BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 16, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          785 (Morrell) - As Amended April 6, 2015


                                  PROPOSED CONSENT

          SENATE VOTE:  36-0


          SUBJECT:  Estates and trusts: creditor's claim


          KEY ISSUE:  Should distinctions between a "probate estate" AND A  
          "Trust Estate" be Made MORE clear in specific sections of the  
          probate code? 


                                      SYNOPSIS


          This non-controversial bill defines "probate estate" and "trust  
          estate" for purposes of a trustee's petition to pay a creditor's  
          claims and expenses from the assets of a revocable trust.   
          Existing law provides that when the "probate estate" (i.e. the  
          portion of a decedent's property subject to probate) is  
          insufficient to satisfy the claims of creditors, any of the  
          decedent's assets that are placed in a revocable trust (the  
          "trust estate") are subject to the claims of the decedent's  
          creditors.  However, according to the sponsor, the existing  
          statute speaks in terms of the "settlor's estate" or simply  








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          "estate," without specifying whether the referenced estate is a  
          "probate estate" or a "trust estate."  This bill expressly  
          defines "probate estate" to mean the property in the estate that  
          is subject to probate and defines "trust estate" to mean  
          property transferred to the trustee of the decedent's trust.  In  
          addition, the bill inserts the word "probate" before the word  
          "estate" in several sections of the Probate Code where the word  
          "estate" is intended to refer to a "probate estate."   
          Apparently, for experienced judges and estate planning lawyers,  
          the context of these statutes already implies that the word  
          "estate," as used in the amended sections, refers to a probate  
          estate and not the assets of a revocable living trust.  But for  
          those who may not be as familiar with these statutes, the  
          express language and definitions added by this bill will make  
          this meaning clear.  The bill is sponsored by the Conference of  
          California Bar Association and supported by the Judicial Council  
          of California.  There is no known opposition to this bill. 


          SUMMARY:  Defines "probate estate" and "trust estate" and  
          clarifies that certain references to "estate" in existing law  
          mean a "probate estate."  Specifically, this bill:  


          1)Defines "probate estate" to mean that part of the decedent's  
            estate which is subject to probate administration. 


          2)Defines "trust estate" to mean a decedent's property, real or  
            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 to specific sections of the Probate  
            Code by inserting the word "probate" before the word "estate"  
            where the term is clearly intended to refer to a probate  
            estate. 









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          EXISTING LAW:   


          1)Provides that upon the death of a settlor, any trust property  
            of the deceased settlor that is subject to the power of  
            revocation at the time of the settlor's death is subject to  
            the claims of creditors of the settlor's estate and the  
            expenses of estate administration if the settlor's estate  
            inadequately satisfies those claims and expenses.  (Probate  
            Code Section 19001 et seq.) 


          2)Sets forth the manner and timelines by which the trustee of a  
            deceased settlor's revovable trust must notify the settlor's  
            creditors and petition the court for payment of claims, debts,  
            and expenses from the revocable trust to the creditor's of the  
            settlor's estate.  (Probate Code Section 19001 et seq.) 


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


          COMMENTS:  Sponsored by the Conference of California Bar  
          Associations, this non-controversial bill defines "probate  
          estate" and "trust estate" for purposes of a trustee's petition  
          to pay creditor claims and expenses from the assets of a  
          revocable trust.  Traditionally, when a person dies, the  
          distribution of his or her estate is administered by a probate  
          court, with the property of the estate passing to either the  
          person or persons named in the last will and testament or, in  
          the absence of a will, in the manner prescribed in the statutes  
          governing intestate succession.  However, any property that the  
          decedent placed in a trust during his or her lifetime avoids  
          going through probate and is instead distributed by the trustee  
          in the manner specified by the trust instrument.  If the trust  
          instrument is a "revocable" trust - that is, one that the  
          settlor (the person creating the trust) can revoke, alter, or  








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          amend - then the trust assets are subject to any claims by the  
          settlor's creditors.  A decedent may simultaneously have some  
          assets that are subject to probate and others (that were placed  
          in a living trust during the settlor's lifetime) which are not.   
           


          Existing law provides that when the "probate estate" (i.e. that  
          property subject to probate) is insufficient to satisfy the  
          claims of creditors, assets in any revocable trust (the "trust  
          estate") are subject to the claims of the creditors of the  
          decedent's probate estate.  However, according to the sponsor,  
          the Conference of California Bar Associations, the existing  
          statute speaks in terms of the "deceased settlor's estate" or  
          simply the "estate" without specifying whether the referenced  
          estate is a "probate estate" or a "trust estate."  This bill  
          expressly defines "probate estate" to mean the property in the  
          estate that is subject to probate, and defines "trust estate" to  
          mean property that is transferred to the trustee of the  
          decedent's trust.  In addition, the bill inserts the word  
          "probate" before the word "estate" in several sections of the  
          Probate Code where the word "estate" is clearly intended to  
          refer to a "probate estate."  Apparently, for experienced judges  
          and estate planning lawyers, the context of these statutes  
          already implies that the "estate" mentioned in these statutes  
          refers a probate estate, not a trust estate.  But according to  
          the author and sponsor, the lack of clarity in the existing  
          statute creates "uncertainty [which] leads to confusion by  
          creditors, attorneys representing creditors, and some  
          inexperienced judicial officers."  This bill will expressly  
          identify an "estate" as a "probate estate," where appropriate,  
          to clarify the meaning of the term for the benefit of any  
          parties who are less experienced in these matters.


          ARGUMENTS IN SUPPORT:  According to the Judicial Council of  
          California, the "lack of clear definitions of key terms in  
          connection with trust creditor claims has the potential of  
          creating confusion for litigants and the courts, which can lead  








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          to unnecessary litigation.  SB 785 furthers the trial courts'  
          ability to resolve trust creditor claims in a timely and  
          efficient manner by clarifying the law in this area."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Conference of California Bar Associations (sponsor)


          Judicial Council of California




          Opposition


          None on file




          Analysis Prepared by:Thomas Clark / JUD. / (916)  
          319-2334
















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