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What pea is in which pod?  California probate disputes often involve questions of property ownership.  Petitions filed under Probate Code section 850 allow judges to determine whether and to what extent an estate is the true owner of specified property.

Yet how far can Section 850 petitions be stretched?  In Parker v. Schwarcz (2022) ___ Cal.App.5th ___, the Court of Appeal found that such petitions cannot be used as a vehicle to obtain a fiduciary’s file materials.

Daughters Seek to Conserve Their Mother

Cynthia Parker’s daughters claimed that she needed a conservator of her estate because she had access to large sums of money but could not manage her resources or resist fraud or undue influence.

In March 2021, a judge in Marin County Superior Court appointed Kim Schwarcz, a professional fiduciary, as the temporary conservator of Parker’s estate.  Schwarcz’s role was to protect Parker’s assets from loss pending a future hearing on whether a general (longer term) conservatorship should be granted.

The court later authorized Schwarcz to handle a severance agreement between Parker and her former employer and to handle real estate litigation.

The daughters amended their petition to seek Schwarcz’s appointment as general conservator of Parker’s person, claiming that she could not provide for her personal needs for health, nutrition, clothing or shelter, and that she could not give informed consent to medical treatment.

Parker, however, opposed the conservatorship of her person and estate, and demanded a jury trial, setting the stage for protracted litigation.

The parties went to mediation in September 2021.  To resolve the conservatorship litigation, they agreed on the creation and funding of an irrevocable trust that would be managed by a professional trustee other than Schwarcz.  Such a trust might be a less restrictive alternative to a conservatorship.  As part of the agreement, Schwarcz was to turn over the assets under her control to the trustee of the new trust.

Shortly after the court approved the settlement agreement, Parker’s counsel informally requested Schwarcz’s file materials regarding the conservatorship.  While the opinion does not provide the rationale for this request, presumably there were lingering concerns regarding Schwarcz’s handling of the matter.

Schwarcz’s lawyer rejected the request.

Parker’s Counsel Unsuccessfully Petitions Under Section 850

Probate Code section 850 allows interested parties to file petitions to recover property held by a fiduciary, i.e., a conservator, guardian, executor or trustee.  For example, a trustee of a trust may file a petition to claim that property held by a third party in fact belongs to the trustee.  Likewise, a third party may claim ownership over property held in the name of the trustee.

The statutory scheme gives the probate courts of California jurisdiction to decide such disputes.

Parker filed a petition under section 850 seeking an order compelling Schwarcz to hand over “all communications” between Schwarcz and anyone else relating to her service as temporary conservator, as well as all other documents relating to Schwarcz’s service as conservator.  Basically, the order sought would force Schwarcz to cough up her entire file to Parker.

The Marin County probate judge denied the petition after oral argument, finding that section 850 “does not authorize a Petition under these circumstances.”

The First District Court of Appeal agreed, observing that the case “presents an issue of first impression concerning the nature of ‘personal property’ interests that may be asserted in petitions brought pursuant to section 850. . . .”

After reviewing the legislative history and case law construing section 850, the appellate court found that the Legislature intended the statute “to provide a mechanism for probate courts to resolve ownership disputes with respect to personal property constituting assets of an estate,” not records of estate administration.

Per the appellate court, the statutory scheme “was designed to allow conveyances or transfers of real and personal property into or out of an estate, trust conservatorship or guardianship estate as part of an expedited court proceeding.”  Hence, section 850 is aimed at resolving property ownership disputes.

The communications and documents that Parker sought from Schwarcz “had no inherent value that could have funded the conservatorship or paid down Parker’s debts.”  They were not items Parker previously owned.

Thus, while what Parker sought might be described as “property” in a broad sense, it was not the type of property that the Legislature intended to be recoverable under section 850.

What Does Parker Teach Us About Section 850 Petitions?

Section 850 petitions are not boundless.  Parker tells us that the statutory scheme aims at assets that have some value.  If there is a pea worth counting, to whom does it belong?

Records of administration, on the other hand, document how the fiduciary performed.  If an interested party, such as a former conservatee, wants to pull back the curtain on how a fiduciary administered an estate, the party will be unable to rely on a section 850 petition.  Instead, the party will need to find an alternative legal basis (and there may be several) upon which to obtain the records.