NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

YEGAN, Acting P.J.

Lucinda Malott, daughter of and Executor of the Will of Carol N. Nantker, appeals from a judgment dismissing her Probate Code section 172001 petition for damages and reimbursement of $311,223 estate taxes paid to the IRS. The petition alleges that Montecito Bank & Trust (Bank), as trustee of a QTIP marital trust,2 negligently distributed trust assets to the remainder beneficiaries without making provision for the payment of estate taxes that appellant had to pay on behalf of the trust after Nantker died.

The trustee demurred, the trial court sustained the demurrer without prejudice to appellant's right to file an action for the same claim pursuant to section 20120. The judgment, which was signed by a different superior court judge, erroneously states the petition for damages/reimbursement "is dismissed with prejudice." (Emphasis added.) We decide the case solely on the basis of standing. We modify the judgment to state that the petition was dismissed without prejudice, and affirm the judgment as modified.

Facts and Procedural History

Frederick Nantker (Frederick), died on June 21, 1998, survived by his wife, Carol N. Nantker (Carol), and four children from a prior marriage.3 Frederick's will and codicil created certain trusts for the benefit of Carol and the children. The will provided that one trust, a marital trust (the Nantker Marital Trust FBO Carol Nantker), would be treated as a QTIP trust within the meaning of 26 United States Code, section 2056(b)(7). Bank was appointed trustee of the trust.

Pursuant to a 2001 stipulated order signed by Carol and Frederick's children, a QTIP election was made to defer payment of estate taxes on the property passing to the marital trust during Carol's lifetime. It gave Carol a lifetime beneficiary interest but federal law required that the QTIP property (i.e., the marital trust) be included in Carol's estate for estate tax purposes upon her death. (26 U.S.C., § 2044, subd. (a).) Frederick's will provided that, on Carol's death, any remaining money in the trust would be distributed to Frederick's children.

Following Carol's death on April 4, 2009, Bank distributed virtually all the trust money to the remainder beneficiaries without withholding $311,223 estate taxes due and owing on the QTIP property. Appellant, as the executor of Carol's estate, paid the unapportioned estate taxes and filed a section 17200 petition for damages/reimbursement.

Bank demurred and the trial court sustained the demurrer without leave to amend on the ground that appellant lacked standing to bring the section 17200 petition. The order on demurrer states the demurrer is sustained without leave, "but without prejudice to a separate civil action asserting the same claims pursuant to section 20120 or otherwise."

Section 17200 Beneficiary Standing

Section 17200, subdivision (a) provides that "a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust. . . ." Disputes concerning the internal affairs of a trust include proceedings "[c]ompelling redress of a breach of the trust by any available remedy." (§ 17200, subd. (b)(12).) A "beneficiary" is defined by section 24 as follows: "`Beneficiary' means a person to whom a donative transfer of property is made or that person's successor in interest, and . . . [¶] (c) As it relates to a trust, means a person who has any present or future interest, vested or contingent." (Emphasis added.)

Although Carol was a lifetime beneficiary, the beneficiary interest terminated on her death. As a matter of common sense, "[a] person who has already died cannot be a trust beneficiary." (Scott & Ascher on Trusts (5th ed 2006) § 12.1.3, p. 701.)

Here the petition seeks damages/reimbursement for estate taxes paid after Carol's death. Because the tax obligation arose after Carol's beneficiary interest terminated, it is not an action by a beneficiary with a present or future interest in the trust. (§ 24, subd. (c).) The petition is tantamount to a claim against Carol's estate. But a creditor does not have standing to the file a probate petition. (§ 17200, subd. (b)(20).)

Successor In Interest

Appellant asserts standing to file the petition as a successor in interest to Carol's lifetime beneficiary interest. The argument fails because Carol had no claim for damages or reimbursement of estate taxes before she died within the meaning of the California survivor statute. (Code Civ. Proc., § 377.30.)4

In Elliot v. Superior Court (1968) 265 Cal.App.2d 825 the lifetime beneficiary (Mrs. Logan) of a testamentary trust petitioned for instructions to increase trust payments for support and medical expenses. Mrs. Logan died before the petition was heard and her special administrator filed a second petition to pay funeral bills and other expenses incurred before Mrs. Logan's death. (Id., at p. 829.) The trial court found that Mrs. Logan's death mooted the petitions and that it lacked jurisdiction to hear the matter. (Id., at p. 831.) The Court of Appeal reversed on the ground that Mrs. Logan's claims survived her death. "Here no attempt is being made to secure any of the [trust] income accruing subsequent to Mrs. Logan's death. . . . We are concerned with a proceeding which was pending at the time of her death which, in effect, was one to enforce the terms of the trust as to invasion of the corpus. Such a proceeding would seem to be a cause which would survive to be continued by her administrator to recover such amounts as she would have been entitled to received to date of death." (Id., at p. 832.)

Unlike Elliot, appellant's petition is for reimbursement of estate taxes due and owing after Carol's death. The estate taxes were paid well after the lifetime beneficiary interest terminated. It is not a debt or obligation arising during Carol's lifetime subject to a section 17200 petition.

Appellant relies on dicta in Elliot that funeral bills may be a debt or obligation chargeable to a marital trust. (Id., at p. 835.) "The general rule is that a trust for support and maintenance should be interpreted as including an obligation to pay the reasonable funeral expenses of the beneficiary. [Citations.]" (Ibid.) Funeral bills are not the same as estate taxes nor is appellant trying to enforce trustee duties running to Carol during her lifetime. Standing to file a section 17200 petition must first be satisfied before the trial court can rule on the merits of the petition. The trial court put it this way: "The issue is not whether [appellant] has standing to pursue the tax from the persons receiving the property, but whether she has standing to do so in a section 17200 petition."

Intended Beneficiary Interest

Appellant says she can file the petition as an intended beneficiary of the trust. We reject this theory. This argument conflates the issue of section 17200 standing to sue with the issue who has to pay the estate taxes.

The trial court correctly ruled that the breach of any alleged duty to withhold estate taxes was not material to the demurrer. It did, however, note that Frederick, the parties to the 2001 stipulated QTIP order, and Bank "may well have contemplated the operation of 26 U.S.C. § 2207A(1) and sections 20100, et seq., regarding proration of estate tax liability. [Appellant's] allegations are sufficient to state the element of a duty to reserve the estate tax amount from the Marital Trust. Whether she can prove that the parties intended such a duty and whether [Bank] in fact owed such a duty under the circumstances is a matter of proof. [¶] The court will sustain the demurrer to the section 17200 petition, without leave to amend the petition but without prejudice to a separate civil action asserting the same claims pursuant to section 20120 or otherwise."

Appellant and Bank request that we circumvent the trial court order and decide whether Bank breached a duty of care. We decline to do so because it is beyond the scope of this appeal. The petition was dismissed for lack of standing but without prejudice to appellant's right to file a civil action pursuant to 20120.5 (See Ross, Cal. Practice Guide, Probate (Rutter 2010) [¶] 16:591, pp. 16-182 to 16-183.) Section 20117, subdivision (a) provides: "If a person is charged with or required to pay an estate tax greater than the amount prorated to that person because another person does not pay the amount of estate tax prorated to the other person, the person charged with or required to pay the greater amount has a right to reimbursement against the other person."

Conclusion

We reject the argument that the trial court erred in dismissing the petition for lack of section 17200 standing. Where there is a conflict between a general statute (§ 17200) and a more specific one (§ 20110), the specific statute controls. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 857.)

The judgment (order sustaining demurrer) is modified to provide that the section 17200 petition is dismissed without prejudice to appellant's right to file a civil action pursuant to section 20120 for damages/reimbursement of estate taxes. As modified, the judgment is affirmed. The parties shall bear their costs on appeal.

We concur:

COFFEE, J.

PERREN, J.