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Law School Case Brief

Estate of Earley - 173 Cal. App. 4th 369, 92 Cal. Rptr. 3d 577 (2009)


Prob. Code, § 8226, subd. (c), is a separate and coequal part of section § 8226; it is not subordinate to, or a subpart of, § 8226, subd. (b). The structure and language of the statute as a whole indicate that the filing deadlines in § 8226, subd. (c), are expressly incorporated into § 8226, subd. (b), but nothing in § 8226, subd. (b), affects the scope of § 8226, subd. (c). Accordingly, the filing deadlines apply not only to the situations covered by § 8226, subd. (b), but also to the situations described in § 8226, subd. (c), for example, filing a petition to probate a single will after a determination of intestacy.


James Peter Earley was found to have died intestate. Kathleen Anderson, the administrator of the decedent's estate, found a holographic will of the decedent.  More than five months after the determination of intestacy and more than three months after discovering the will, Anderson filed a petition to admit the will to probate. The Los Angeles County Superior Court, California, denied the petition on the ground it was untimely. Anderson appealed.


Was Anderson’s petition to admit the will to probate untimely?




The court concluded that the petition for probate of the will was untimely under Prob. Code, § 8226, subd. (c). Anderson discovered the will, first obtaining knowledge of it, on October 22, 2007. Under the 60-day rule of § 8226, subd. (c)(2), Anderson had until December 21, 2007, to file the petition to probate the will. In the alternative, the trial court determined the decedent to be intestate by order dated September 5, 2007. Under the 120-day rule of § 8226, subd. (c)(1), Anderson had until January 3, 2008, to file the petition. Section 8226, subd. (c), gave the Anderson the benefit of waiting until the later of those two deadlines. However, she filed the petition on February 19, 2008, more than a month late. The court declined the Anderson's invitation to interpret § 8226 as inapplicable to situations where a petition to admit a will to probate was filed after the trial court had made a determination of intestacy. The court reasoned that application of the filing deadlines in § 8226, subd. (c), to cases like the instant one should reduce the number of "surprise" wills that interrupted intestate proceedings.

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