Senate BillNo. 1271


Introduced by Senator Moorlach

February 18, 2016


An act to amend Sections 13651 and 13656 of the Probate Code, relating to summary probate procedures.

LEGISLATIVE COUNSEL’S DIGEST

SB 1271, as introduced, Moorlach. Summary probate procedures.

Existing law authorizes a surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse to file a petition in the superior court of the county in which the estate of the deceased spouse may be administered requesting an order that administration of all or part of the estate is not necessary because all or part of the estate is property passing to the surviving spouse. Existing law specifies the contents of that petition, including, among other things, a description of the property of the deceased spouse which the petitioner alleges is property passing to the surviving spouse and the facts upon which the petitioner bases the allegation that all or part of the estate of the deceased spouse is property passing to the surviving spouse. Existing law provides that if the court finds that all of the estate of the deceased spouse is property passing to the surviving spouse, then the court is required to issue an order describing the property, as specified. Existing law also provides that if the court finds that all or part of the estate of the deceased spouse is not property passing to the surviving spouse, then the court is required to issue an order, as specified. Existing law allows the court, in a case in which property is passing to the surviving spouse or in which property is not passing to the surviving spouse, to issue any further orders that may be necessary to cause delivery of the property or its proceeds to the surviving spouse.

This bill would require the above petition to also include reference to any agreements between the deceased spouse and the surviving spouse affecting the character of property and a description of the property as either community or separate property. This bill would authorize a court to issue orders determining whether any property, or interest therein, of the deceased spouse’s estate passing to the surviving spouse is separate property or community property.

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

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

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SECTION 1.  

Section 13651 of the Probate Code is amended
2to read:

3

13651.  

(a) A petition filed pursuant to Section 13650 shall
4allege that administration of all or a part of the estate of the
5deceased spouse is not necessary for the reason that all or a part
6of the estate is property passing to the surviving spouse, and shall
7set forth all of the following information:

8(1) If proceedings for the administration of the estate are not
9pending, the facts necessary to determine the county in which the
10estate of the deceased spouse may be administered.

11(2) A description of the property of the deceased spouse which
12the petitioner alleges is property passing to the surviving spouse,
13including the trade or business name of any property passing to
14the surviving spouse that consists of an unincorporated business
15or an interest in an unincorporated business which the deceased
16spouse was operating or managing at the time of death, subject to
17any written agreement between the deceased spouse and the
18surviving spouse providing for a non pro rata division of the
19aggregate value of the community property assets or
20quasi-community assets, or both.

21(3) The facts upon which the petitioner bases the allegation that
22all or a part of the estate of the deceased spouse is property passing
23to the survivingbegin delete spouse.end deletebegin insert spouse, including reference to any
24agreements between the deceased spouse and the surviving spouse
25affecting the character of the property.end insert

begin insert

26(4) A description of the property as either community or separate
27property.

end insert
begin delete

28(4)

end delete

P3    1begin insert(5)end insert A description of any interest in the community property or
2quasi-community property, or both, which the petitioner requests
3the court to confirm to the surviving spouse as belonging to the
4surviving spouse pursuant to Section 100 or 101, subject to any
5written agreement between the deceased spouse and the surviving
6spouse providing for a non pro rata division of the aggregate value
7of the community property assets or quasi-community assets, or
8both.

begin delete

9(5)

end delete

10begin insert(6)end insertbegin insertend insertbegin insert(A)end insertbegin insertend insertThe name, age, address, and relation to the deceased
11spouse of each heir and devisee of the deceased spouse, the names
12and addresses of all persons named as executors of the will of the
13deceased spouse, and the names and addresses of all persons
14appointed as personal representatives of the deceased spouse,
15which are known to the petitioner.

begin delete

16 Disclosure

end delete

17begin insert(B)end insertbegin insertend insertbegin insertDisclosureend insert of any written agreement between the deceased
18spouse and the surviving spouse providing for a non pro rata
19division of the aggregate value of the community property assets
20or quasi-community property assets, or both, or the affirmative
21statement that this agreement does not exist. If a dispute arises as
22to the division of the community property assets or
23quasi-community property assets, or both, pursuant to this
24agreement,begin insert or pursuant to allegations contained in the petition as
25to the characterization of the property as community property or
26separate property,end insert
the court shall determine the division subject
27to terms and conditions or other remedies that appear equitable
28under the circumstances of the case, taking into account the rights
29of all interested persons.

30(b) If the petitioner bases the allegation that all or part of the
31estate of the deceased spouse is property passing to the surviving
32spouse upon the will of the deceased spouse, a copy of the will
33shall be attached to the petition.

34(c) If the petitioner bases the description of the property of the
35deceased spouse passing to the surviving spouse or the property
36to be confirmed to the surviving spouse, or both, upon a written
37agreement between the deceased spouse and the surviving spouse
38providing for a non pro rata division of the aggregate value of the
39community property assets or quasi-community assets, or both, a
40copy of the agreement shall be attached to the petition.

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SEC. 2.  

Section 13656 of the Probate Code is amended to read:

2

13656.  

(a) If the court finds that all of the estate of the deceased
3spouse is property passing to the surviving spouse, the court shall
4issue an order describing the property, determining that the property
5is property passing to the surviving spouse, and determining that
6no administration is necessary. The court may issue any further
7orders which may be necessary to cause delivery of the property
8or its proceeds to the survivingbegin delete spouse.end deletebegin insert spouse, including orders
9determining whether any property, or interest therein, of the
10deceased spouse’s estate passing to the surviving spouse is
11separate property or community property.end insert

12(b) If the court finds that all or part of the estate of the deceased
13 spouse is not property passing to the surviving spouse, the court
14shall issue an orderbegin delete (1) describing anyend deletebegin insert describing both of the
15following:end insert

16begin insert(1)end insertbegin insertend insertbegin insertAnyend insert property which is not property passing to the surviving
17spouse, determining that that property does not pass to the
18surviving spouse and determining that that property is subject to
19administration under thisbegin delete code and (2) describing theend deletebegin insert code.end insert

20begin insert(2)end insertbegin insertend insertbegin insertTheend insert property, if any, which is property passing to the
21surviving spouse, determining that that property passes to the
22surviving spouse, and determining that no administration of that
23property is necessary. If the court determines that property passes
24to the surviving spouse, the court may issue any further orders
25which may be necessary to cause delivery of that property or its
26proceeds to the survivingbegin delete spouse.end deletebegin insert spouse, including orders
27determining whether any property, or interest therein, of the
28deceased spouse’s estate passing to the surviving spouse is
29separate property or community property.end insert

30(c) If the petition filed under this chapter includes a description
31of the interest of the surviving spouse in the community or
32quasi-community property, or both, which belongs to the surviving
33spouse pursuant to Section 100 or 101 and the court finds that the
34interest belongs to the surviving spouse, the court shall issue an
35order describing the property and confirming the ownership of the
36surviving spouse and may issue any further orders which may be
37necessary to cause ownership of the property to be confirmed in
38the surviving spouse.



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