BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 785|
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                                      CONSENT 


          Bill No:  SB 785
          Author:   Morrell (R)
          Amended:  4/6/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 5/5/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           SUBJECT:   Estates and trusts:  creditors claim


          SOURCE:    Conference of California Bar Associations


          DIGEST:   This bill clarifies the definitions of "probate  
          estate" and "trust estate" for purposes of filing a petition by  
          a trustee for the payments of claims, debts, and expenses from a  
          revocable trust of the deceased settlor. 


          ANALYSIS:   


          Existing law:


          1)Provides that title to a decedent's property, subject to  
            probate administration and the rights of beneficiaries,  
            creditors, and other persons as provided by law, passes on the  
            decedent's death to the person to whom it is devised in the  
            decedent's last will or, in the absence of such a devise, to  
            the decedent's heirs as prescribed in the laws governing  
            intestate succession.









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          2)Provides that if the settlor retains the power to revoke the  
            trust in whole or in part, the trust property is subject to  
            the claims of creditors of the settlor to the extent of the  
            power of revocation during the lifetime of the settlor.

          3)Provides a process by which a trustee of a deceased settlor's  
            revocable trust may petition the court for the payment of  
            claims, debts, and expenses from the revocable trust to a  
            creditor.  

          This bill:

          1)Clarifies the terms "probate estate" and "trust estate" for  
            purposes of that petition process.

          2)Defines "probate estate" to mean a decedent's estate subject  
            to administration, as specified, and defines "trust estate" to  
            mean a decedent's property, real and personal, that is titled  
            in the name of the trustee of the deceased settlor's trust or  
            confirmed by order of the court to the trustee of the deceased  
            settlor's trust.
           
           3)Makes conforming changes in the Probate Code.


          Background


          As part of a person's estate planning, he or she may create a  
          trust into which the person transfers specified property.   
          Trusts are commonly used to avoid probate of the person's estate  
          upon the person's death and may provide certain tax advantages  
          relative to the property.  There are two types of trust estate  
          plans; a testamentary trust, which is written into a will and  
          becomes effective upon death, and a living or inter vivos trust,  
          which is created by a separate document.  There are two types of  
          inter vivos trusts, revocable and irrevocable.  Unlike an  
          irrevocable trust, a revocable trust allows the person creating  
          the trust, referred to as the settlor, to instruct the trustee  
          to pay over all or any portion of the trust property, revoke,  
          alter, and amend the trust.









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          Multiple settlors may create one revocable trust, and married  
          persons commonly create a joint revocable trust, which allows  
          the surviving spouse to alter or amend the trust after the other  
          spouse's death or revoke, or terminate, the trust and distribute  
          the trust property.  A joint revocable trust may contain the  
          spouses' community property and separate property.

          Assets in a revocable trust at the settlor's death are available  
          to raise cash to pay estate taxes, administration expenses and  
          debts immediately after death, without waiting for a probate  
          decree or issuance of preliminary letters.  If the trust is  
          funded prior to death, the property in the trust remains in the  
          trustee's name before and after the death and is immediately  
          available for liquidation should the need arise. 

          After the death of the settlor (or decedent), existing law  
          authorizes the trustee to handle the claims of creditors against  
          the property of a revocable trust.  These procedures authorize  
          the trustee to act even though the decedent's estate has not  
          been administered in probate.  Probate administration is a  
          proceeding through which the court supervises the disbursement  
          of a decedent's real and personal property.  The probate estate  
          is that part of the decedent's property that is subject to  
          administration in probate.  The trust estate is the portion of  
          the decedent's property that is titled in the name of the  
          trustee of the deceased settlor's trust.  This bill clarifies  
          the definitions of and references to "trust estate" and "probate  
          estate" in relation to a trustee's handling of creditor claims  
          for which the trust may be liable.




          Comments


          The author writes:
          
            The provisions of the Probate Code relating to creditor claim  
            procedures against estates held in trust currently do not  
            specify where and under what circumstances the terms "deceased  
            settlor's estate" and "estate of the deceased settlor" refers  








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            to a decedent's probate estate, and when the reference to  
            "estate" refers to the decedent's trust estate. 

            This uncertainty leads to confusion by creditors, attorneys  
            representing creditors, and some inexperienced judicial  
            officers - which confusion leads, in turn, to misapplication  
            of the law, which can result in additional, wasteful  
            litigation. Providing a clear definition and specifying in the  
            code what type of estate - probate or trust - is being  
            referenced will help avoid this misapplication and unnecessary  
            litigation.
            
            SB 785 would provide a clear definition of "probate estate"  
            and "trust estate" in Probate Code [Section] 19000, the  
            definitional section in the Part relating to trust creditor  
            claims, and updates the subsequent code sections in the Part  
            to specify which type of estate is meant in each.
          
          Prior Legislation


          AB 341 (Spitzer, Chapter 159, Statutes of 2007), among other  
          things, harmonized separate Probate Code provisions for creditor  
          claims against a trust and against an estate in probate, such as  
          provisions for notice to creditors, statutes of limitations for  
          filing creditors' claims, and allowance for late claims.

          AB 2751 (Kaloogian, Chapter 862, Statutes of 1996), among other  
          things, clarified whether creditor's claims to a trust may be  
          accrued or not accrued.

          SB 727 (Calderon, Chapter 992, Statutes of 1991) enacted  
          provisions relating to the payment of claims, debts, and  
          expenses from the revocable trust of a deceased settlor,  
          specifically with respect to the filing of a petition for  
          approval and settlement of claims, the publication and provision  
          of notice to creditors, the filing of claims, the allowance and  
          rejection of claims, the establishment of claims by money  
          judgments, the allocation of debts between the trust and the  
          settlor's surviving spouse, and the liability of the surviving  
          spouse of the settlor.









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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified5/7/15)


          Conference of California Bar Associations (source)
          Executive Committee of the Trusts and Estates Section of the  
            California State Bar
          Judicial Council of California


          OPPOSITION:   (Verified5/7/15)


          None received



          Prepared by:Tara Welch / JUD. / (916) 651-4113
          5/8/15 15:09:25


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