BILL ANALYSIS �
AB 1160
Page 1
ASSEMBLY THIRD READING
AB 1160 (Wagner)
As Amended March 20, 2013
Majority vote
JUDICIARY 10-0
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Chau, Dickinson, | | |
| |Garcia, Gorell, | | |
| |Maienschein, Muratsuchi, | | |
| |Stone | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Requires a personal representative to obtain a prior
court order in order to participate in a proceeding to determine
distribution rights from a decedent's estate. Specifically,
this bill allows a personal representative, upon prior order of
the court on a showing of good cause, to file papers and
otherwise participate, as necessary to assist the court, in a
proceeding to determine beneficiaries and distribution rights.
EXISTING LAW :
1)Defines "personal representative" as an executor,
administrator, public administrator or a person who performs
substantially the same function under the law of another
jurisdiction.
2)Provides that a personal representative may commence and
maintain actions and proceedings for the benefit of the estate
and may defend actions against the decedent, the personal
representative, or the estate. Provides that a personal
representative is considered an officer of the court and
occupies a fiduciary relationship toward all parties having an
interest in the estate. (Estate of Justesen (1999) 77
Cal.App.4th 352.)
3)Permits a personal representative to file papers and otherwise
participate in distribution determination proceedings "as a
party to assist the court."
AB 1160
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FISCAL EFFECT : None
COMMENTS : As a part of the probate of a will, the beneficiaries
must be determined as well as their distribution rights. This
proceeding may be initiated by the personal representative or by
any person claiming to be a beneficiary. Personal
representatives are not considered true adversaries in the
proceedings and have a duty to be fair to all those interested
in the estate, unless they are also beneficiaries or heirs.
(See Bodine v. Superior Court (1962) 209 Cal.App.2d 354, 360.)
A recent appellate case held that since the personal
representative is assisting the court they may be entitled to
have their litigation fees paid by the estate, even if they are
a beneficiary and acting in their role as beneficiary and not
solely in their role as personal representative. (Estate of
Bartsch (2011) 193 Cal.App.4th 885, 900.)
This bill, sponsored by the Conference of California Bar
Associations, requires that a personal representative of an
estate who wishes to participate in a distribution determination
proceeding in that capacity to first receive approval of the
court to do so. The author states that the "requirement of a
prior court order was added by the Legislature in 1976 to guard
against such self-interested representation by personal
representatives, and was removed without explanation as a part
of a general overhaul of the Probate Code." The author contends
that this bill will "restore the long-time requirement" of
personal representatives having to obtain a prior court order to
participate in the distribution proceeding at the estate's
expense.
In 1988, the Legislature eliminated the requirement that a court
order be obtained before a personal representative could
participate in a distribution determination proceeding. That
change was based on a 1987 California Law Revision Commission
(CLRC) report recommending revisions to the Probate Code,
including the restructuring of former Section 1081 into the
current Section 11704. (20 Cal.L.Rev.Comm.Reports 1001 (1990).)
The CLRC described many of its proposed changes as generally
restating and reorganizing for clarity. While some of the
changes were substantial and substantive, the deletion of the
prior court order requirement was not specifically noted. In
description of the general changes to that section, CLRC wrote
that there is "nothing so unique about the determination made in
AB 1160
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such a proceeding that requires rules that differ from the
general rules of civil practice that govern all other probate
procedures, or that precludes the court from making the
determination."
In Estate of Bartsch, the appellate court determined that the
elimination of the prior court approval requirement permitted a
personal representative, who was also a beneficiary of the will,
to participate as a party to assist the court in an entitlement
to distribution proceeding with the estate bearing the personal
representative's costs. (193 Cal.App.4th 885 at 895.) The
author argues that this gives a personal representative who is
also a beneficiary of the estate an unfair advantage over the
other beneficiaries because the personal representative will be
able to litigate for his or her own benefit, with the estate
picking up the tab and depleting funds available for the other
beneficiaries.
This bill does not prevent a personal representative from
participating in the proceedings. Rather, it just requires
prior court approval, upon a showing of good cause. This will
allow a court to keep an improperly motivated personal
representative from participating in the proceedings at the
estate's expense. However, personal representatives who have
good cause to participate will still be able to do so. This
bill gives the court discretion to decide whether the personal
representative is needed to assist the court in the proceeding.
Analysis Prepared by : Leora Gershenzon and Kelsey Fischer /
JUD. / (916) 319-2334
FN: 0000116