BILL ANALYSIS
AB 355
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 355 (Ammiano) - As Introduced: February 19, 2009
PROPOSED CONSENT
SUBJECT : DECEDENT'S ESTATES: SISTER STATE PERSONAL
REPRESENTATIVES
KEY ISSUE : IN THE INTERESTS OF CONSERVING JUDICIAL RESOURCES
AND IMPROVING THE EFFICIENCY OF AT-DEATH ADMINISTRATION OF
PERSONAL PROPERTY, SHOULD THE PERSONAL REPRESENTATIVE OF A
DECEDENT WHO DIED A RESIDENT OF ANOTHER STATE BE ALLOWED TO
COLLECT THE DECEDENT'S PERSONAL PROPERTY, VALUED AT MORE THAN
$100,000 AND LOCATED IN CALIFORNIA, BY MEANS OF AN AFFADAVIT
PROCEDURE, AS SPECIFIED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Trusts and Estates
Section of the State Bar of California, creates a procedure
whereby the personal representative of a decedent who died while
a resident of another state can collect or receive the
decedent's personal property valued in excess of $100,000 and
located in California by means of an affidavit procedure, as
specified. Supporters reasonably contend that, as long as a
decedent has an appointed personal representative in a formal
probate proceeding in his/her domicile state, there is no need
to initiate a second formal probate proceeding in California
when the nondomiciliary decedent owns personal property in
California that exceeds $100,000 in value. They note this bill
will reduce these unnecessary, costly, and time consuming formal
probate proceedings in California, thus conserving our state's
judicial resources and avoiding a needless and significant
burden on the decedent's estate and its beneficiaries. There is
no known opposition to this bill.
The simplified affidavit procedure proposed by this bill is
substantially similar to the "small estate affidavit" procedure
currently used to facilitate the transfer of a nondomiciliary
decedent's personal property in California valued at less than
AB 355
Page 2
$100,000 to a sister state personal representative without the
need for an ancillary probate proceeding in this state. The
affidavit procedure proposed by this bill does not apply to the
transfer of real property and is not available if any proceeding
for the administration of the decedent's estate is pending or
has been conducted in California. However, the transfer of the
decedent's property pursuant to this procedure does not preclude
later proceedings for the administration of the decedent's
estate, and the bill contains detailed rules for restoration of
the property to the decedent's estate if proceedings for the
administration of the estate are later commenced in California.
SUMMARY : Authorizes the personal representative of a decedent
who died while a resident of another state to collect or receive
personal property valued in excess of $100,000 belonging to the
decedent and located in California, by means of an affidavit
procedure, as provided. Specifically, this bill :
1)Requires that an affidavit made under penalty of perjury be
furnished to the holder of the decendent's property, stating
the decedent's name, the date and place of death, a
description of the property to be transferred to the affiant,
and a number of other declaratory facts, as specified.
2)Requires that the sister state personal representative present
evidence of ownership with the affidavit to the holder of the
decedent's property, if the holder would have had the right to
require presentation of the evidence of ownership before
incurring the duty to transfer the property to the decedent.
If no evidence of ownership is presented, then as a condition
for payment or transfer of the property, the holder may
require a bond sufficient to indemnify the holder against all
liability.
3)Provides that, if the procedural requirements are satisfied,
the sister state personal representative is entitled to have
the property described in the affidavit to be paid, delivered,
or transferred to him or her. If, however, the holder of the
property unreasonably acts to withhold the property, then the
sister state personal representative may recover attorney's
fees in an action to enforce his or her right to compel
transfer of the property.
4)Provides that, if the procedural requirements are satisfied,
receipt of the affidavit by the holder of the decedent's
AB 355
Page 3
property is sufficient acquittance for the transfer of the
property and also discharges the holder from any further
liability with respect to the property, including tax
liability.
5)Provides that if the property claimed in an affidavit pursuant
to this procedure is the subject of a pending action or
proceeding in which the decedent was a party, then the sister
state personal representative, without waiting for probate of
the will, shall be substituted as a party in place of the
decedent by making a motion, as specified, and by
simultaneously filing the affidavit.
6)Prohibits the use of this affidavit procedure if any
proceeding for the administration of the decedent's estate is
pending or has been conducted in California. Also provides
that the transfer of the decedent's property pursuant to this
procedure does not preclude later proceedings for the
administration of the decedent's estate.
7)Provides for the restoration of the property to the decedent's
estate if proceedings for the administration of the estate are
later commenced in California, specifically:
a) If the sister state personal representative still has
the property, then restitution of the property to the
estate plus the net income received from the property and,
if applicable, the amount of money necessary to satisfy the
balance of any encumbrance incurred after the transfer of
the property.
b) If the sister state personal representative no longer
has the property, then restitution to the estate of the
fair market value of the property, as defined, plus
interest on the fair market value and the net income
received from the property.
c) If any person fraudulently secured the transfer of the
decedent's property through this procedure, then that
person is liable for restitution to the decedent's estate
of three times the fair market value of the property, as
defined.
8)Provides that an action to enforce liability for the
restoration of the property, as described above, may be
brought only by the personal representative of decedent's
estate and is forever barred three years after presentation of
AB 355
Page 4
the affidavit or discovery of the fraud, whichever is later.
9)Provides that a sister state personal representative to whom
transfer of the decedent's property is made remains liable for
the unsecured debts of the decedent in any future proceeding
in a California court relating to the estate.
10)Prohibits the use of this affidavit procedure to obtain the
possession or transfer of real property.
EXISTING LAW :
1)Defines "nondomiciliary decedent" as a person who dies
domiciled in a foreign nation or a state other than
California, and defines "sister state personal representative"
as a personal representative appointed in a state other than
California. (Probate Code Section 12505, 12507.)
2)Provides for a simplified affidavit procedure ("the small
estate affidavit") that, if followed, enables the successor of
a decedent, without procuring letters of administration or
awaiting probate of the will, to collect or receive any of the
decedent's real or personal property, as long as the gross
value of the decedent's real and personal property in this
state is less than $100,000. (Probate Code Sections 13100 to
13116.)
3)Provides that if a person dies while domiciled in a sister
state, the court in an ancillary administration proceeding in
this state may make an order for preliminary or final
distribution of all or part of the decedent's personal
property in California to the sister state personal
representative if the court determines that such distribution
is in the best interest of the estate or interested persons.
(Probate Code Section 12540.)
4)Authorizes a sister state personal representative, without
petitioning for ancillary probate proceedings in California,
to utilize the small estate affidavit procedure to collect the
personal (but not real) property of a nondomiciliary decedent,
as long as that personal property located in California is
valued at less than $100,000. (Probate Code Section 12570.)
COMMENTS : This non-controversial bill, sponsored by the Trusts
and Estates Section of the State Bar of California, creates a
AB 355
Page 5
procedure whereby the personal representative of a decedent who
died while a resident of another state can collect or receive
the decedent's personal property valued in excess of $100,000
and located in California by means of an affidavit procedure, as
specified. According to the author:
This proposal is designed to simplify and reduce the
cost of at-death administration of personal property
located in California when the individual owning the
property dies a resident of another state. (In that
case) a probate proceeding is commenced in that state
and a personal representative is appointed to
administer the decedent's affairs. However, if that
decedent also owned personal property that is located
in California and which exceeds $100,000 in value, the
personal representative . . . must initiate a second
formal probate proceeding in this state. These
proceedings are costly, time consuming, and can
unnecessarily delay distribution of the estate. This
represents a needless and significant burden on the
estate and its beneficiaries.
This bill would allow a sister state personal
representative to collect any amount of personal
property, except real estate, belonging to a decedent
and located in California. Currently, simplified
affidavit procedures accomplish this for property
under $100,000, but over that amount a full formal
court procedure (in California) is needed.
The sponsor of the bill also notes that the bill will conserve
judicial resources in California by reducing the number of
"unnecessary" formal probate proceedings in cases where the
nondomiciliary decedent owns personal property in California
that exceeds $100,000 in value. According to Kay Henden, a
member of the Trusts and Estates Section of the State Bar, as
long as there is a formal probate proceeding in the state of the
decedent's death, California's interest in the proper and secure
administration of the decedent's property is satisfied so as to
outweigh any compelling need for a second probate hearing in
California and at cost to the state. In addition, California
may still submit a claim to the probate court in the sister
state for money the decedent's estate may owe, thereby
protecting its own claims against the decedent's estate.
AB 355
Page 6
As indicated by the author's statement, current law establishes
a simplified affidavit procedure for the transfer of a
nondomiciliary decedent's personal property located in
California, so long as that property has a gross value not
exceeding $100,000. The substantially similar affidavit
procedure described in this bill is modeled after the affidavit
procedure established in Chapter 3 of Part 1 of Division 8 of
the California Probate Code (commencing with section 13100).
According to figures provided by the sponsor, thirteen states
have adopted the Uniform Probate Code, which permits this type
of transfer of property through an affidavit procedure after 60
days have elapsed from the decedent's date of death. An
additional five states have statutory provisions allowing a
similar simplified transfer procedure.
REGISTERED SUPPORT / OPPOSITION :
Support
Trust and Estates Section of the State Bar of California
(sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334