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Court of Appeal:
Trustee May Seek Determination of Distribution Rights
Panel Issues Two Opinions Dealing With Estate of High-Profile Criminal Defense Lawyer Barry Tarlow
By a MetNews Staff Writer
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Pictured is criminal defense attorney Barry Tarlow, who died on April 30, 2021. The Court of Appeal for this district on Thursday decided two appeals relating to a dispute in Los Angeles Superior Court over Tarlow’s estate. |
The Court of Appeal for this district has held that where a will creates a trust, the trustee has standing to file a petition to determine distribution rights, reversing a ruling barring a challenge to the way the siblings of celebrated criminal defense attorney Barry Tarlow, who died in 2021, want the assets of the estate divvied up, in alleged contravention of the testator’s wishes.
Justice Helen Zukin of Div. Four authored that opinion, as well as one other opinion, both unpublished, dealing with the conflict between the siblings and David Henry Simon, who had been Tarlow’s law partner in the early days of their respective careers and was named as trustee of a trust which, under the will, was to be set up. The opinions were filed Thursday.
Tarlow’s brother, Gerald Tarlow, and his sister, Barbara Tarlow Rapposelli, were each to receive half of the assets of the $66 million estate, after certain bequests were honored—which included $5.5 million to the law school at the University of California at Berkeley—with each of the siblings’ interests amounting to about $21 million. Gerald Tarlow was to be handed his inheritance “outright and free of trust,” but Rapposelli, now in her early 80s, was to have her half of the residue doled out to her by Simon, “for her support, maintenance, health and education,” as he deemed necessary.
Interest Disclaimed
Rapposelli disclaimed her interest in the trust, and Gerald Tarlow renounced his interest in the tangible personal property of the estate. That meant, under the terms of the will, that she would receive her brother’s share of the tangible personal property and he would get his sister’s entitlement to everything else.
These actions were recited by the siblings—who were co-executors (after Simon bowed out as named executor at their request)—in a petition for final distribution pursuant to Probate Code §11600. That, Simon protested, would circumvent what Barry Tarlow wanted: distribution of monies to Rapposelli from the trust, only when such appeared to be necessary and prudent, and instead eliminating the trust and the power to control distributions to her.
Simon filed a petition under Probate Code §11700. That section 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….”
Zukin’s Opinion
Los Angeles Superior Court Judge Jessica Uzcategu sustained a demurrer to Simon’s petition without leave to amend, ruling that he lacks standing. In her opinion reversing the ensuing judgment of dismissal, Zukin said:
“[W]hen a will creates a trust, the named trustee is the person entitled to receive the assets intended to fund the trust, and is therefore a ‘person claiming to be...entitled to distribution of a share of estate.’ Thus, the trustee ‘may file a petition’ and the court must then determine the validity of the trustee’s claim.”
She pointed to Probate Code §44 which defines “heir” as “any person…who is entitled to take property of the decedent by intestate succession under this code” and contrasted that with a “devisee” who, under §34(a) of that code, is “any person designated in a will to receive a devise.”
Zukin wrote:
“Where a will creates a trust, the trustee ‘is a devisee under the will’ because they are the person designated to receive the trust property from the estate and administer it according to the terms of the bequest.”
Probate Code §34(b)
She drew attention to §34(b) which says:
“In the case of a devise...to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.”
The justice declared:
“Here, because Simon is the named trustee of the Trust, he is a devisee under the will, entitled to receive and administer the trust property from the Estate, and therefore is a ‘person claiming to be...entitled to distribution of a share of the estate’ under section 11700. Thus, Simon is one of those persons who ‘may file a petition,’ under the statute….He has standing to proceed under section 11700.”
The case is Simon v. Tarlow, B333665.
Second Appeal
Simon not only appealed from the judgment of dismissal of his §11700 petition but also from Uzcategui’s orders distributing the estate assets to Gerald Tarlow and Rapposelli, as sought by their petitions under §11600. The appeals were not consolidated, and in Simon v. Tarlow, B334406, there was also a reversal because, Zukin explained, “a petition under section 11700 must be adjudicated prior to issuance of a distribution order.”
Under Probate Code § 11705(a), she noted, a judge, in acting on a petition under §11700 “determines the persons entitled to distribution of the decedent’s estate and specifies their shares.”
She set forth:
“Therefore, our decision that Simon is entitled to bring his section 11700 petition requires that the trial court’s subsequent contested distribution orders be vacated as well. After the court has ruled on the merits of Simon’s petition under section 11700, thereby deciding whether he is entitled to a distribution, it may again proceed to entertain petitions for distribution under section 11600.”
It emerged in the appeal that although Barry Tarlow had made a $1 million bequest to criminal defense attorney Marcia Morrissey who had been his live-in companion for more than 40 years, she wanted more and filed a creditor’s claim for $16 million. Gerald Tarlow and Rapposelli settled with her, paying $4.5 million.
Status hearings before Uzcategu are scheduled for May 13.
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