BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2271 (Silva)
As Amended March 17, 2010
Hearing Date: June 10, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Probate: Appeals
DESCRIPTION
This bill, sponsored by the Conference of California Bar
Associations, would authorize a trial court to appoint a
temporary trustee to exercise powers over a trust during the
appeal of certain judgments and orders.
BACKGROUND
AB 1172 (Kaloogian, Chapter 724, Statutes of 1997) consolidated
the various appeal provisions under the Probate Code and
provided the circumstances under which an appeal stays an order
during the pendency of the appeal. Under the provisions of AB
1172, the court could appoint a temporary guardian or
conservator of the person or estate, or a special administrator
to exercise fiduciary powers for the purpose of preventing
injury or loss to a person or property. AB 1669 (Committee on
Judiciary, Chapter 688, Statutes of 2000) added bond
requirements to these appeal provisions.
This bill would authorize a court to appoint a temporary trustee
to exercise fiduciary powers to prevent loss to the trust
property during an appeal.
CHANGES TO EXISTING LAW
Existing law provides that a party may appeal certain court
orders. (Prob. Code Sec. 1300 et seq.)
(more)
AB 2271 (Silva)
Page 2 of ?
Existing law provides that an appeal under Probate Code Section
1300 et seq. stays the operation and effect of the judgment or
order. (Prob. Code Sec. 1310 (a).)
Existing law provides that during an appeal pursuant to Probate
Code Section 1300 et seq. of a court order, the court may
appoint a temporary guardian, conservator, or special
administrator to exercise fiduciary powers. (Prob. Code Sec.
1310 (b).)
This bill would authorize the court to appoint a temporary
trustee to exercise fiduciary powers during an appeal pursuant
to Probate Code Section 1300 et seq.
COMMENT
1. Stated need for the bill
The author writes:
Current law does not permit a court to appoint a temporary
trustee to manage an estate in probate after the court has
ordered the trustee removed and the trustee has appealed the
court's decision. In most cases, the court's decision to
remove the trustee is because of a need to protect the trust
estate and beneficiaries from the trustee's incompetence,
dishonesty, or both. Yet existing law permits the incompetent
or dishonest trustee to remain in authority until the appeal
has run its course, threatening to compound the damage already
done to the trust estate.
2. Court's discretion to appoint temporary trustee
Probate Code Section 1300 et seq. provides a number of
proceedings on which appeals may be taken, one of which is the
removal of a fiduciary. (Probate Code Sec. 1300(g).) In this
instance, a beneficiary may bring a suit for removal of a
trustee under Probate Code Section 17200, and the trustee who
has been removed may appeal the removal order. This appeal
stays the removal of the trustee, allowing the trustee to
continue to exercise control over the trust. (Prob. Code Sec.
1310(a).) The obvious concern is that the trustee may continue
to perform the tortious acts to the trust property for which he
or she was removed. A trustee who has been removed should not
be allowed to maintain control over the trust during an appeal.
However, given the long list of other appealable orders under
AB 2271 (Silva)
Page 3 of ?
Probate Code Section 1300 et seq., it is conceivable that not
every proceeding would necessitate the appointment of a
temporary trustee. For this reason, this bill leaves that
decision up to the discretion of the courts.
3. Technical amendment
Due to a drafting error on page 2, a technical amendment is
needed. This bill was first amended to add that a payment of
money pursuant to a court order on appeal could also be paid
from the trust. This bill was amended a second time to remove
this provision. However, the sentence was not completely
amended to return it to the original language of the statute.
The word "or" was not placed back in between "Section 7000),"
and "from the estate." For this reason the author has agreed to
take the following technical amendment in committee:
Suggested Amendment :
On line 2, line 29 delete "," between "7000)" and "from" and
insert "or".
Support : The Executive Committee of the Trusts and Estates
Section of the State Bar; Judicial Council of California
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation : (See Background.)
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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