BILL ANALYSIS Ó SB 785 Page 1 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 SB 785 Page 2 "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. SB 785 Page 3 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 SB 785 Page 4 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 SB 785 Page 5 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 SB 785 Page 6