the estate. This is the meaning of section 11702, subdivision (b)(2): an interested person’s failure to file a timely statement of interest bars their participation in the proceeding but does not in itself affect their interest in the estate.”

The case is Estate of Flores, 2024 S.O.S. 91.


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