BILL NUMBER: AB 1163 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2009
INTRODUCED BY Assembly Member Tran
FEBRUARY 27, 2009
An act to amend Section 11640 Sections 953
and 957 of the Evidence Code, and to amend Section 12252 of
the Probate Code, relating to decedents' estates.
attorney-client privilege.
LEGISLATIVE COUNSEL'S DIGEST
AB 1163, as amended, Tran. Decedent's
Attorney-client privilege: decedent's estates.
(1) Under existing law, a client of a lawyer has a privilege to
refuse to disclose, and to prevent another from disclosing, a
confidential communication between the client and lawyer if the
privilege is claimed by the holder of the privilege, a person who is
authorized to claim the privilege by the holder, or the person who
was the lawyer at the time of the confidential communication.
However, the lawyer may not claim the privilege if there is no holder
of the privilege in existence or if he or she is otherwise
instructed by a person authorized to permit disclosure. "Holder of
the privilege" is defined for purposes of these provisions to include
the client, a guardian or conservator of the client, the personal
representative of the client if the client is dead, and a successor,
assign, trustee in dissolution, or any similar representative of a
firm, association, organization, partnership, business trust,
corporation, or public entity that is no longer in existence.
This bill would clarify that the personal representative of a
client that is dead, and who is appointed for purposes of subsequent
estate administration pursuant to the provisions described in (3)
below, is a holder of the privilege.
(2) Under existing law, there is no lawyer-client privilege as to
a communication relevant to an issue between parties all of whom
claim through a deceased client, regardless of whether the claims are
by testate or intestate succession or by inter vivos transaction.
This bill would clarify that this exception also applies when any
of the parties claims under a nonprobate transfer.
(3) Under existing law, if subsequent administration of an estate
is necessary after the personal representative has been discharged
either because other property is discovered, or disclosure is sought
of a communication that is deemed privileged in the absence of a
waiver by a personal representative, as specified, or because it
becomes necessary or proper for any other cause, the court is
required to appoint as personal representative the person entitled to
appointment and to give notice of the hearing of the appointment to
the person who served as personal representative at the time of the
order of discharge and to other interested persons, as specified.
Existing law requires the appointed personal representative to be a
holder of the decedent's lawyer-client privilege, as specified.
This bill would delete the requirement that the appointed personal
representative be a holder of the decedent's lawyer-client
privilege. The bill also would delete the requirement that the court
perform these functions when subsequent administration of an estate
is necessary after the personal representative has been discharged
because disclosure is sought of a communication that is deemed
privileged in the absence of a waiver by a personal representative.
Existing law provides for the administration of the estates of
decedents. Existing law requires that when all the debts of an estate
have been paid, or when the estate is insolvent, and the estate is
ready to be closed, the personal representative file a petition for
an order for final distribution of the estate.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 953 of the Evidence
Code is amended to read:
953. As used in this article, "holder of the privilege" means:
(a) The client when he , if the client
has no guardian or conservator.
(b) A guardian or conservator of the client when
, if the client has a guardian or conservator.
(c) The personal representative of the client if the client is
dead , including a personal representative appointed
pursuant to Section 12252 of the Probate Code .
(d) A successor, assign, trustee in dissolution, or any similar
representative of a firm, association, organization, partnership,
business trust, corporation, or public entity that is no longer in
existence.
SEC. 2. Section 957 of the Evidence
Code is amended to read:
957. There is no privilege under this article as to a
communication relevant to an issue between parties all of whom claim
through a deceased client, regardless of whether the claims are by
testate or intestate succession , nonprobate transfer, or
by inter vivos transaction.
SEC. 3. Section 12252 of the Probate
Code is amended to read:
12252. If subsequent administration of an estate is necessary
after the personal representative has been discharged because other
property is discovered , disclosure is sought of a
communication that is deemed privileged in the absence of a waiver by
a personal representative under Article 3 (commencing with Section
950) of Chapter 4 of Division 8 of the Evidence Code, or
because it becomes necessary or proper for any other cause, both of
the following shall apply:
(a) The court shall appoint as personal representative the person
entitled to appointment in the same order as is directed in relation
to an original appointment, except that the person who served as
personal representative at the time of the order of discharge has
priority. The appointed personal representative shall be a
holder of the decedent's lawyer-client privilege for purposes of
Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of
the Evidence Code.
(b) Notice of hearing of the appointment shall be given as
provided in Section 1220 to the person who served as personal
representative at the time of the order of discharge and to other
interested persons. If property has been distributed to the State of
California, a copy of any petition for subsequent appointment of a
personal representative and the notice of hearing shall be given as
provided in Section 1220 to the Controller.
SECTION 1. Section 11640 of the Probate Code is
amended to read:
11640. (a) When all debts have been paid or adequately provided
for, or if the estate is insolvent, and the estate is in a condition
to be closed, the personal representative shall file a petition for,
and the court shall make, an order for final distribution of the
estate.
(b) The court shall hear and determine and resolve in the order
all questions arising under Section 21135, regarding ademption by
satisfaction, or Section 6409, regarding advancements.
(c) If debts remain unpaid or not adequately provided for or if,
for other reasons, the estate is not in a condition to be closed, the
administration may continue for a reasonable time, subject to
Chapter 1 (commencing with Section 12200) of Part 11.