BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1700


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          Date of Hearing:  March 8, 2016 


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1700  
          (Maienschein) - As Introduced January 25, 2016


                    PROPOSED CONSENT (As Proposed to be Amended)


          SUBJECT:  TRUSTEE Notice of proposed action: DISTRIBUTIONS


          KEY ISSUE:  SHOULD A TRUSTEE BE PERMITTED TO USE THE  
          OUT-OF-COURT NOTICE OF PROPOSED ACTION PROCESS TO DISTRIBUTE  
          TRUST FUNDS without risk of liability?


                                      SYNOPSIS


          This non-controversial bill, sponsored by the Trusts & Estates  
          Section of the State Bar, expands the use of an out-of-court  
          procedure to allow trustees to take various actions without risk  
          of liability for taking those actions.  Under the out-of-court  
          notice of proposed action process, a trustee may voluntarily  
          choose to provide a simplified notice of a proposed action or  
          non-action to the trust beneficiaries and allow them to object.   
          If the beneficiaries do not object within the provided  
          timeframe, the trustee may take the action without risk of  
          liability.  If a beneficiary objects, the trustee may seek court  
          approval to take the proposed action.









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          The notice of proposed action process was originally limited to  
          trustee actions under the Uniform Principal and Income Act.  In  
          2004, the Legislature expanded that to allow a trustee to use  
          the notice of proposed action for the trustee's general trust  
          powers, whether derived from statute or the trust instrument  
          itself, subject to specific exemptions.  (SB 1021 (Poochigian),  
          Chap. 54, Stats. 2004.)  That bill also extended the timeframe  
          for beneficiaries to object from 30 days to 45 days.  


          This bill, as proposed to be amended, makes two changes to the  
          trustee notice of proposed action to, according to the author,  
          promote the efficiency of trust administration.  First, the bill  
          deletes the current exemption that prevents use of the notice of  
          proposed action process for a preliminary and final distribution  
          of trust assets.  Second, it clarifies that the notice of  
          proposed action process cannot be used by a trustee to discharge  
          himself or herself and avoid any liability.  The Trusts &  
          Estates Section believes that these changes will "dramatically  
          increase" the usefulness of the notice of action procedure and  
          will "enhance the ability of trustees to efficiently administer  
          trusts in California."  There is no reported opposition to these  
          proposed changes.


          SUMMARY:  Allows a trustee to use the notice of proposed action  
          process to make trust distributions.  Specifically, this bill:  


          1)Eliminates an exemption to allow a trustee to use the notice  
            of proposed action to make a preliminary or final trust  
            distribution. 


          2)Clarifies that a trustee may not use the notice of proposed  
            action process to discharge himself or herself.










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          EXISTING LAW:  


          1)Grants a trustee broad powers to administer an estate under a  
            trust instrument, including, among others, the power to hold,  
            sell or exchange trust property, receive and distribute  
            income, and compromise or settle claims against the estate.   
            Specifically vests the trustee with fiduciary duties related  
            to management of the estate, and makes the trustee liable to  
            the beneficiary for losses resulting from a breach of those  
            duties.  (Probate Code Section 16200 et seq.  Unless stated  
            otherwise, all further statutory references are to the Probate  
            Code.)


          2)Provides a trustee, under the Uniform Principal and Income  
            Act, default rules for distributing to trust beneficiaries the  
            net income and principal receipts acquired by a trust so that  
            distributions under a trust generally conform to distributions  
            under a will.  These default rules do not apply if the trust  
            contains different provisions.  (Section 16320 et seq.)


          3)Permits a trustee, acting under general trustee powers,  
            whether from statute or the trust itself, or the Uniform  
            Principal and Income Act, to give notice of a proposed action,  
            including a decision not to take action, to adult  
            beneficiaries who are entitled to receive income under the  
            trust or to receive distribution of principal, and specifies  
            the contents of the notice to be given.  Requires that the  
            notice state the time within which objections to the proposed  
            action can be made, which cannot be less than 45 days from the  
            mailing of the notice of proposed action.  (Section 16500 et  
            seq.)










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          4)Specifies the procedure for a trust beneficiary to object to  
            the proposed action, and allows the trustee to petition the  
            court for authority to proceed, if objection is received as  
            specified, and for a beneficiary to petition the court to  
            order the trustee to take such action, if the trustee's  
            proposal is not to take the action.  Places the burden on the  
            beneficiary to prove to the court that the action should not  
            be taken, or should be taken, as the case may be.  (Section  
            16503.)  


           5)Provides that a trustee is not liable to a beneficiary for an  
            action taken under the notice of proposed action process if  
            the trustee properly notifies the beneficiary and does not  
            receive a written objection from the beneficiary within the  
            required timeframe.  (Id.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  The Probate Code empowers the administrator or  
          personal representative of a decedent's estate to notice a  
          proposed action to beneficiaries and other affected parties,  
          before taking or not taking an action, in order to provide the  
          noticed parties the opportunity to consent or to object.   
          (Section 10500 et seq.)  Administration of a decedent's estate  
          occurs largely under court supervision. Trustees, on the other  
          hand, are vested by statute with broad powers to administer  
          assets in a trust, with little supervision by the court.   
          Trustees have a very similar notice of proposed action procedure  
          that allows trustees, should they so choose, to notify trust  
          beneficiaries of a proposed action and to allow the  
          beneficiaries to object in a simplified process.  If the  
          beneficiaries do not oppose within the provided timeframe, the  
          trustee may take the action, without risk of liability.  If the  
          beneficiary objects, the trustee may go to court to seek  
          approval in order to take the proposed action without risk of  








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          liability.


          The notice of proposed action process was originally limited to  
          trustee actions under the Uniform Principal and Income Act.  In  
          2004, the Legislature expanded that to allow a trustee to use  
          the notice of proposed action for the trustee's general trust  
          powers, whether derived from statute or the trust instrument  
          itself, subject to specific exemptions.  (SB 1021 (Poochigian),  
          Chap. 54, Stats. 2004.)  That bill also extended the timeframe  
          for beneficiaries to object from 30 days to 45 days.  


          This bill, sponsored by the Trusts & Estates Section of the Bar,  
          makes two changes to the trustee notice of proposed action to,  
          according to the author and the sponsor, promote the efficiency  
          of trust administration.  First, the bill deletes the current  
          exemption that prevents use of the notice of proposed action  
          process for a preliminary and final distribution of trust  
          assets.  Second, clarifies that the notice of action process  
          cannot be used to discharge a trustee.  In support of the bill  
          the author writes:


               AB 1700 would modify the [notice of proposed action]  
               procedure so as to dramatically increase its usefulness and  
               enhance the ability of trustees to efficiently administer  
               trusts in California in a timely and streamlined manner.   
               The proposed changes in no way diminish the rights and  
               protections currently afforded beneficiaries.  And no  
               changes are being made to the ability of a beneficiary to  
               easily object to the proposed action.


          Notice of Proposed Action Process:  The notice of proposed  
          action process allows a trustee to take certain action without  
          court approval and then limits the trustee's potential liability  
          with respect to that action.  A trustee may elect to use the  
          voluntary notice of action process to take action -- or not take  








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          action, as the case may be -- under the general trustee powers,  
          whether provided by statute or the trust itself, or the Uniform  
          Principal and Income Act.  To do so, the trustee must give  
          notice of the proposed action, or the decision not to take  
          action, to beneficiaries who are entitled to receive income  
          under the trust or to receive distribution of principal, unless  
          the beneficiary has already consented in writing or cannot be  
          located.  The notice must state a description of the actions to  
          be taken and the reasons for the action.  


          The notice must state the time within which objections to the  
          proposed action can be made, which cannot be less than 45 days  
          from the mailing of the notice of proposed action.  A  
          beneficiary may object to the action by sending a written  
          objection to the trustee within the time period specified in the  
          notice of proposed action.  If no objection is received by the  
          deadline, the trustee may take the action and is not liable to a  
          beneficiary for that action.  If a beneficiary objects, either  
          the trustee or the beneficiary can seek court approval for the  
          action or a different action.  


          Certain actions are specifically exempted from the notice of  
          proposed action process.  These actions include allowance for  
          the trustee's or the trustee's attorney's compensation, sale of  
          trust property to the trustee or the trustee's attorney, and  
          settlement of a claim against the trustee.  These exemptions all  
          seek to avoid providing immunity from liability to a trustee who  
          may be self-dealing.  Also exempted are preliminary and final  
          trust distributions and discharges.


          This Bill Will Expand Use of the Notice of Proposed Action  
          Process:  This bill changes the notice of proposed action  
          process by eliminating a current exemption from the process and  
          allowing trustees to use the process for preliminary and final  
          distributions of trust assets.  The Trust & Estates Section  
          writes that change will "dramatically increase" the use of the  








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          notice of proposed action:

               Every trust administration involves making distributions.   
               It is a routine aspect of a trust administration.   
               Expanding the scope of the statute to allow a trustee to  
               use a notice of proposed action] procedure in conjunction  
               with distribution matters would increase the efficiency of  
               a trust administration without diminishing any rights or  
               protections currently afforded beneficiaries.  Such a  
               procedure would allow trustees to easily communicate  
               proposed distribution plans to beneficiaries and seek their  
               consent, whether expressed directly by written consent, or  
               indirectly by failure to object, without having to resort  
               to the more costly and time consuming option of seeking  
               court approval of the proposed distribution plan. 

          This bill also clarifies the exemption of discharges from the  
          notice of proposed action process.  The Trusts & Estates Section  
          writes that discharge prohibition "was included in the initial  
          legislation [creating the notice of proposed action process for  
          trustees], which mirrored probate statutes."  The discharge is  
          generally not something that occurs in trust administration;  
          rather it occurs in probate, where a personal representative can  
          be discharged.  However, in order to clarify the exemption, the  
          bill, as proposed to be amended, exempts from the notice of  
          proposed action process a discharge of the trustee.  This should  
          prevent a trustee from trying to insulate themselves from  
          liability improperly somehow by attempting to discharge  
          themselves.  


          Finally, this bill, as originally drafted, would have shortened  
          the timeframe for when a beneficiary must object to a proposed  
          action, from 45 days to 30 days.  In 2004, the Legislature  
          specifically extended the time to file written objections from  
          30 days to 45 days and this bill originally sought to reverse  
          that extension.  This Committee, in 2004, noted that extended  
          period for objecting "was made to address concerns of the  
          California Judges Association."  While the California Judges  








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          Association has not, at this point, submitted a letter opposing  
          the shortening of the time period to object, there is still  
          concern that shortening the beneficiary's time period to object  
          to an action, including now a partial or complete distribution  
          of trust assets, could result in an inequitable or egregious  
          situation.  The 45-day period includes both the mailing of the  
          notice to the beneficiaries and the beneficiaries' sending of  
          their objections back to the trustee.  While, this could be  
          accomplished nearly instantaneously through email, each mailing  
          could also take a week or more through regular mail service.  If  
          the objection is even a day late, a trustee will be protected  
          against any liability for even an inappropriate action,  
          including a distribution of all the trust property.  Given this,  
          the author has rightly agreed to leave the time period to object  
          at 45 days.  However, if all beneficiaries consent, the action  
          can be taken before the 45 days expire.


          Prior Legislation:  AB 846 (Ackerman), Chap. 145, Stats. 1999,  
          enacted the Uniform Principal and Income Act, which contained  
          the notice of proposed action by trustees.


          SB 1021 (Poochigian), Chap. 54, Stats. 2004, extended the notice  
          of proposed action provisions to the trustee's general trust  
          powers subject to specific exemptions, and extended the  
          timeframe for beneficiaries to object from 30 days to 45 days.  


          ARGUMENTS IN SUPPORT:  In support of the bill, the Trusts &  
          Estates Section of the State Bar writes:


               The proposed amendment to the statute would dramatically  
               increase its usefulness and enhance the ability of trustees  
               to efficiently administer trusts in California.  Under  
               current law, unless the trustee obtains the affirmative  
               written approval by every beneficiary prior to a proposed  
               plan of distribution, in order to be ensured that no  








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               beneficiary can later object to a distribution, a trustee  
               is required to file a petition with the probate court  
               seeking approval of a proposed distribution.  Presently, no  
               other method currently exists to reliably ensure that there  
               are no beneficiary objections prior to such a distribution  
               absent either obtaining affirmative consent or a court  
               order.  In most cases, no objection to the petition is  
               received.  Thus, such petitions unnecessarily strain the  
               resources of California's over-burdened court system. 


               Although in many trust administrations, receiving the  
               affirmative consent of all interested parties to a proposed  
               distribution may be possible, there are situations in which  
               securing such consents is not cost effective or practical,  
               such as when the trust has numerous beneficiaries, or in  
               situations where a beneficiary has such a minor interest  
               that getting him or her to respond is problematic.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Trusts & Estates Section of the State Bar (sponsor)




          Opposition


          None on file










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