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Law School Case Brief

Estate of Liccardo - 232 Cal. App. 3d 962, 283 Cal. Rptr. 839 (1991)


It is only from the probate estate that the court may select one property for a probate homestead.


Shortly before his death, attorney Leonard Liccardo deeded his separate property home to his wife, Kathleen, as community property. After his death, Kathleen was granted a community property set-aside order and the home passed to her without administration under the Probate Code. Subsequently, a jury returned a verdict for a large sum against the estate in a fraud action against Liccardo’s estate. Kathleen, as the estate's personal representative, then filed the inventory and appraisement. Shortly thereafter, she successfully petitioned the probate court to set apart a probate homestead for herself and the children in the home.  Creditor-objector Mirabito opposed her petition on grounds, inter alia, that the property was not in the probate estate and, thus, not within the probate court's jurisdiction. The probate court granted Kathleen and her children the probate homestead. Appellant-objector sought review.


Did the probate court have jurisdiction to impose a probate homestead on property that was not within its supervision and was not within the decedent's estate?




The Court of Appeal reversed the lower court's judgment, holding that the probate court lacked jurisdiction to set aside a homestead under the California Probate Code as to property that was not within the estate's inventory. There Court held that there was no real property within the probate estate which the probate court could select to set apart for a probate homestead. Moreover, the deadlines for amending the inventory to include the property in the probate estate had passed.

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