BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 548


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          ASSEMBLY THIRD READING


          AB  
          548 (Cristina Garcia)


          As Introduced  February 23, 2015


          Majority vote


           ----------------------------------------------------------------- 
          |Committee       |Votes |Ayes                |Noes                |
          |----------------+------+--------------------+--------------------|
          |Judiciary       |10-0  |Mark Stone, Wagner, |                    |
          |                |      |Alejo, Chau, Chiu,  |                    |
          |                |      |Gallagher, Cristina |                    |
          |                |      |Garcia, Holden,     |                    |
          |                |      |Maienschein,        |                    |
          |                |      |O'Donnell           |                    |
           ----------------------------------------------------------------- 


          SUMMARY:  Allows a foreign heir to nominate an administrator of a  
          decedent's estate indefinitely.  Specifically, this bill lifts the  
          sunset so that the following provisions exist indefinitely:


          1)Authorizes the court to appoint, as administrator of a  
            decedent's estate, the nominee of a person who would be entitled  
            to appointment, or the nominee of the guardian or conservator of  
            that person, even if that person is not a resident of the United  
            States.


          2)Requires an administrator, nominated by a non-United States  
            resident, to reside in California and provides that if the  








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            administrator ceases to be a California resident he or she will  
            be deemed to have resigned as administrator.  


          3)Provides that a court may, in its discretion, deny the  
            appointment of an administrator nominated by a non-United States  
            resident and appoint another person.  In determining whether to  
            appoint the nominee, requires the court to consider, among other  
            things, whether the nominee has a conflict of interest with the  
            heirs or any other interested party; whether the nominee had a  
            business or personal relationship with the decedent or  
            decedent's family before the decedent's death; and, whether the  
            nominee is engaged in or acting on behalf of an individual, a  
            business, or other entity that solicits heirs to obtain the  
            person's nomination for appointment as administrator.


          4)Provides that, if the court decides to appoint a nominee of a  
            non-United States resident, the court shall require the nominee  
            to obtain a bond, unless the court orders otherwise for good  
            cause, as provided.  


          EXISTING LAW:  


          1)Provides that a person has no power to administer an estate  
            until that person is appointed as personal representative.    


          2)Provides that a person named as executor in the decedent's will  
            has the right to appointment as personal representative even if  
            that person is not a United States resident.  


          3)Provides that if a decedent dies intestate (without a will), the  
            court must appoint an administrator as a personal  
            representative.  









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          4)Authorizes the court to appoint as administrator of a decedent's  
            estate the nominee of a person entitled to the appointment or  
            the nominee of the guardian or conservator of that person.  


          5)Sets forth individuals entitled to appointment in a priority  
            list, which begins with the surviving spouse and children, and  
            includes in priority order grandchildren, parents, other  
            relatives, conservator or guardian of the estate of the  
            deceased, public guardian and creditors.  


          6)Allows a court to appoint a qualified non-resident of California  
            as administrator of a decedent's estate, provided certain  
            requirements are met.  


          7)Authorizes the court, until January 1, 2016, to appoint, as  
            administrator of a decedent's estate the nominee of a person who  
            would be entitled to appointment, or the nominee of the guardian  
            or conservator of that person, even if that person is not a  
            resident of the United States, subject to specified conditions.   



          8)Allows the public administrator of the county in which an estate  
            is administered to petition for appointment as personal  
            representative of the estate if no person of higher priority has  
            petitioned and if the value of the estate exceeds $150,000.  


          FISCAL EFFECT:  None


          COMMENTS:  When someone creates a will, he or she can name an  
          executor in the will, whether or not a United States resident, who  
          has the right to be appointed as the personal representative and  
          administer the estate in court.  When someone dies without a will,  








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          the court appoints a personal representative to administer the  
          estate.  A personal representative must meet specified  
          qualifications, including being a resident of the United States.   
          The Probate Code lists persons who are entitled to appointment as  
          estate administrator, and that list is in order of priority.   
          Relatives, who are the legal heirs of the estate, receive high  
          priority, with the closest relatives, including spouses and  
          children, receiving the highest priority.  If no relatives are  
          available, the court may next consider a guardian or conservator  
          of the decedent's estate, then the public guardian and finally  
          creditors of the decedent.  


          Until 2013, California law provided that an heir otherwise  
          entitled to appoint a personal representative cannot do so if he  
          or she is not a United States resident, even though a decedent  
          could appoint a non-United States resident to serve in that  
          capacity.  Recent legislation (AB 1670 (Lara), Chapter 635,  
          Statutes of 2012), created a pilot program to allow non-resident  
          heirs to nominate administrators of the estate.  To protect  
          against any possible fraud, additional conditions were added to  
          the law which applied if a non-resident heir nominated the estate  
          administrator.  These conditions include requiring that the  
          administrator reside in California during the entire estate  
          administration; requiring the court to consider, among other  
          things, whether the nominee has a conflict of interest with the  
          heirs or any other interested party, whether the nominee had a  
          business or personal relationship with the decedent or decedent's  
          family before the decedent's death, whether the nominee is acting  
          on behalf of an entity that solicits heirs to obtain the person's  
          nomination for appointment as administrator; and requiring the  
          nominee to obtain a bond, unless the court orders otherwise for  
          good cause.  The pilot program sunsets on January 1, 2016.


          The Assembly Judiciary Committee is not aware of any instances  
          where the nomination by a non-resident heir during the course of  
          the pilot resulted in any harm to any interested party and neither  
          have the attorney organizations supporting this bill.  This bill,  








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          sponsored by the Conference of California Bar Associations,  
          removes the sunset and allows non-resident heirs to nominate  
          administrators of the estate, subject to all the limiting  
          conditions in the existing pilot.  


          Case Law Demonstrates Difficulties with Law Prior to 2013:   
          Pre-2013 cases interpreting the statutory scheme for appointment  
          of an administrator when the heirs are non-United States residents  
          were in conflict.  In Estate of Kaussen (1987) 190 Cal.App.3d 1644  
          (but later unpublished), a decedent left his $26 million estate to  
          his partner and their four children, all residents of Germany.   
          The heirs then petitioned the court to appoint an administrator of  
          their choosing.  The trial court appointed the public guardian  
          instead because the heirs were not United States residents.  The  
          court of appeals, while acknowledging that the heirs could not  
          themselves be the estate administrator since none of them resided  
          in the United States, nonetheless reversed, finding that the  
          heirs' lack of residency did not prevent them from nominating a  
          personal representative of their own choosing.  


          Four years later, the same court of appeals reversed course.  In  
          Estate of Damskog (1991) 1 Cal.App.4th 78, the appeals court  
          vacated the appointment of the attorney and holder of a durable  
          power of attorney of a decedent and ordered the appointment of the  
          public guardian, despite the fact that the only heirs of the  
          decedent, his two sisters and the children of a deceased sister,  
          residents of Norway, nominated the attorney.  The court  
          acknowledged that if the sisters from Norway had the right to  
          nominate (which as non-residents they did not have under  
          then-existing law), their nominee would have had priority over the  
          public guardian.  In a footnote, the court referred to its  
          decision in Kaussen, and stated that "the policy considerations  
          which informed our earlier decision are best left to the  
          Legislature."  (Id. at 82, footnote 5.)


          The Damskog court however explicitly stated that "[w]hile it makes  








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          sense to require administrators to reside in the United States  
          where the probate court can exercise personal jurisdiction over  
          them, if need be, as they perform their duties, no such  
          jurisdictional need justifies a residency requirement for  
          nominators.  This very persuasive argument is better addressed to  
          the Legislature than to the courts."  (Id. [emphasis added].)  It  
          should be noted that an administrator appointed by the court,  
          whether public or private, is responsible to the court.




          Analysis Prepared by:                                               
                          Leora Gershenzon / JUD. / (916) 319-2334  FN:  
          0000093