BILL NUMBER: AB 355	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 9, 2009
	AMENDED IN ASSEMBLY  APRIL 30, 2009

INTRODUCED BY   Assembly Member Ammiano

                        FEBRUARY 19, 2009

   An act to amend Section 12590 of, and to add Chapter 3.5
(commencing with Section 12577) to Part 13 of Division 7 of, the
Probate Code, relating to decedent's estates.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 355, as amended, Ammiano. Decedent's estates: sister state
personal representatives.
   (1) Existing law provides a procedure by which a sister state
personal representative of a nondomiciliary decedent may, without
petitioning for an ancillary probate administration, use an affidavit
procedure to collect personal property of the decedent, provided
that the value of the estate is under $100,000, except as specified.
   This bill would create a procedure by which a sister state
personal representative of a nondomiciliary decedent is permitted to
use an affidavit procedure to collect personal property of a decedent
when the  gross  value of the estate is in excess of
$100,000, the decedent  does   did not own
real property in California  at the time of death  , and the
sister state personal representative satisfies certain notice
requirements. The bill would specify the form of  the 
affidavit  or declaration  , to be made under penalty of
perjury. By changing the definition of the crime of perjury, this
bill would impose a state-mandated local program. The bill would
require that the sister state personal representative provide
relevant evidence of ownership.  The bill would require that
reasonable proof of the identity of the sister state personal
representative executing the affidavit or declaration be  
provided to the holder of the decedent's property, as specified.
 The bill would provide, upon satisfying the requirements of the
procedure, that the sister state personal representative may compel
the holder of the property at issue to deliver it, and would provide
for an award of attorney's fees in an action to enforce this right if
the court finds that the person holding the property acted
unreasonably. The bill would provide that a property holder who
surrenders property pursuant to this process is released from
liability, as specified. The bill would prohibit the use of this
procedure if an administration of the decedent's estate is pending,
and would provide that the payment or delivery of property pursuant
to its provisions would not preclude later proceedings. The bill
would specify how property is to be restored to the decedent's estate
if proceedings are later commenced. The bill would specify that its
provisions do not apply to transfer of real property. The bill would
permit a public administrator who has possession of a decedent's
property to refuse to deliver it if payment of specified costs and
fees has not first been made. The bill would provide that a public
administrator who receives an affidavit as prescribed by these
provisions does not have any obligation to administer the decedent's
estate or to petition for the administration of the estate.
   (2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 3.5 (commencing with Section 12577) is added to
Part 13 of Division 7 of the Probate Code, to read:
      CHAPTER 3.5.  COLLECTION OF PERSONAL PROPERTY OF LARGER ESTATES
BY SISTER STATE PERSONAL REPRESENTATIVE WITHOUT ANCILLARY
ADMINISTRATION


   12577.  If the  gross  value of a nondomiciliary decedent'
s property in this state exceeds the dollar amount specified in
Section 13100, if 120 days have elapsed since the publication of a
notice to creditors as described in Section 12578, if the decedent
did not own real property in California  at the time of death
 , and if the other requirements of this chapter are met, a
sister state personal representative may, without petitioning for
ancillary administration, use the procedure described in this chapter
to collect or have transferred personal property of the decedent.
For purposes of this chapter, personal property includes money,
tangible personal property, evidences of a debt, obligation,
interest, right, security, or chose in action.
   12578.  (a) To collect or have transferred personal property under
this chapter, a sister state personal representative shall cause
publication of a notice to creditors as described in paragraph (4),
shall give notice of the decedent's death as described in paragraph
(5), and shall conduct a diligent search for real property owned in
California by the decedent and conclude, to the best of his or her
knowledge and belief, that the decedent did not own property in
California. The sister state personal representative shall then
furnish an affidavit or a declaration made under penalty of perjury
to the holder of the decedent's property stating all of the
following:
   (1) The decedent's name.
   (2) The date and place of the decedent's death.
   (3) "At least 120 days have elapsed since the death of the
decedent, as shown in a certified copy of the decedent's death
certificate attached to this affidavit or declaration."
   (4) "At least 120 days prior to the date of this affidavit or
declaration, affiant or declarant has caused to be published in a
newspaper of general circulation in the city where the property
sought under this affidavit or declaration is located a notice to
creditors substantially similar in form to that described in Section
9052. Time and manner of publication was governed by the provisions
of Section 8121 and a copy of this notice, together with an affidavit
of publication for it, is attached to this affidavit or declaration."

   (5) "At least 120 days prior to the date of this affidavit or
declaration, affiant or declarant has given notice of decedent's
death and the administration of decedent's estate by the sister state
representative to all parties entitled to notice under Section 9202."

   (6) "No proceeding, or an application or petition for a
proceeding, is now being, or has been, conducted in California for
administration of the decedent's estate."
   (7) "Affiant or declarant has made diligent search and hereby
affirms or declares under penalty of perjury that to the best of
affiant's or declarant's knowledge and belief, decedent did not own
real property in the state of California."
   (8) A description of the property of the decedent that is to be
paid, transferred, or delivered to the affiant or declarant.
   (9) "The affiant or declarant is the duly-appointed personal
representative of the decedent in the state where the decedent was
domiciled."
   (10) "No other person has a superior right to the interest of the
decedent in the described property."
   (11) "The affiant or declarant requests that the described
property be paid, delivered, or transferred to the affiant or
declarant."
   (12) "The affiant or declarant affirms or declares under penalty
of perjury under the laws of the State of California that the
foregoing is true and correct."
   (b) If more than one personal representative executes the
affidavit or declaration under this section, the statements required
by subdivision (a) shall be modified as appropriate.
   (c) If an item of property to be transferred under this chapter is
a debt or other obligation secured by a lien on real property and
the instrument creating the lien has been recorded in the office of
the county recorder of the county where the real property is located,
the affidavit or declaration shall satisfy the requirements both of
this section and of Section 13106.5.
   (d) A certified copy of the decedent's death certificate shall be
attached to the affidavit or declaration.
   (e) A certified copy of the affiant's or declarant's letters
testamentary, letters of administration, or the equivalent document
in the state where the decedent was domiciled shall be attached to
the affidavit or declaration. The certified copy shall be certified
within 60 days of the presentation to the holder of the property.

   (f) Reasonable proof of the identity of the sister state personal
representative executing the affidavit or declaration shall be
provided to the holder of the decedent's property in the manner
described in Section 13104. 
   12579.  (a) If the decedent had evidence of ownership of the
property described in the affidavit or declaration and the holder of
the property would have had the right to require presentation of the
evidence of ownership before the duty of the holder to pay, deliver,
or transfer the property to the decedent would have arisen, the
evidence of ownership, if available, shall be presented with the
affidavit or declaration to the holder of the decedent's property.
   (b) If the evidence of ownership is not presented to the holder
pursuant to subdivision (a), the holder may require, as a condition
for the payment, delivery, or transfer of the property, that the
person presenting the affidavit or declaration provide the holder
with a bond or undertaking in a reasonable amount determined by the
holder to be sufficient to indemnify the holder against all
liability, claims, demands, loss, damages, costs, and expenses that
the holder may incur or suffer by reason of the payment, delivery, or
transfer of the property. Nothing in this subdivision precludes the
holder and the person presenting the affidavit or declaration from
dispensing with the requirement that a bond or undertaking be
provided and instead entering into an agreement satisfactory to the
holder concerning the duty of the person presenting the affidavit or
declaration to indemnify the holder.
   12580.  (a) If the requirements of Sections 12577 to 12579,
inclusive, are satisfied:
   (1) The sister state personal representative is entitled to have
the property described in the affidavit or declaration paid,
delivered, or transferred to him or her.
   (2) A transfer agent of a security described in the affidavit or
declaration shall change the registered ownership on the books of the
corporation from the decedent to the sister state personal
representative.
   (b) If the holder of the decedent's property refuses to pay,
deliver, or transfer any personal property or evidence of it to the
sister state personal representative within a reasonable time, the
sister state personal representative may recover the property or
compel its payment, delivery, or transfer in an action brought for
that purpose against the holder of the property. If an action is
brought against the holder under this section, the court shall award
reasonable attorney's fees to the person or persons bringing the
action if the court finds that the holder of the decedent's property
acted unreasonably in refusing to pay, deliver, or transfer the
property to them as required by subdivision (a).
   12581.  If the requirements of Sections 12577 to 12579, inclusive,
are satisfied:
   (a) Receipt by the holder of the decedent's property of the
affidavit or declaration constitutes sufficient acquittance for the
payment of money, delivery of property, or changing registered
ownership of property pursuant to this chapter and discharges the
holder from any further liability with respect to the money or
property. The holder may rely in good faith on the statements in the
affidavit or declaration and has no duty to inquire into the truth of
any statement in the affidavit or declaration.
   (b) The holder of the decedent's property is not liable for any
taxes due to this state by reason of paying money, delivering
property, or changing registered ownership of property pursuant to
this chapter.
   12582.  Where the money or property claimed in an affidavit or
declaration executed under this chapter is the subject of a pending
action or proceeding in which the decedent was a party, the sister
state personal representative of the decedent, without procuring
letters of administration or awaiting probate of the will, shall be
substituted as a party in place of the decedent by making a motion
under Article 3 (commencing with Section 377.30) of Chapter 4 of
Title 2 of Part 2 of the Code of Civil Procedure. The sister state
personal representative of the decedent shall file the affidavit or
declaration with the court when the motion is made. For the purpose
of Article 3 (commencing with Section 377.30) of Chapter 4 of Title 2
of Part 2 of the Code of Civil Procedure, a sister state personal
representative of the decedent who complies with this chapter shall
be considered as a successor in interest of the decedent.
   12583.  (a) The procedure provided by this chapter may be used
only if no proceeding for the administration of the decedent's estate
is pending or has been conducted in this state.
   (b) Payment, delivery, or transfer of a decedent's property
pursuant to this chapter does not preclude later proceedings for
administration of the decedent's estate.
   12584.  (a) Subject to the provisions of this section, if
proceedings for the administration of the decedent's estate are
commenced in this state, and the personal representative later
requests that the property be restored to the estate, the sister
state personal representative to whom payment, delivery, or transfer
of the decedent's property is made under this chapter is liable for:
   (1) The restitution of the property to the estate if the sister
state personal representative still has the property, together with
the net income the sister state personal representative received from
the property and, if the sister state personal representative
encumbered the property after it was delivered or transferred to the
sister state personal representative, the amount necessary to satisfy
the balance of the encumbrance as of the date the property is
restored to the estate.
   (2) The restitution to the estate of the fair market value of the
property if the sister state personal representative no longer has
the property, together with the net income the sister state personal
representative received from the property and interest on the fair
market value of the property from the date of disposition at the rate
payable on a money judgment. For the purposes of this subdivision,
the "fair market value of the property" is the fair market value,
determined as of the time of the disposition of the property, of the
property paid, delivered, or transferred to the sister state personal
representative under this chapter, less any liens and encumbrances
on the property at that time.
   (b) If any person fraudulently secures the payment, delivery, or
transfer of the decedent's property under this chapter, that person
is liable under this section for restitution to the decedent's estate
of three times the fair market value of the property. For the
purposes of this subdivision, the "fair market value of the property"
is the fair market value, determined as of the time the person
liable under this subdivision presents the affidavit or declaration
under this chapter, of the property paid, delivered, or transferred
to that person under this chapter, less the amount of any liens and
encumbrances on the property at that time.
   (c) The property and amount required to be restored to the estate
under this section shall be reduced by:
   (1) Any property or amount paid by the sister state personnel
representative to satisfy unsecured debts of decedent as provided in
Section 12585.
   (2) Administrative expenses paid or distributions made in good
faith and pursuant to the law of the sister state.
   (d) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
decedent. In an action to enforce the liability under this section,
the court's judgment may enforce the liability only to the extent
necessary to protect the interests of the heirs, devisees, and
creditors of the decedent.
   (e) An action to enforce the liability under this section is
forever barred three years after presentation of the affidavit or
declaration under this chapter to the holder of the decedent's
property, or three years after the discovery of the fraud, whichever
is later. The three-year period specified in this subdivision is not
tolled for any reason.
   (f) In the case of a nondomiciliary decedent, restitution under
this section shall be made to the estate in an ancillary
administration proceeding.
   12585.  A sister state personal representative to whom payment,
delivery, or transfer of the decedent's property is made under this
chapter is liable, to the extent provided in Section 12590, for the
unsecured debts of the decedent. Any such debt may be enforced
against the sister state personal representative in the same manner
as it could have been enforced against the decedent if the decedent
had not died. In any action based upon the debt, the sister state
personal representative may assert any defenses, cross-complaints, or
setoffs that would have been available to the decedent if the
decedent had not died. Nothing in this section permits enforcement of
a claim that is barred under Part 4 (commencing with Section 9000)
of Division 7. Section 366.2 of the Code of Civil Procedure applies
in an action under this section.
   12586.  (a) A public administrator who has taken possession or
control of property of a decedent under Article 1 (commencing with
Section 7600) of Chapter 4 of Part 1 of Division 7 may refuse to pay
money or deliver property pursuant to this chapter if payment of the
costs and fees described in Section 7604 has not first been made or
adequately assured to the satisfaction of the public administrator.
   (b) A coroner who has property found upon the body of a decedent,
or who has taken charge of property of the decedent pursuant to
Section 27491.3 of the Government Code, may refuse to pay or deliver
the property pursuant to this chapter if payment of the reasonable
costs of holding or safeguarding the property or of appropriate
disposition of the decedent's remains has not first been made or
adequately assured to the satisfaction of the coroner.
   (c) Upon receipt of the affidavit or declaration described herein,
the public administrator identified in Section 7620 shall not have
any obligation to administer the decedent's estate or to petition for
the administration of the estate.
   12587.  The procedure provided in this chapter may not be used to
obtain possession or the transfer of real property.
   12588.  The procedure provided in this chapter is in addition to
and supplemental to any other procedure for collecting money due to a
decedent, receiving tangible personal property of a decedent, or
having evidence of ownership of property of a decedent transferred.
Nothing in this chapter restricts or limits the release of tangible
personal property of a decedent pursuant to any other provision of
law.
  SEC. 2.  Section 12590 of the Probate Code is amended to read:
   12590.  A sister state personal representative or foreign nation
personal representative submits personally in a representative
capacity to the jurisdiction of the courts of this state in any
proceeding relating to the estate by any of the following actions:
   (a) Filing a petition for ancillary administration.
   (b) Receiving money or other personal property pursuant to Chapter
3 (commencing with Section 12570) or Chapter 3.5 (commencing with
Section 12577). Jurisdiction under this subdivision is limited to the
amount of money and the value of personal property received.
   (c) Doing any act in this state as a personal representative that
would have given this state jurisdiction over the personal
representative as an individual.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.