Senate BillNo. 155


Introduced by Senator Hertzberg

February 2, 2015


An act to add Part 3 (commencing with Section 13750) to Division 8 of the Probate Code, relating to decedent’s estates.

LEGISLATIVE COUNSEL’S DIGEST

SB 155, as introduced, Hertzberg. Decedent’s estates.

Existing law provides for the disposition of a testator’s property by will. Existing law establishes the Uniform Testamentary Additions to Trusts Act, under which a valid devise of property may be made by will to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person, commonly referred to as a pour-over will. Existing law provides that the decedent’s property, including property devised by a will, is generally subject to probate administration, except as specified. Existing law establishes simplified procedures for addressing a decedent’s estate valued under $150,000, including authorizing the successor of the decedent to collect property due to the decedent without letters of administration or awaiting probate of a will.

This bill would establish simplified procedures for the distribution of property, real or personal property of any amount or value, devised by a will to the trustee or trustees of a recipient trust, as defined, without procuring letters of administration. The bill would authorize the trustee or trustees of a recipient trust to file a verified petition setting forth specified facts in the superior court of the county in which the estate of the decedent may be administered, and would authorize the court to issue an order that a particular item or items of property pass without administration and are transferred to the petitioner as trustee or trustees of the recipient trust. The bill would require attorneys’ fees for services performed in connection with these provisions to be determined by a private agreement between the attorney and the client, and would specify that attorneys’ fees are not subject to approval by the court.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Part 3 (commencing with Section 13750) is added
2to Division 8 of the Probate Code, to read:

3 

4PART 3.  Determination of Property Passing to
5Trustee of Recipient Trust Without
6Administration

7

 

8Chapter  1. Definitions
9

 

10

13750.  

For purposes of this part, both of the following
11definitions shall apply:

12(a) “Pour-over will” means a devise by a will, including any
13codicils, of property to the trustee or trustees of a recipient trust.

14(b) “Recipient trust” means a trust established as a revocable
15trust by a decedent during his or her lifetime, either alone or in
16conjunction with his or her spouse or registered domestic partner,
17and that is identified in the pour-over will.

18 

19Chapter  2. Court Order Determining Passage of
20Property to Trustee or Trustees of Recipient Trust
21

 

22

13751.  

Subject to further requirements provided in this chapter,
23if a decedent dies testate and by his or her pour-over will devises
24some or all of his or her property to the trustee or trustees of a
25recipient trust, the trustee or trustees of that recipient trust, without
26procuring letters of administration, may file a petition in the
27superior court of the county in which the estate of the decedent
28may be administered requesting a court order that a particular item
29or items of property pass without administration to the petitioner
30as trustee or trustees of the recipient trust.

31

13752.  

(a) The procedure provided by this chapter may be
32used only if:

P3    1(1) At least 40 days have elapsed since the death of the decedent.

2(2) No proceeding is being or has been conducted for the probate
3administration of the decedent’s estate, either in this state or in
4any other jurisdiction.

5(3) Except as provided in paragraph (4), the devise in the
6pour-over will to the trustee or trustees of the recipient trust applies
7to the entire remainder of the property subject to the pour-over
8will.

9(4) (A) The only other devise or devises, if any, in the pour-over
10will are one or more specific gifts, as defined in subdivision (a) of
11Section 21117, all of which would be eligible for disposition
12without administration pursuant to either of the following
13provisions:

14(i) Part 1 (commencing with Section 13000), as determined by
15the petitioner. Any property that is not a devise of a specific gift,
16as defined in subdivision (a) of Section 21117, in the decedent’s
17pour-over will shall be excluded in determining the property or
18estate of the decedent or its value for this purpose.

19(ii) Part 2 (commencing with Section 13500), as determined by
20the petitioner.

21(B) The court may rely on the petitioner’s representations
22concerning determinations made by the petitioner pursuant to this
23paragraph.

24(b) The procedure provided by this chapter may be used for real
25or personal property of any amount or value, so long as the other
26requirements of this chapter are satisfied. The value of an
27individual item, or aggregate value of items, of property does not
28need to be included in the petition. An inventory and appraisal
29shall not be required for the property subject to the procedure
30provided by this chapter.

31

13753.  

(a) The petition shall be verified by each petitioner,
32shall contain a request that the court make an order pursuant to
33this chapter that a particular item or items of the decedent’s
34property pass without administration to the petitioner as trustee or
35trustees of the recipient trust, and shall state all of the following:

36(1) The facts necessary to determine that the petition is filed in
37the proper county.

38(2) That at least 40 days have elapsed since the death of the
39decedent.

P4    1(3) That no proceeding is being or has been conducted for
2administration of the decedent’s estate, either in this state or in
3any other jurisdiction.

4(4) The facts and the provision or provisions of the pour-over
5will upon which the petitioner bases the allegation that a particular
6item or items of property pass without administration to the
7petitioner as trustee or trustees of the recipient trust, including, but
8not limited to, the following:

9(A) That the devise in the pour-over will to the trustee or trustees
10of the recipient trust applies to the entire remainder of the property
11subject to the pour-over will.

12(B) Either of the following, as applicable:

13(i) That there is no devise in the pour-over will other than to the
14trustee or trustees of the recipient trust.

15(ii) The only other devise or devises, if any, in the pour-over
16will are one or more specific gifts, as defined in subdivision (a) of
17Section 21117, all of which would be eligible for disposition
18without administration pursuant to either of the following
19provisions:

20(I) Part 1 (commencing with Section 13000), as determined by
21the petitioner. Any property that is not a devise of a specific gift,
22as defined in subdivision (a) of Section 21117, identified in the
23decedent’s pour-over will shall be excluded in determining the
24property or estate of the decedent or its value.

25(II) Part 2 (commencing with Section 13500), as determined by
26the petitioner.

27(5) A description or descriptions of the particular item or items
28of the decedent’s property for which the petitioner requests an
29order pursuant to this chapter.

30(6) The name, age, address, and relation to the decedent of each
31of the following:

32(A) Heir and devisee of the decedent.

33(B) Each person named as executor or alternate executor of the
34pour-over will.

35(C) Each beneficiary of the recipient trust. For any future
36interests, this determination shall be made pursuant to subdivision
37(a) of Section 15804, so far as known to any petitioner.

38(D) Each person named as trustee or successor trustee in the
39recipient trust.

P5    1(7) The name and address of any person serving as guardian of
2the estate or conservator of the estate of the decedent at the time
3of the decedent’s death, so far as known to any petitioner.

4(b) A copy of the pour-over will shall be attached to, and filed
5in support of, the petition.

6(c) A certification of trust for the recipient trust that satisfies
7the requirements of Section 18100.5 shall be attached to, and filed
8in support of, the petition.

9

13754.  

Notice of hearing shall be given as provided in Section
101220 to each of the persons named in the petition pursuant to
11Section 13753.

12

13755.  

If the requirements of this chapter are satisfied, the
13court shall issue an order that a particular item or items of property
14pass without administration and are transferred to the petitioner
15as trustee or trustees of the recipient trust. Each item of property
16shall be described in the order. The court shall not issue an omnibus
17order for final distribution pursuant to the procedure provided by
18this chapter.

19

13756.  

(a) Except as provided in subdivision (b), upon
20becoming final, an order under this chapter that property passes
21without administration to the trustee or trustees of the recipient
22trust shall be conclusive on all persons.

23(b) An order issued by the court pursuant to Section 13755 shall
24not preclude the filing of a petition pursuant to Section 17200.

25

13757.  

The attorney’s fees for services performed in connection
26with the filing of a petition and obtaining a court order under this
27chapter shall be determined by a private agreement between the
28attorney and the client and are not subject to approval by the court.
29If there is no agreement between the attorney and the client
30concerning the attorney’s fees for services performed in connection
31with the filing of a petition and obtaining a court order under this
32chapter and there is a dispute concerning the reasonableness of the
33attorney’s fees for those services, a petition may be filed with the
34court in the same proceeding requesting that the court determine
35the reasonableness of the attorney’s fees for those services. If there
36is an agreement between the attorney and the client concerning
37the attorney’s fees for services performed in connection with the
38filing of a petition and obtaining a court order under this chapter
39and there is a dispute concerning the meaning of the agreement, a
P6    1petition may be filed with the court in the same proceeding
2requesting that the court determine the dispute.

3

13758.  

Nothing in this chapter excuses compliance with
4Chapter 3 (commencing with Section 13100) by the holder of the
5decedent’s personal property if an affidavit or declaration is
6furnished as provided in that chapter.

7 

8Chapter  3. Liability for Debts of Decedent
9

 

10

13759.  

Property transferred to the trustee or trustees of a
11recipient trust pursuant to an order issued under Section 13755
12shall be subject to the payment of claims, debts, and expenses as
13provided in Part 8 (commencing with Section 19000) of Division
149.



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