BILL ANALYSIS
AB 2271
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Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2271 (Silva) - As Amended: March 17, 2010
PROPOSED CONSENT
SUBJECT : PROBATE: APPEALS
KEY ISSUE : IN ORDER TO PROTECT A TRUST'S ASSETS AND
BENEFICIARIES, SHOULD A COURT BE PERMITTED TO APPOINT A
TEMPORARY TRUSTEE TO PROTECT A TRUST WHILE AN ORDER IS ON
APPEAL?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Conference of
California Bar Associations, seeks to protect a trust and its
beneficiaries from harm, pending appeal of a court order
concerning the trust. As a general rule, an appeal of an order
in probate court stays the order. This bill allows a court to
appoint a temporary trustee during appeal of an order regarding
the trust, such as an order removing the original trustee for
dishonesty. There is no known opposition to this bill.
SUMMARY : Expands a court's ability to protect a trust against
loss when an order is on appeal. Specifically, this bill allows
a court to appoint a temporary trustee when an appeal is pending
in order to prevent injury or loss to a person or property.
EXISTING LAW :
1)Sets forth orders that may be appealed under the probate code,
including orders directing or authorizing a fiduciary, and
allowing or denying a petition of the fiduciary to resign.
(Probate Code Section 1300. All further statutory references
are to that code.)
2)Except as specified, an appeal of a probate order stays the
operation and effect of the order. (Section 1310(a).)
AB 2271
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3)Notwithstanding #2, provides that, for the purpose of
preventing injury or loss to a person or property, the court
may direct the exercise of the powers of the fiduciary, or may
appoint a temporary guardian or conservator of the person or
estate, or both, or a special administrator, to exercise the
powers as if no appeal were pending. Provides that all acts
of the fiduciary pursuant to the directions of the court are
valid, irrespective of the result of the appeal and that
appeal of these directions made by the court will not stay the
directions. (Section 1310(b).)
COMMENTS : This bill, sponsored by the Conference of California
Bar Associations, seeks to protect a trust and its beneficiaries
from harm, pending appeal of a court order concerning the trust.
As a general rule, an appeal of an order in probate stays the
order. Under existing law, if an appeal is pending in a probate
matter, a court may, in order to prevent injury or loss to a
person or property, direct the exercise of the powers of a
fiduciary, or may appoint a temporary guardian or conservator of
the person or estate, or a special administrator, to exercise
the powers as if no appeal were pending. In this case, the
actions of the fiduciary, made pursuant to the court's
directions, are deemed valid, regardless of the result of the
appeal any appeal will not stay the actions of the fiduciary.
This bill allows the court to appoint a temporary trustee in
appropriate situations in order to prevent loss of injury to the
trust or the trust beneficiaries.
The need for this provision is best demonstrated by the
following example: Suppose a trustee is stealing funds from a
trust and one of the trust's beneficiaries, learning of the
theft, brings an action to remove the trustee. The court rules
in the beneficiary's favor and orders the removal of the
trustee, but the trustee appeals. Under existing law, the
removed trustee would continue to serve as trustee pending the
appeal, potentially raiding the trust before the appeal is
considered. The bill allows the court to appoint a temporary
trustee to protect the trust estate pending the appeal.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 2271
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Conference of California Bar Associations (sponsor)
Trusts & Estates Section of the State Bar
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334