BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1163|
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CONSENT
Bill No: AB 1163
Author: Tran (R)
Amended: 03/26/09 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/9/09
AYES: Corbett, Harman, Florez, Leno, Walters
ASSEMBLY FLOOR : 77-0, 4/27/09 - (Consent), See last page
for vote
SUBJECT : Attorney-client privilege: decedent's estates
SOURCE : California Law Revision Commission
DIGEST : This bill makes several clarifications to the
attorney-client privilege that apply after the client's
death.
ANALYSIS :
Existing law defines, for the purposes of attorney-client
privilege, the "holder of the privilege" as: (a) the
client when he has no guardian or conservator; (b) a
guardian or conservator of the client when the client has a
guardian or conservator; (c) the personal representative of
the client if the client is dead; or (d) a successor,
assign, trustee in dissolution, or any similar
representative of an entity that is no longer in existence.
(Evidence Code Section 953.)
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Existing law provides that a client of a lawyer has a
privilege to refuse to disclose, and to prevent another
from disclosing, a confidential communication between the
client and lawyer if the privilege is claimed by: (a) the
holder of the privilege; (b) a person who is authorized to
claim the privilege by the holder; or (c) the person who
was the lawyer at the time of the confidential
communication. (Evidence Code Section 954.)
Existing law provides that a lawyer may not claim the
privilege if there is no holder of the privilege in
existence or if he/she is otherwise instructed by a person
authorized to permit disclosure. (Evidence Code Section
954.)
Existing law provides that there is no attorney-client
privilege for communications relevant to issues between
parties who all claim through a deceased client regardless
of whether the claims arise through testate or intestate
succession or through inter vivos (during life)
transaction. (Evidence Code Section 954.)
Existing law provides that if subsequent administration of
an estate is necessary after the personal representative
has been discharged because (a) other property is
discovered, (b) disclosure is sought of a communication
that is deemed privileged in the absence of a waiver by a
personal representative, or (c) it becomes necessary or
proper for any cause, the court is required to appoint a
personal representative and give notice of the hearing of
the appointment, as provided. (Probate Code Section
12252.)
Existing law provides that the appointed representative is
a holder of the attorney-client privilege. (Probate Code
Section 12252.)
This bill clarifies that the attorney-client privilege is
held by a deceased client's personal representative
appointed for subsequent estate administration after the
original personal representative has been discharged.
This bill provides that no attorney-client privilege exists
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for communications relevant to issues between parties who
all claim through a deceased client in a nonprobate
transfer.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/10/09)
California Law Revision Commission (source)
Judicial Council; Trusts & Estates Section of the State Bar
ARGUMENTS IN SUPPORT : The author's office states, the
clarifications in this bill helps avoid disputes over the
meaning of [Probate Code] Section 12252, thereby conserving
resources. Further, the clarifications increases the
predictability of the attorney-client privilege and thereby
promotes a long-standing purpose of the privilege, to
encourage communication between clients and their
attorneys, without fear that the attorney may be forced to
reveal the communication.
The author's office further states, since the enactment of
[Evidence Code] Section 957, there has been a dramatic
increase in the number of nonprobate transfers. Many
at-death transfers now occur outside of probate. If the
exception in Section 957 did not extend to a dispute
involving a nonprobate transfer, the decedent's
attorney-client privilege will be applicable, and may block
relevant evidence of the decedent's donative intent. By
making clear that the exception in Section 957 applies to
any dispute between the deceased client's beneficiaries,
including a dispute involving a beneficiary of a nonprobate
transfer, this bill helps to ensure that a deceased
client's donative intent is implemented correctly.
Additionally, this bill helps avoid disputes over the scope
of Section 957, thereby conserving resources.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, B.
Berryhill, T. Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, De Vore,
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Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Lowenthal,
Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielson, J. Perez, V.M. Perez, Portantino, Price, Ruskin,
Salas, Silva, Skinner, Smyth, Solorio, Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
RJG:do 6/10/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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