BILL ANALYSIS
AB 2271
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CONCURRENCE IN SENATE AMENDMENTS
AB 2271 (Silva)
As Amended June 16, 2010
Majority vote
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|ASSEMBLY: |76-0 |(April 5, 2010) |SENATE: |31-0 |(June 24, |
| | | | | |2010) |
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Original Committee Reference: JUD.
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.
The Senate amendments were non-substantive.
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.
2)Except as specified, an appeal of a probate order stays the
operation and effect of the order.
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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the Conference of California
AB 2271
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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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0004931