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California Decedent Estate Practice

Comprehensive, in-depth coverage (including forms) of probate practice and procedures, summary probate proceedings, and transfers outside of probate.

Comprehensive, in-depth coverage (including forms) of probate practice and procedures, summary probate proceedings, and transfers outside of probate.

  • Procedures for transferring assets when formal probate is not required
  • Spouses and registered domestic partners: rights, liabilities, and special transfer procedures
  • Statutory protections for family members
  • Starting probate, including preparing petition, order, bond requirements, and letters
  • Decedent estate administration, including inventory and appraisal, creditors' claims, sales, investments, and accounts
  • Distributions and transfers
  • Problems in estate administration, including will contests, suing to establish entitlement to estate distribution, and challenging representatives in court
  • Compensation
  • Nonresident heirs and beneficiaries
  • Estate tax and income tax concepts and procedures
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Comprehensive, in-depth coverage (including forms) of probate practice and procedures, summary probate proceedings, and transfers outside of probate.

  • Procedures for transferring assets when formal probate is not required
  • Spouses and registered domestic partners: rights, liabilities, and special transfer procedures
  • Statutory protections for family members
  • Starting probate, including preparing petition, order, bond requirements, and letters
  • Decedent estate administration, including inventory and appraisal, creditors' claims, sales, investments, and accounts
  • Distributions and transfers
  • Problems in estate administration, including will contests, suing to establish entitlement to estate distribution, and challenging representatives in court
  • Compensation
  • Nonresident heirs and beneficiaries
  • Estate tax and income tax concepts and procedures

1

Initial Considerations

Mary-Felicia Apanius

  • I. THE GRIEF PROCESS
    • A. Introduction 1.1
    • B. Issues for Attorneys
      • 1. Awareness of Client's Grief 1.2
      • 2. Effect of Grief on Client's Responses 1.3
      • 3. Objects or Dates That May Reactivate Grief 1.4
  • II. POSTMORTEM ARRANGEMENTS
    • A. Disposition of Remains
      • 1. Introduction 1.5
      • 2. Coroner's Inquest 1.6
      • 3. Autopsy and Disposition of Body 1.7
      • 4. Anatomical Gifts Under California's Revised Uniform Anatomical Gift Act 1.8
        • a. Making or Refusing to Make Gift Before Donor's Death 1.9
        • b. Amending or Revoking Gift Authorized During Life 1.10
        • c. Third Party's Postdeath Actions
          • (1) Third Party's Authority When No Instructions by Donor 1.11
          • (2) Limitations on Third Party's Authority to Authorize Gift 1.12
          • (3) Revocation of Postdeath Gift 1.13
        • d. Responsibility for Locating Documentation of Gift or Refusal to Make Gift 1.14
        • e. Actions by Doctor, Hospital, and Organ Procurement Agency 1.15
        • f. Issues Regarding the Misuse of Organs or Parts 1.15A
      • 5. Funeral Arrangements
        • a. Decedent's Instructions 1.16
        • b. Funeral Contracts 1.17
        • c. Settling Disputes 1.18
        • d. Duties of Person With Right of Control 1.19
        • e. Fraternal or Military Funerals 1.20
    • B. Certified Copies of Death Certificate 1.21
    • C. U.S. Citizen's Death Abroad 1.22
  • III. LEGAL FRAMEWORK FOR DECEDENTS' ESTATES
    • A. Law Governing Court and Informal Actions 1.23
    • B. Procedural Aspects of Probate Court Proceedings
      • 1. Forms
        • a. Judicial Council Forms 1.24
        • b. Printed Court Forms 1.25
        • c. Electronic Filing 1.25A
        • d. Attorney-Drafted Forms; Format Rules 1.26
        • e. Verification of Petitions
          • (1) Requirement; Significance 1.27
          • (2) Form: Verification by Declaration 1.28
        • f. Exhibits and Attachments 1.29
        • g. Proposed Orders 1.29A
      • 2. Hearing Practices 1.30
  • IV. FIRST STEPS 1.31
    • A. Determining Whether Decedent Died Testate or Intestate 1.32
      • 1. Locating Will 1.33
        • a. Decedent's Safe Deposit Box 1.34
        • b. Joint Safe Deposit Box 1.35
        • c. International Will Registry 1.36
      • 2. If Decedent Died With Will 1.37
    • B. When Reporting Fact of Death Is Required 1.38
    • C. Determining Appropriate Procedures and Proceedings 1.39
      • 1. Characterization of Property 1.40
      • 2. How Title Is Held 1.41
      • 3. Value of Assets 1.42
  • V. OFFICE PROCEDURES AND CASE MANAGEMENT
    • A. In General 1.43
    • B. Probate Proceedings 1.44
      • 1. Calendars 1.45
      • 2. Maintenance of Records 1.46
    • C. Checklist: Estate Record 1.47
    • D. Closing Files; Disposing of Inactive Files 1.48

2

Nonprobate Transfers

Nancy Baldwin Reimann

Amy L. McEvoy

  • I. INTRODUCTION 2.1
  • II. REAL PROPERTY
    • A. Joint Tenancy 2.2
      • 1. Effect of Death on Title 2.3
      • 2. Confirmation of Joint Tenancy Ownership 2.4
        • a. Was There Prior Severance? 2.5
          • (1) Severance by Less Than All Joint Tenants Must Be Recorded 2.6
          • (2) Exceptions to Recording Requirement 2.7
          • (3) Automatic Severance if Joint Tenant Is Killed by Other Joint Tenant 2.8
          • (4) Severance Involving Former Spouses or Registered Domestic Partners 2.9
          • (5) Judgment Lien and Levy Do Not Sever, But Execution Sale Does 2.10
          • (6) Bankruptcy 2.11
        • b. What to Do if There Are Doubts About Title 2.12
      • 3. Transfer of Record Title to Surviving Joint Tenant 2.13
        • a. Affidavit Procedure 2.14
          • (1) Requirements 2.15
          • (2) Form: Affidavit—Death of Joint Tenant 2.16
        • b. Court Proceeding to Establish Fact of Death Under Prob C §200 2.17
          • (1) Who May Petition 2.18
          • (2) Where and When to File 2.19
          • (3) Contents of Petition 2.20
          • (4) Form: Petition to Establish Fact of Death of Joint Tenant 2.21
          • (5) Notice, Hearing, and Order 2.22
          • (6) Form: Order Establishing Fact of Death 2.23
        • c. Proceedings to Establish Record of Death Under Health & S C §103450 2.24
          • (1) Petition 2.25
          • (2) Hearing 2.26
          • (3) Order 2.27
        • d. Effect of Recording Document Establishing Fact of Death 2.28
        • e. Attorney Fees 2.29
      • 4. Mortgage Insurance 2.30
      • 5. Rights of Decedent's Creditors
        • a. Lien Without Execution Generally Insufficient 2.31
        • b. If Creation of Joint Tenancy in Fraud of Creditors 2.32
    • B. Life Estate 2.33
      • 1. Clearing Title 2.34
      • 2. Rights of Deceased Life Tenant's Creditors 2.35
    • C. Revocable Transfer on Death Deed 2.35A
      • 1. Execution of a Transfer on Death Deed 2.35B
      • 2. Form: Simple Revocable Transfer on Death (TOD) Deed 2.35C
      • 3. Transfer of Record Title to Beneficiary on Death of Transferor 2.35D
      • 4. Rights of Third Parties And Decedent's Creditors 2.35E
      • 5. Contesting the Validity of a Transfer of Property by Revocable TOD Deed 2.35F
      • 6. Revocation of Revocable Transfer on Death (TOD) Deed 2.35G
      • 7. Form: Revocation of Revocable Transfer on Death (TOD) Deed 2.35H
    • D. Real Property Security 2.36
  • III. PERSONAL PROPERTY
    • A. General Considerations
      • 1. Joint Tenancy Assets 2.37
      • 2. Probate Code §5000 Assets
        • a. Types of Instruments and Accounts Covered 2.38
        • b. Nonprobate Transfer Must Satisfy Terms of Instrument 2.39
        • c. Protection of Holder of Transferred Property 2.40
        • d. Nonprobate Transfers of Community Property 2.41
        • e. Procedure 2.42
        • f. Rights of Decedent's Creditors 2.43
        • g. Personal Property Security 2.44
      • 3. Attorney Fees 2.45
    • B. Multiple-Party Accounts 2.46
      • 1. Joint Account 2.47
      • 2. Pay on Death (POD) Account 2.48
      • 3. Totten Trust Account 2.49
      • 4. Joint Account With Former Spouse or Former Registered Domestic Partner 2.50
      • 5. Special Treatment of Community Property Multiple-Party Account 2.51
      • 6. Transferring Multiple-Party Accounts 2.52
      • 7. Liability of Financial Institution 2.53
      • 8. Actions to Determine Title 2.54
    • C. Vehicles and Vessels Registered With DMV 2.55
      • 1. Vehicle or Vessel in Decedent's Name Alone 2.56
      • 2. Joint Tenancy
        • a. Form of Registration 2.57
        • b. Transfer at Death 2.58
      • 3. "Transfer on Death" Registration 2.59
    • D. Life Insurance
      • 1. Determine Benefits Payable 2.60
      • 2. Determine Owner and Beneficiary of Each Policy 2.61
        • a. Review Changes of Beneficiary 2.62
        • b. If Decedent Is Survived by Spouse or Former Spouse or Registered Domestic Partner or Former Registered Domestic Partner 2.63
      • 3. Procedure for Collecting Benefits 2.64
      • 4. Rights of Decedent's Creditors 2.65
    • E. Decedent's Retirement and Other Employee Benefit Plans
      • 1. Identify Decedent's Retirement and Other Benefit Plans 2.66
      • 2. Determine Beneficiaries of Each Plan 2.67
      • 3. Procedure to Obtain Benefits 2.68
      • 4. Rights of Decedent's Creditors
        • a. Public Retirement Benefits Under California Law 2.69
        • b. Private Retirement Benefits Under California Law 2.70
        • c. Qualified Plan Prohibition Against Assignment and Alienation 2.71
    • F. Securities Registered Under Uniform TOD Security Registration Act (Prob C §§5500—5512) 2.72
      • 1. Definitions 2.73
      • 2. Registration 2.74
      • 3. Transfer on Death 2.75
    • G. Annuities 2.76
    • H. United States Bills, Notes, and Savings Bonds
      • 1. Treasury Bills and Notes 2.77
      • 2. Bonds 2.78
        • a. Permissible Forms of Registration 2.79
        • b. Reissuance or Redemption 2.80
        • c. Redemption Value; Reissuance Date 2.81
        • d. Rights of Decedent's Creditors 2.82
    • I. Partnership Interests 2.83
  • IV. TRUST PROPERTY 2.84
    • A. Coordination of Trust Instrument and Will 2.85
    • B. Creditors' Claims
      • 1. Rights of Decedent Settlor's Creditors 2.86
      • 2. Optional Use of Trust Claims Procedure 2.87
      • 3. Rights of Trust Beneficiaries' Creditors 2.88
  • V. SURVIVORS' BENEFITS UNDER PUBLIC BENEFITS PROGRAMS
    • A. Workers' Compensation Benefits 2.89
    • B. Social Security Benefits 2.90
      • 1. Creditors' Rights 2.91
      • 2. One-Time Lump-Sum Death Payment 2.92
      • 3. Monthly Social Security Survivors' Benefits 2.93
      • 4. Procedure for Collecting Benefits 2.94
  • VI. PROPERTY HELD BY DECEDENT AS FIDUCIARY
    • A. Preliminary Considerations 2.95
    • B. Decedent Trustee
      • 1. Appointment of Successor Trustee 2.96
      • 2. Accounting on Death of Trustee 2.97
    • C. Decedent Custodian
      • 1. Appointment of Successor Custodian 2.98
      • 2. Accounting on Death of Custodian 2.99
    • D. Decedent Conservator or Guardian 2.100

3

Transfer of Personal and Real Property in Small Estates

Patina A. Madison

  • I. SMALL ESTATE SUMMARY PROCEDURES
    • A. Purpose 3.1
    • B. General Description of Available Procedures 3.2
    • C. Common Elements
      • 1. Definition of Decedent's Estate 3.3
      • 2. Valuation Limits 3.4
      • 3. Assets Excluded From Valuation Limits 3.5
      • 4. Who May Use Procedures 3.6
      • 5. Attorney Fees 3.7
    • D. Deciding Whether to Use Summary Procedure 3.8
      • 1. Possible Disagreement Among Decedent's Successors in Interest 3.9
      • 2. Decedent's Liabilities 3.10
  • II. COLLECTING SMALL ESTATE PERSONAL PROPERTY UNDER PROB C §§13100—13116 3.11
    • A. Determining Value of Estate 3.12
    • B. Use of Procedure by Surviving Spouse 3.13
    • C. Other Uses of Affidavit Procedure
      • 1. Claimed Property in Probate of Another Decedent 3.14
      • 2. Money or Property Subject to Pending Action or Proceeding 3.15
    • D. When Successor May Collect 3.16
    • E. Coordination With Probate Administration 3.17
    • F. What Must Be Presented
      • 1. Affidavit or Declaration 3.18
      • 2. Form: Declaration Under Probate Code §§13100—13116 3.19
      • 3. Supporting Documents and Proof of Identity 3.20
        • a. Evidence of Decedent's Ownership of Property; Bond or Indemnity Agreement 3.21
        • b. Proof of Identity of Claimants to Estate 3.22
          • (1) Requirements if Affidavit or Declaration Not Notarized and Holder Does Not Personally Know Claimant 3.23
          • (2) Special Requirements for Certain Holders 3.24
    • G. Completing Transfer 3.25
      • 1. Transfers of Debts Secured by Real Property: Recording Requirement 3.26
      • 2. Noncompliance by Holder 3.27
      • 3. Holder's Response to Conflicting Affidavits 3.28
    • H. Liability Issues
      • 1. Liability of Holder of Property for Transferring Property 3.29
      • 2. Liability of Person to Whom Payment, Delivery, or Transfer Is Made 3.30
        • a. Liability for Decedent's Unsecured Debts 3.31
        • b. Liability to Person With Superior Right 3.32
        • c. Restitution if There Are Probate Proceedings
          • (1) Extent of Liability of Successor in Interest 3.33
          • (2) Who May Bring Action 3.34
  • III. REAL PROPERTY TRANSFERS IN SMALL ESTATES 3.35
    • A. Comparison of the Two Procedures 3.36
    • B. Transferring Real Property by Court Order Under Prob C §§13150—13158 3.37
      • 1. Preparing Petition 3.38
        • a. Interested Persons 3.39
        • b. Required Attachments 3.40
      • 2. Form: Petition to Determine Succession to Real Property (Estates of $150,000 or Less) (Judicial Council Form DE-310) 3.41
      • 3. Where to File 3.42
      • 4. Setting Hearing Date; Notice, Hearing, and Order 3.43
      • 5. Form: Order Determining Succession to Real Property (Estates of $150,000 or Less) (Judicial Council Form DE-315) 3.44
      • 6. Recording Order and Submitting PCOR to Assessor 3.45
      • 7. Attorney Fees 3.46
      • 8. Liability for Decedent's Unsecured Debts 3.47
    • C. Transferring Real Property by Affidavit Under Prob C §§13200—13210 3.48
      • 1. Preparing Affidavit 3.49
      • 2. Form: Affidavit re Real Property of Small Value ($50,000 or Less) (Judicial Council Form DE-305) 3.50
      • 3. Required Attachments 3.51
      • 4. Filing Affidavit, Obtaining Certified Copy, and Giving Notice 3.52
      • 5. Recording Affidavit and Submitting PCOR to Assessor 3.53
      • 6. Liability Issues
        • a. Liability for Decedent's Unsecured Debts and to Holder of Superior Right 3.54
        • b. Restitution if There Are Probate Proceedings 3.55
    • D. Property Tax Consequences of Transfers of Real Property 3.56

4

Spouses and Registered Domestic Partners: Rights, Liabilities, and Special Transfer Procedures

Michael C. Gerson

  • I. INTRODUCTION 4.1
  • II. INITIAL CONSIDERATIONS
    • A. Definitions
      • 1. Surviving Spouse and Registered Domestic Partner 4.2
      • 2. Community Property 4.3
      • 3. Quasi-Community Property 4.4
      • 4. Community Property With Right of Survivorship 4.5
      • 5. Separate Property 4.6
      • 6. Joint Tenancy Property 4.7
    • B. Characterization of Property
      • 1. How It Is Determined 4.8
      • 2. Transmutation 4.9
        • a. Pre-1985 4.10
        • b. Post-1984 4.11
          • (1) Writing Required 4.12
          • (2) Extrinsic Evidence Not Admissible 4.13
    • C. Ownership Interests at Death 4.14
      • 1. Division of Community Property Assets 4.15
        • a. Division by Agreement 4.16
        • b. Nonprorata Division of Aggregate Value 4.17
      • 2. Community Property Held in Conservatorship Estate 4.18
    • D. General Rules Governing Liability for Debts
      • 1. Under Family Code
        • a. Liability of Community Property 4.19
        • b. Liability of Spouses or Domestic Partners and Property to Creditors 4.20
        • c. Limit of Liability of Community Property 4.21
      • 2. Under Probate Code
        • a. Allocation of Debts Between Separate and Community Property on Death or Dissolution 4.22
        • b. Example of Allocation 4.23
        • c. Chart: Allocation of Debts Under Prob C §11444 4.24
        • d. Apportionment by Agreement 4.25
  • III. NONPROBATE TRANSFERS UNDER PROB C §§5000—5032 AND 5040—5048
    • A. Nonprobate Transfers of Community Property When Surviving Spouse or Surviving Domestic Partner Not Recipient
      • 1. Nature of Problem 4.26
      • 2. Nonprobate Transfers of Community Property
        • a. With Consent 4.27
        • b. Consent Is Revocable 4.28
        • c. If No Consent to Transfer 4.29
      • 3. Right to Recover Gifts of Community Property 4.30
      • 4. Right to Recover Gifts of Quasi-Community Property 4.31
      • 5. Right to Recover Benefits Payable at Death 4.32
      • 6. Qualified Pension Plans and Other Federal Benefits: Preemption 4.33
      • 7. Joint Tenancy 4.34
    • B. Nonprobate Transfers to Former Spouse or Former Registered Domestic Partner
      • 1. Failure of Transfer by Will 4.35
      • 2. Failure of Nonprobate Transfer to Former Spouse or Former Registered Domestic Partner 4.36
        • a. When Nonprobate Transfers Fail 4.37
        • b. What Is "Nonprobate Transfer" 4.38
      • 3. Joint Tenancy and Community Property With Right of Survivorship 4.39
  • IV. PASSAGE OF PROPERTY TO SURVIVING SPOUSE OR REGISTERED DOMESTIC PARTNER WITHOUT ADMINISTRATION (PROB C §§13500—13660) 4.40
    • A. General Provisions
      • 1. When Administration May Be Required 4.41
      • 2. When Administration May Be Elected 4.42
        • a. Practical Considerations 4.43
        • b. Survivor's Election to Administer Property
          • (1) Election to Administer Decedent's Property 4.44
          • (2) Election to Administer Survivor's Community and Quasi-Community Interest in Property 4.45
          • (3) Making Prob C §13502 Election 4.46
          • (4) Form: Election by Surviving Spouse or Registered Domestic Partner to Administer Survivor's Community Property in Deceased Spouse's or Partner's Estate 4.47
        • c. Administration of Pecuniary Devise or Fractional Interest 4.48
      • 3. Election and Agreement to Transfer Property to Trustee Outside of Administration 4.49
        • a. Making Election 4.50
        • b. Relation to Election Under Prob C §13502 4.51
        • c. Form: Election and Agreement by Surviving Spouse or Registered Domestic Partner to Transfer Community Property to Trustee 4.52
    • B. Right to Dispose of Community and Quasi-Community Property
      • 1. Real Property 4.53
      • 2. Securities Registered Solely in Name of Surviving Spouse or Registered Domestic Partner 4.54
    • C. Collection by Affidavit or Declaration of Decedent's Earnings 4.55
      • 1. Presenting Affidavit or Declaration 4.56
      • 2. Consequences of Using Procedure 4.57
      • 3. Form: Declaration to Collect Compensation Owed to Deceased Spouse or Registered Domestic Partner (Prob C §§13600—13606) 4.58
    • D. Spousal or Domestic Partner Property Petition
      • 1. When Prob C §13650 Petition Might Be Recommended 4.59
      • 2. Filing Petition 4.60
      • 3. Contents of Petition 4.61
      • 4. Form: Spousal or Domestic Partner Property Petition (Judicial Council Form DE-221) 4.62
      • 5. Notice 4.63
      • 6. Protection of Decedent's Business Creditors; When Inventory and Appraisal Required 4.64
      • 7. Order 4.65
      • 8. Form: Spousal or Domestic Partner Property Order (Judicial Council Form DE-226) 4.66
      • 9. Attorney Fees 4.67
    • E. Survivor's Liability 4.68
      • 1. Liability for Decedent's Debts (Prob C §§13550—13554) 4.69
        • a. Exceptions to Liability
          • (1) Funeral Expenses and Expenses of Last Illness 4.70
          • (2) If Election Is Made to Probate Both Halves of Community and Quasi-Community Property 4.71
        • b. Enforcement of Liability 4.72
        • c. Allocation of Debt 4.73
      • 2. Liability for Decedent's Property (Prob C §§13561—13563)
        • a. Liability to Person With Superior Right Under Decedent's Will 4.74
        • b. Limits of Survivor's Aggregate Personal Liability 4.75
        • c. Liability to Estate if Probate Proceedings Are Commenced 4.76
          • (1) If Survivor Did Not Make Significant Improvement 4.77
          • (2) If Survivor Made Significant Improvement 4.78
  • V. SETTING ASIDE ESTATES NOT EXCEEDING $20,000 (PROB C §§6600—6615)
    • A. Statutory Authority for Set-Aside 4.79
      • 1. Persons to Whom Estate May Be Set Aside 4.80
      • 2. Exclusions in Determining Net Value of Decedent's Estate 4.81
      • 3. When to Use Prob C §§6600—6615 4.82
    • B. Procedure
      • 1. Who May Petition; Venue 4.83
      • 2. When Petition May Be Filed 4.84
        • a. Contents of Petition 4.85
        • b. Form: Petition to Set Aside and Assign Estate 4.86
      • 3. Inventory and Appraisal 4.87
      • 4. Notice and Hearing 4.88
      • 5. Factors Court Must Consider in Making Order 4.89
      • 6. Assignment of Estate as Part of Order 4.90
      • 7. Form: Order Setting Aside Estate and Assigning Estate 4.91
      • 8. Effect of Order 4.92
      • 9. Liability of Recipients 4.93
      • 10. Attorney Fees 4.94

5

Jurisdiction and Venue

Adam Streltzer

  • I. JURISDICTION
    • A. Aspects of Probate Court Jurisdiction 5.1
      • 1. Jurisdictional Facts 5.2
      • 2. Subject Matter Jurisdiction 5.3
      • 3. Constitutional Due Process Requirements; Relation to In Rem Nature of Probate Proceedings 5.4
    • B. Probate Court as Court of General Jurisdiction 5.5
      • 1. Continuing Jurisdiction 5.6
      • 2. Incidental Powers 5.7
      • 3. Contempt Powers 5.7A
    • C. Exclusive or Concurrent Probate Court Jurisdiction 5.8
    • D. Relation to Federal Jurisdiction
      • 1. The "Probate Exception" 5.9
      • 2. Application as to Trusts 5.9A
    • E. Conclusiveness of Probate Court Order Finding Jurisdiction 5.10
      • 1. Nonfundamental Jurisdiction: Not Subject to Collateral Attack
        • a. Nonfundamental Jurisdictional Facts 5.11
        • b. Actions in Excess of Jurisdiction or on Improper Notice by Court With Fundamental Jurisdiction 5.12
      • 2. Lack of Fundamental Jurisdiction: Subject to Collateral Attack
        • a. Extrinsic Fraud or Erroneous Determination of Decedent's Death 5.13
        • b. Lack of Subject Matter Jurisdiction; Failure to Comply With Constitutional Due Process Requirements 5.14
      • 3. Unusual Circumstances May Allow Collateral Attack 5.15
  • II. VENUE 5.16
    • A. Branch Courts 5.17
    • B. Domiciliary and Nondomiciliary Decedents 5.18
    • C. Conflicts Between California Courts 5.19
    • D. Transfer and Disqualification 5.20
    • E. Finality of Court Adjudication of Venue 5.21

6

Notice

Linda Eshoe

Justin Gold

Eric R. Yamamoto

  • I. INTRODUCTION
    • A. Purpose of Notice Requirements 6.1
    • B. Constitutional and Jurisdictional Notice Requirements 6.2
    • C. Notice Requirements in Local Rules 6.3
    • D. Other Basic Concepts Regarding Notice 6.4
    • E. Summary of Methods of Notice 6.5
  • II. NOTICE REQUIREMENTS
    • A. Methods of Notice
      • 1. Basic Notice Provision: Prob C §1220 6.6
        • a. Mailing
          • (1) To Whom Notice Must Be Mailed 6.7
          • (2) Time for Giving Notice 6.8
          • (3) Manner of Mailing 6.9
          • (4) Unknown Address of Person Entitled to Notice 6.10
          • (5) Form: Notice of Hearing—Decedent's Estate or Trust (Probate—Decedents' Estates) (Judicial Council Form DE-120) 6.11
          • (6) Proof of Mailing 6.12
        • b. Personal Delivery
          • (1) Requirements 6.13
          • (2) Form: Proof of Personal Service of Notice of Hearing—Decedent's Estate or Trust (Judicial Council Form DE-120(P)) 6.14
      • 2. Fax Transmission 6.14A
      • 3. Electronic Service 6.14B
      • 4. Publication
        • a. Requirements 6.15
        • b. Chart: Notice by Publication 6.16
        • c. Form: Memorandum to Newspaper for Publication 6.17
      • 5. Posting 6.18
      • 6. Personal Service
        • a. Proceedings in Which Personal Service Required Under Probate Code 6.19
          • (1) When Citation Required or Authorized 6.20
          • (2) When Personal Delivery or Mail and Acknowledgment of Receipt Required or Authorized 6.21
        • b. Timing of Notice 6.22
        • c. Manner of Personal Service 6.23
        • d. Proof of Personal Service 6.24
          • (1) Form: Summons (Probate) (Judicial Council Form DE-125) 6.25
          • (2) Form: Citation—Probate (Judicial Council Form DE-122/GC-322) 6.26
          • (3) Form: Notice and Acknowledgment of Receipt—Civil (Judicial Council Form POS-015) 6.27
        • e. Personal Service Outside California 6.28
        • f. When Personal Service Is Deemed Complete 6.29
      • 7. Other Notice Considerations
        • a. Notice to the California Attorney General 6.29A
        • b. Foreign Officials 6.29B
    • B. Request for Special Notice
      • 1. Who May Request Special Notice 6.30
      • 2. Matters for Which Special Notice May Be Requested 6.31
      • 3. Preparation, Filing, and Service of Judicial Council Form 6.32
      • 4. Form: Request for Special Notice (Judicial Council Form DE-154, GC-035) 6.33
      • 5. Effect of Request 6.34
      • 6. Ex Parte Applications 6.35
      • 7. Waiver of Special Notice; Modification or Withdrawal of Request 6.36
      • 8. Form: Waiver of Special Notice 6.37
      • 9. Form: Withdrawal of Request for Special Notice 6.38
      • 10. Failure to Give Special Notice 6.39
    • C. Requirements for Notice of Amended and Supplemental Pleadings 6.40
    • D. Court's Latitude in Notice Requirements
      • 1. Authority to Shorten or Lengthen Time or to Expand or Modify Number of Required Recipients 6.41
        • a. Form: Application for Order Shortening Time 6.42
        • b. Form: Order Prescribing Notice (Probate) (Judicial Council Form DE-200/GC-022) 6.43
        • c. Form: Order Shortening Time 6.44
      • 2. Authority to Dispense With Notice 6.45
    • E. Waiver of Notice
      • 1. When and How to Obtain 6.46
      • 2. Form: Waiver of Notice 6.47
  • III. CHART: STATUTORY NOTICES 6.48

7

Petition for Probate, Letters, and Qualification

David A. Levin

Marc Wahrhaftig

  • I. FUNCTION OF PROBATE ADMINISTRATION 7.1
  • II. SOURCES OF AUTHORITY AND USE OF JUDICIAL COUNCIL FORMS 7.2
  • III. PRELIMINARY CONSIDERATIONS
    • A. Importance of Becoming Familiar With Local Hearing Practices 7.3
    • B. Locating, Copying, and Filing Will
      • 1. Locating and Filing Will 7.4
      • 2. Copies 7.5
    • C. Probating Missing Person's Estate 7.6
    • D. U.S. Citizen's Death Abroad 7.7
    • E. Determining Petitioner and Proposed Personal Representative 7.8
      • 1. Eligibility to Serve as Personal Representative 7.9
      • 2. Testate Decedent
        • a. Executor: Named or Designated 7.10
          • (1) Persons Not Entitled to Serve as Executor 7.11
          • (2) Proposed Executor Unable or Unwilling to Serve 7.12
        • b. Administrator With Will Annexed 7.13
      • 3. Intestate Decedent: Administrator
        • a. Statutory Requirements 7.14
        • b. Priority of Persons Entitled to Letters of Administration 7.15
        • c. Limitation to Order of Priority
          • (1) Surviving Spouse or Registered Domestic Partner, or Relatives 7.16
          • (2) Nominee of Person Entitled to Appointment 7.17
          • (3) Minor, Conservatee, Conservator, or Guardian 7.18
      • 4. Nonresident Representative 7.19
    • F. Determining Domicile or Location of Estate of Decedent
      • 1. Statutory Requirements 7.20
      • 2. California Domiciliary Decedent 7.21
      • 3. Nondomiciliary Decedent 7.22
    • G. Ascertaining Heirs and Beneficiaries
      • 1. Identifying Heirs and Beneficiaries 7.23
      • 2. Locating Heirs and Beneficiaries 7.24
    • H. Determining Whether Surviving Spouse or Registered Domestic Partner Has Waived Rights 7.25
    • I. Deciding Whether to Request Authority to Act Under Independent Administration of Estates Act 7.26
  • IV. SPECIAL ADMINISTRATOR
    • A. Purpose and Grounds for Appointment of Special Administrator 7.27
      • 1. Form: Grounds for Appointment 7.28
      • 2. Who May Be Appointed; When Appointment May Be Made 7.29
      • 3. Powers, Duties, and Obligations 7.30
        • a. Limited Powers 7.31
        • b. General Powers 7.32
    • B. Procedure
      • 1. Petition for Letters of Special Administration 7.33
      • 2. Bond 7.34
      • 3. Filing Fee 7.35
      • 4. Notice 7.36
      • 5. Form: Notice 7.37
      • 6. Ascertaining Local Notice and Hearing Practices 7.38
      • 7. Order 7.39
      • 8. Letters 7.40
      • 9. Subsequent Grant of General Powers
        • a. Requirements 7.41
        • b. Form: Petition for General Powers to Special Administrator 7.42
        • c. Form: Order Granting General Powers to Special Administrator 7.43
    • C. Duration and Accounting 7.44
    • D. Compensation 7.45
  • V. PETITIONING FOR PROBATE
    • A. Procedural Checklist: Initiating Probate Proceeding 7.46
    • B. Petition and Attachments 7.47
      • 1. Checklist: Most Common Errors in Petition for Probate 7.48
      • 2. Form: Petition for Probate (Probate—Decedents Estates) (Judicial Council Form DE-111) 7.49
        • a. Heading and Caption 7.50
        • b. Publication (Item 1) 7.51
        • c. Petitioner (Items 2a, 2b, 3g, and 3h) 7.52
        • d. Form: Conditional Declination to Serve 7.53
        • e. Authority to Administer Under Independent Administration of Estates Act (Caption, Items 2c and 4) 7.54
        • f. Bond (Items 2d and 3e) 7.55
        • g. Jurisdictional Facts (Items 3a, 3b, and 3c) 7.56
        • h. Character, Estimated Value, and Income of Property (Item 3d) 7.57
        • i. Proof of Intestacy, Proving Will or Lost Will (Item 3f) 7.58
          • (1) When Will Is Self-Proving or Not Self-Proving 7.59
          • (2) Form: Proof of Subscribing Witness (Judicial Council Form DE-131) 7.60
          • (3) Proof of Holographic Will 7.61
          • (4) Form: Proof of Holographic Instrument (Judicial Council Form DE-135) 7.62
          • (5) Proving Foreign Language Will 7.63
          • (6) Form: Certification of Translation of Foreign Language Will (Attachment 3f(2)—3) 7.64
          • (7) Proving Will of Nondomiciliary Decedent 7.65
          • (8) Proving Lost or Destroyed Will 7.66
        • j. Nomination of Personal Representative (Item 3g) 7.67
        • k. Names, Ages, and Residences of Heirs and Devisees (Items 5—8) 7.68
          • (1) If Status of Person as Heir or Beneficiary Is in Doubt 7.69
          • (2) If No Spouse or Issue Survived Decedent (Item 7) 7.70
          • (3) Predeceased and Postdeceased Beneficiaries or Heirs (Item 8) 7.71
          • (4) Trust and Class Members as Beneficiaries or Heirs; All Persons Listed (Item 8) 7.72
        • l. Signature and Verification 7.73
    • C. Duties and Liabilities 7.74
      • 1. Form: Duties and Liabilities of Personal Representative and Acknowledgment of Receipt (Judicial Council Form DE-147) 7.75
      • 2. Form: Confidential Supplement to Duties and Liabilities of Personal Representative (Judicial Council Form DE-147S) 7.76
    • D. Filing Fee 7.77
    • E. Notice
      • 1. Notice by Mail or by Personal Delivery 7.78
        • a. Heirs and Devisees 7.79
        • b. Notice When Address Unknown 7.80
        • c. Notice if Beneficiary Is Deceased 7.81
        • d. Form: Notice of Petition to Administer Estate (Judicial Council Form DE-121) 7.82
        • e. Proof of Service 7.83
        • f. Copies of Petition and Will 7.84
        • g. Attorney Letter to Accompany Notice 7.85
        • h. Form: Sample Information Letter to Beneficiary 7.86
      • 2. Publication of Notice of Petition to Administer Estate 7.87
        • a. Definitions 7.88
        • b. Publication as Jurisdictional Prerequisite 7.89
        • c. Publication as Alert to Creditors 7.90
    • F. Objections to Appointment of Personal Representative 7.91
    • G. Hearing
      • 1. Setting Hearing Date 7.92
      • 2. Hearing Procedure 7.93
    • H. Order
      • 1. Preparing Judicial Council Form 7.94
      • 2. Form: Order for Probate (Judicial Council Form DE-140) 7.95
    • I. Letters
      • 1. Preparing Judicial Council Form 7.96
      • 2. Form: Letters (Judicial Council Form DE-150) 7.97
  • VI. AMENDED PLEADINGS, AMENDMENTS, AND SUPPLEMENTS 7.98
    • A. Supplement Title of Proceedings 7.99
    • B. Form: Petition for Order to Supplement Title of Proceedings 7.100
    • C. Form: Order Supplementing Title of Proceedings 7.101
  • VII. SUCCESSOR REPRESENTATIVE PROCEEDINGS
    • A. When Necessary; Appointment 7.102
    • B. Form: Attachment 3g(1)(d) to Petition for Probate on Death or Disqualification of Executor 7.103
    • C. Issuance of Amended Letters to Co-Representatives 7.104
  • VIII. TABLE OF CONSANGUINITY; CHART OF RELATIONSHIPS 7.105

8

Determination of Order of Death and Proceeding to Determine Survival

Genevieve S. Orta

Melinda MacDonald Osterloh

  • I. IMPORTANCE OF DETERMINING ORDER OF DEATHS 8.1
    • A. Consequences of Characterization of Marital Property 8.2
    • B. Effect on Creditors' Claims 8.3
  • II. WHEN PROVISIONS OF PROB C §§220—234 DO NOT APPLY
    • A. If Clear and Convincing Evidence of Order of Death 8.4
      • 1. Nonmedical Witnesses 8.5
      • 2. Medical Testimony 8.6
      • 3. Use of Death Certificate 8.7
    • B. If Document Contains Specific Provisions Regarding Simultaneous Death or Requirements for Survival 8.8
    • C. If Other Statutes Apply That Contain Their Own Provisions When Insufficient Evidence of Survival 8.9
      • 1. Community and Quasi-Community Property 8.10
      • 2. Statutory Will; Intestate Succession 8.11
  • III. WHEN PROVISIONS OF PROB C §§220—234 APPLY
    • A. General Rules 8.12
    • B. Specific Situations
      • 1. Right to Succeed to Interest in Property Conditional on Survival 8.13
      • 2. Joint Tenancy Property 8.14
      • 3. Life or Accident Insurance 8.15
  • IV. PROCEEDING TO DETERMINE SURVIVAL
    • A. Situations When Proceeding May Be Used 8.16
    • B. Application of Antilapse Statute 8.17
    • C. Alternate Proceedings 8.18
    • D. Procedure
      • 1. Petition
        • a. Who May Petition; Where to File 8.19
        • b. Contents of Petition 8.20
        • c. Form: Petition to Determine Survival 8.21
      • 2. Notice of Hearing 8.22
      • 3. Objections to Petition
        • a. In General 8.23
        • b. Form: Objections to Petition 8.24
      • 4. Hearing 8.25
      • 5. Order 8.25A
      • 6. Form: Order 8.26
    • E. Awarding Costs; Right to Appeal 8.27

9

Bonds

Eric R. Yamamoto

Stefanie S. Cutler

  • I. STATUTORY AUTHORITY 9.1
  • II. PURPOSE OF REPRESENTATIVE'S BOND 9.2
  • III. DETERMINING WHETHER BOND IS REQUIRED
    • A. When Bond Is or May Be Required 9.3
    • B. When Bond Might Not Be Needed or Required 9.4
    • C. Form: Waiver of Bond By Heir or Beneficiary (Probate—Decedents Estates) (Judicial Council Form DE-142/DE-111(A-3d)) 9.4A
  • IV. ALTERNATIVES TO BOND 9.5
    • A. Blocked Account
      • 1. Type of Account That May Be Used 9.6
      • 2. Factors to Consider 9.7
      • 3. Deposit Before Letters Issued 9.8
        • a. Written Receipt From Depository 9.9
        • b. Form: Receipt and Agreement by Depository 9.10
      • 4. Deposit on Court Order During Administration 9.11
        • a. Form: Application to Deposit Assets Under Prob C §9703 9.12
        • b. Use of Judicial Council Form for Receipt 9.13
        • c. Form: Receipt and Acknowledgment of Order for the Deposit of Money Into Blocked Account (Judicial Council Form MC-356) 9.14
    • B. Court Deposit 9.15
  • V. SETTING BOND
    • A. Who May Act as Surety 9.16
    • B. Application to Surety: Evaluation of Representative's Qualifications 9.17
    • C. Use of Joint Control Agreements to Limit Risk to Surety 9.18
    • D. Setting Amount of Bond
      • 1. Different Requirements for Admitted Surety Insurer and Personal Surety 9.19
      • 2. If Representative Granted Independent Powers 9.20
    • E. Procedure
      • 1. Petition and Order for Probate
        • a. Allegations About Bond 9.21
        • b. Form: Income in Blocked Account to Be Distributed to Personal Representative 9.22
      • 2. Before Hearing 9.23
      • 3. After Hearing 9.24
  • VI. INCREASING AMOUNT OF BOND
    • A. Court's Authority 9.25
    • B. Reasons for Increasing Bond 9.26
    • C. Application to Increase Amount of Bond
      • 1. Requirements for Application 9.27
      • 2. Form: Ex Parte Application to Increase Bond 9.27A
    • D. Filing Additional Bond or New Bond 9.28
  • VII. REDUCING AMOUNT OF BOND
    • A. Reasons to Reduce Bond After Qualification 9.29
    • B. Reduced Bond or New Bond 9.30
    • C. Procedure
      • 1. Petition and Order for Reduction in Bond 9.31
        • a. Form: Petition to Reduce Bond 9.32
        • b. Form: Declaration in Support of Petition to Reduce Bond 9.33
        • c. Form: Order Reducing Bond 9.34
      • 2. If Deposit to Blocked Account Is Basis for Reduction in Bond 9.35
  • VIII. LIABILITY ON BOND
    • A. Surety's Liability Based on Representative's Acts 9.36
    • B. Surety Guarantees Payment of Debt Representative Owes Decedent 9.37
    • C. Extent of Surety's Liability 9.38
      • 1. Effect of Representative's Resignation or Removal 9.39
      • 2. Surety's Liability on Successive Bonds 9.40
      • 3. Termination of Surety's Liability for Representative's Future Acts
        • a. At Surety's Request 9.41
        • b. At Representative's Request 9.42
        • c. Continued Liability of Released Surety 9.43
    • D. Bonds of Co-Representatives 9.44
    • E. Claims on Bond
      • 1. Who May Sue 9.45
      • 2. Determination of Representative's Liability as Prerequisite to Enforcement Against Surety 9.46
      • 3. Proceeding Against Surety
        • a. Motion or Complaint 9.47
        • b. Form: Notice of Motion and Motion for Judgment Enforcing Liability on Bond 9.47A
        • c. Statute of Limitations 9.48
    • F. Subrogation and Contribution 9.49
  • IX. FINAL DISCHARGE OF SURETY 9.50

10

Initial Duties of Personal Representative

Alex R. Borden

  • I. STARTING PROBATE ADMINISTRATION 10.1
    • A. Representative as Client 10.2
    • B. Representative as Fiduciary 10.3
    • C. Written Instructions to Representative
      • 1. Contents 10.4
      • 2. Form: Sample Letter of Instructions 10.5
    • D. Collection and Review of Documents Regarding Assets 10.6
    • E. Collection of Decedent's Mail 10.7
    • F. Bookkeeping and Accounting System 10.8
    • G. Estimate of Cash Needs 10.9
    • H. Notice to State Agencies 10.9A
  • II. ASSETS
    • A. Bank and Savings Accounts
      • 1. Decedent's Accounts 10.10
      • 2. Social Security Direct Deposits to Decedent's Savings or Checking Account 10.11
      • 3. Estate Accounts 10.12
    • B. Estate Safe Deposit Box 10.13
    • C. Securities
      • 1. Stocks in Brokerage or DRIP Accounts 10.14
      • 2. Stocks Held in Certificate Form in Decedent's Name 10.15
      • 3. Stocks Held in TOD Form or as Nominee 10.16
      • 4. Government Bonds 10.17
    • D. Insurance and Benefits 10.18
    • E. Real Estate
      • 1. California Real Property 10.19
        • a. Maintenance 10.20
        • b. Insurance 10.21
        • c. Rentals 10.22
        • d. Hazardous Waste Problems 10.23
      • 2. Out-of-State Real Property 10.24
    • F. Personal Property
      • 1. Possession and Care 10.25
      • 2. Appraisals 10.26
      • 3. Anticipatory Distribution 10.27
      • 4. Form: Receipt for Anticipatory Distribution and Indemnity Agreement 10.28
      • 5. Automobiles 10.29
      • 6. Perishable or Depreciating Assets 10.30
    • G. Decedent's Business 10.31
    • H. Options 10.32
    • I. Conservatorship Estate Assets 10.33
    • J. Debts Owed Decedent 10.34
    • K. Survival Actions 10.35
      • 1. Decedent's Personal Transactions 10.36
      • 2. Amounts Owed by Beneficiaries 10.37
      • 3. Amounts Owed by Representative 10.37A
    • L. Treatment of Nonprobate Assets 10.38
    • M. Digital Assets 10.38A
  • III. LIABILITIES
    • A. Credit Cards and Credit Profile 10.39
    • B. Taxes 10.40
      • 1. Income Tax Returns 10.41
      • 2. Gift Tax Returns 10.42
      • 3. Property Taxes 10.43
    • C. Insurance 10.44
    • D. Decedent's Debts 10.45
    • E. Loan Defaults 10.46
    • F. Income Tax Withholding and Social Security Contributions for Employees 10.47
  • IV. CHECKLIST: ISSUES FOR CONSIDERATION AT BEGINNING OF ESTATE ADMINISTRATION 10.48

11

Ancillary Administration

Bart J. Schenone

  • I. WHAT IS ANCILLARY ADMINISTRATION? 11.1
  • II. JURISDICTIONAL ISSUES
    • A. Jurisdiction Based on Domicile 11.2
      • 1. Determining Domicile Under California Law
        • a. Statutory References 11.3
        • b. Physical Presence and Subjective Intent 11.4
      • 2. Probate Order as Determination of Jurisdiction: Full Faith and Credit 11.5
    • B. Jurisdiction Based on Situs
      • 1. Real Property 11.6
      • 2. Personal Property 11.7
    • C. Jurisdiction Over Foreign Personal Representative 11.8
  • III. ANCILLARY ADMINISTRATION IN CALIFORNIA
    • A. Purposes 11.9
      • 1. Retaining Independent Jurisdiction Over Local Assets 11.10
      • 2. Protecting Local Creditors 11.11
    • B. When California Ancillary Administration Can Be Avoided 11.12
      • 1. Real Property 11.13
      • 2. Collecting Personal Property in California Under Prob C §12570 11.14
    • C. Need for Cooperation Between Ancillary State and Domiciliary State Representatives 11.15
    • D. Procedure 11.16
      • 1. Requirements 11.17
      • 2. Venue 11.18
      • 3. Petitioner 11.19
      • 4. Petition
        • a. Testate Nondomiciliary Decedent 11.20
          • (1) Authentication of Will Admitted in Foreign Country 11.21
          • (2) Attachment to Petition
            • (a) Contents of Attachment 11.22
            • (b) Form: Attachment to Petition for Probate 11.23
          • (3) Probate of Will That Does Not Qualify for Admission to Probate in California 11.24
        • b. Intestate Nondomiciliary Decedent 11.25
      • 5. Notice 11.26
      • 6. When Contest or Revocation Permitted; Order 11.27
        • a. Contents of Attachment to Order 11.28
        • b. Form: Attachment to Order for Probate 11.29
      • 7. Creditors' Rights 11.30
      • 8. Distribution to Domiciliary State Personal Representative 11.31
        • a. Form: Appointment of Representative 11.32
        • b. Form: Delivery of Assets; Request for Distribution 11.33
  • IV. ANCILLARY ADMINISTRATION IN FOREIGN JURISDICTION
    • A. Duty to Collect and Account for Foreign Assets 11.34
    • B. Administering California Domiciliary's Estate in Foreign Jurisdiction Proceeding 11.35
    • C. Avoiding Foreign Ancillary Administration
      • 1. Characterization of Property as Real or Personal Property 11.36
      • 2. Power to Sell Foreign Real Property if Authorized in Will 11.37
    • D. Creditors' Claims 11.38
  • V. TAXATION ISSUES
    • A. Federal Estate Tax 11.39
    • B. Federal Estate Taxation of Nonresident Alien Decedent's Estate 11.40
    • C. Income Tax 11.41
    • D. Who Should File Returns? 11.42

12

Nonresident Heirs and Beneficiaries

Marie E. Galanti

  • I. INTRODUCTION 12.1
  • II. FOREIGN LANGUAGE DOCUMENTS
    • A. International Wills
      • 1. Requirements for Content and Execution 12.2
      • 2. Requirement of Certificate 12.3
    • B. Translation and Authentication of Foreign Documents
      • 1. Foreign Language Will 12.4
      • 2. Foreign Language Exhibits 12.5
  • III. REPRESENTATIVE'S INITIAL RESPONSIBILITIES
    • A. Applicable Law in Determining Domicile of Decedent 12.6
    • B. Determining Domicile of Personal Representative 12.7
    • C. Translating English Language Documents 12.8
    • D. Identifying and Locating Heirs and Beneficiaries
      • 1. Claim of Inheritance by Nonresident Aliens 12.9
      • 2. Identifying Heirs and Beneficiaries
        • a. Proof Available in United States 12.10
        • b. Proof Available Outside United States 12.11
      • 3. Verification and Authentication of Claims From Abroad
        • a. Letters Rogatory and Depositions 12.12
        • b. Certificates of Heirship and Certificates of Custom 12.13
        • c. Heir-Finding Firms 12.14
          • (1) Finding a Reputable Firm 12.15
          • (2) Agreement for Payment 12.16
    • E. Locating and Inventorying Assets 12.17
      • 1. Personal Property 12.18
      • 2. Real Property
        • a. Definition of "Real Property" 12.19
        • b. Treatment of Real Property 12.20
    • F. Giving Notice
      • 1. Notice of Administration and Courtesy Letter to Heirs and Beneficiaries 12.21
      • 2. Notice to Consular Officers 12.22
  • IV. ROLE OF ATTORNEY
    • A. Representing Personal Representative
      • 1. Working With Foreign Professionals 12.23
      • 2. Determining Level of Involvement With Foreign Assets and Foreign Heirs and Beneficiaries 12.24
      • 3. Attorney for Personal Representative Does Not Represent Heirs or Beneficiaries 12.25
    • B. Representing Foreign Heirs or Beneficiaries 12.26
    • C. Identifying Foreign Professionals 12.27
  • V. DISTRIBUTION OF ESTATE TO NONRESIDENT ALIENS 12.28
    • A. Foreign Laws and California Rules for Distribution 12.29
    • B. California Estate Income Tax Clearance Certificate [Deleted] 12.30
    • C. Persons to Whom Distribution May Be Made; Receipts 12.31
    • D. Distribution to Heirs or Beneficiaries in Countries With Which United States Has No Diplomatic Relations 12.32
    • E. Claiming Property Deposited With State Treasurer 12.33
  • VI. TAXATION OF NONRESIDENT ALIEN HEIRS AND BENEFICIARIES
    • A. Status of Heirs and Beneficiaries 12.34
      • 1. United States Residents for Income Tax Purposes 12.35
      • 2. Nonresident Spouse Treated as Resident 12.36
      • 3. Abandonment of U.S. Citizenship or Resident Status 12.37
      • 4. Tax on Gifts or Bequests Received From Expatriates 12.38
      • 5. Effect of Tax Treaties 12.39
    • B. Income Tax Issues for Estates: Withholding Requirements for Distributions to Nonresident Heirs and Beneficiaries
      • 1. Cash and Other Personal Property
        • a. Non-U.S. Resident Alien Heirs and Beneficiaries 12.40
        • b. Distribution to Non-California Resident Heirs and Beneficiaries 12.41
      • 2. Real Property Distribution From Non-U.S. Resident 12.42
    • C. Income Tax Issues for Nonresident Heirs and Beneficiaries
      • 1. Federal Income Tax Issues for Nonresident Heirs and Beneficiaries 12.43
      • 2. California Income Tax Issues for Nonresident Heirs and Beneficiaries 12.44
    • D. Federal Estate Tax and Foreign Inheritance Tax
      • 1. United States Estate and Gift Tax 12.45
      • 2. Inheritance Tax Laws of Foreign Countries 12.46
      • 3. Double-Taxation Issues 12.47

13

Inventory and Appraisal

David J. Elefant

  • I. INTRODUCTION: FUNCTION OF INVENTORY 13.1
  • II. FIRST STEPS
    • A. Information Gathering by Attorney and Personal Representative
      • 1. At Initial Interview 13.2
      • 2. Others Who May Have Information About Assets 13.3
      • 3. Resources for Searching for Possible Assets 13.4
      • 4. Asset Information Available Only Online 13.5
      • 5. Discovery to Locate Property 13.6
    • B. Appointment of Probate Referee
      • 1. Appointment Procedures 13.7
      • 2. Personal Representative's Designation of Particular Probate Referee 13.8
      • 3. Personal Representative's Removal of First Designated Probate Referee 13.9
      • 4. Waiver of Probate Referee's Appraisal 13.10
      • 5. Practical Considerations of Seeking Waiver 13.11
      • 6. Form: Petition for Waiver of Appraisal by Probate Referee (Prob C §8903) 13.12
  • III. PREPARING INVENTORY AND APPRAISAL
    • A. Appraisal Responsibilities 13.13
      • 1. Probate Referee Guide 13.14
      • 2. Personal Representative (Attachment 1)
        • a. Assets Appraised by Personal Representative 13.15
        • b. Separate Letter to Assist Probate Referee 13.16
      • 3. Probate Referee (Attachment 2) 13.17
        • a. Assets Appraised by Probate Referee 13.18
        • b. Valuation of Assets 13.19
        • c. Time for Probate Referee's Appraisal; Status Report 13.20
        • d. Invoking Court Action 13.21
        • e. Compensation of Probate Referee 13.22
        • f. Appraisal of Nonprobate Assets 13.23
        • g. Form: Appraisal Report of California Probate Referee 13.24
      • 4. Independent Appraisal 13.25
    • B. Change in Ownership Statement; Property Tax Certificate
      • 1. Certification Under Probate Code §8800 13.26
      • 2. Form: Change in Ownership Statement Death of Real Property Owner (BOE-502-D) 13.26A
    • C. Characterization and Organization of Assets
      • 1. Interest of Decedent
        • a. Characterization as Separate or Community Property 13.27
        • b. Sample Form: Community Property Item 13.28
        • c. Fractional Interests and Fractional Discounts 13.29
          • (1) Factors Used in Valuing Fractional Discounts 13.30
          • (2) Sample Form: Fractional Interest and Fractional Discount in Property 13.31
        • d. Property of Doubtful Ownership 13.32
      • 2. Format 13.33
        • a. Grouping Parallel to Federal Estate Tax Return 13.34
        • b. Alternative Organization Suggestions 13.35
    • D. Listing Assets
      • 1. Attachment 1
        • a. Cash and Cash Equivalents (Form 706, Schedule C) 13.36
          • (1) Financial Institution Accounts 13.37
          • (2) Uncashed Checks; Refunds 13.38
        • b. Life Insurance (Form 706, Schedule D or F) 13.39
      • 2. Attachment 2
        • a. Real Property in California (Form 706, Schedule A)
          • (1) Methods of Valuation 13.40
          • (2) Information Supplied in Personal Representative's Letter 13.41
          • (3) Information Required on Inventory 13.42
          • (4) Property Subject to Encumbrances, Contract, or Deed of Trust 13.43
          • (5) Remainder Interest Subject to Life Tenancy 13.44
          • (6) Improved Real Property 13.45
          • (7) Leases 13.45A
          • (8) Water Company Stock Appurtenant to Land 13.45B
        • b. Mineral Interests and Royalties
          • (1) Types of Rights and Valuations 13.45C
          • (2) Mineral Interests 13.45D
          • (3) Mineral Leases 13.45E
          • (4) Royalty Interests 13.45F
        • c. Stocks and Bonds (Form 706, Schedule B)
          • (1) Methods of Valuation 13.46
          • (2) CUSIP Numbers 13.46A
          • (3) Stocks 13.47
          • (4) Bonds 13.48
        • d. Mortgages and Notes (Form 706, Schedule C)
          • (1) Promissory Notes
            • (a) Valuation 13.49
            • (b) How to List in Inventory 13.50
          • (2) Contracts for Sale of Real Property 13.51
          • (3) Form: Sample Mortgage and Note Listings 13.52
        • e. Life Insurance (Form 706, Schedule D or F) 13.53
        • f. Miscellaneous Property (Form 706, Schedule F)
          • (1) Business Interests 13.54
          • (2) Information Needed to Value Business Interests 13.55
            • (a) Limited Partnerships and Limited Liability Companies (LLCs) 13.56
            • (b) General Partnerships 13.57
            • (c) Closely Held Corporations 13.58
          • (3) Tangible Personal Property 13.59
          • (4) Digital Assets 13.59A
          • (5) Other Miscellaneous Assets 13.60
    • E. Assets Not Subject to Probate and Not Included in Inventory 13.61
      • 1. Joint Tenancy Property 13.62
      • 2. Assets With Beneficiary Designations 13.62A
      • 3. Out-of-State Property: Real Property and Tangible Personal Property 13.63
      • 4. Inter Vivos Trusts and Transfers 13.64
      • 5. Life Estates 13.65
      • 6. Miscellaneous Items 13.66
    • F. Form: Inventory and Appraisal (Judicial Council Form DE-160) and Attachment (DE-161) 13.67
    • G. Checklist: Common Errors in Preparation of Inventory 13.68
  • IV. FILING INVENTORY AND APPRAISAL; FURTHER ACTIONS
    • A. Original and Copies 13.69
    • B. When Inventory Due
      • 1. Four-Month Limit 13.70
      • 2. Filing Partial Inventory 13.71
      • 3. Extension of Time to File 13.72
      • 4. Penalties 13.73
      • 5. Removal of Probate Referee for Incompetence or Undue Delay 13.74
    • C. Giving Notice to Those Who Have Requested Special Notice
      • 1. Special Notice Under Prob C §1250 13.75
      • 2. Form: Notice of Filing of Inventory and Appraisal 13.76
    • D. Challenging Referee's Opinion and Objecting to Appraisals 13.77
    • E. Increasing or Decreasing Bond 13.78
  • V. ADDITIONAL INVENTORIES 13.79
    • A. Reappraisal for Sale of Real Property 13.80
    • B. Supplemental Inventory for Newly Discovered Property 13.81
    • C. Form: Corrected Inventory 13.82
  • VI. CALIFORNIA PROBATE REFEREE GUIDE 13.83

14

Creditors' Claims

Margaret M. Hand

  • I. INTRODUCTION 14.1
    • A. Basic Statutory Provisions for Creditors' Claims 14.2
    • B. Checklist: Personal Representative's Handling of Creditors' Claims 14.3
  • II. PERSONAL REPRESENTATIVE: GIVING NOTICE TO CREDITORS 14.4
    • A. Notice to State Agencies: Medi-Cal Recipients; Heirs in Correctional Facilities 14.4A
    • B. Publication of Notice; Proof of Publication 14.5
    • C. Notice to Known or Reasonably Ascertainable Creditors Required 14.6
      • 1. When Notice Not Required 14.7
      • 2. Impracticable and Extended Searches Not Required 14.8
      • 3. Practical Suggestions
        • a. Advise Personal Representative of Duties Regarding Creditors 14.9
        • b. Steps to Take to Identify Creditors 14.10
      • 4. Ascertaining Addresses of Creditors 14.11
      • 5. Time for Giving Notice 14.12
      • 6. Form: Notice of Administration to Creditors (Judicial Council Form DE-157) 14.13
      • 7. Proof of Service of Notice 14.14
    • D. Immunity of Personal Representative From Liability 14.15
    • E. Providing Assistance to Creditors: Legal and Practical Warnings 14.16
  • III. CREDITOR: PREPARING, FILING, AND SERVING CLAIM; OTHER ACTIONS
    • A. What Is a "Claim"?
      • 1. Statutory Definition of "Claim" 14.17
      • 2. Case Law: "Claim" Includes Breach of Agreement to Make Distribution From Estate 14.17A
      • 3. Disputes Over Title or Ownership Are Not Claims 14.18
      • 4. State Agency Seeking Enforcement of Remediation Order Was Not Creditor 14.18A
    • B. Types of Claims That Generally Must Be Filed and Served 14.19
      • 1. Claims Based on Contract 14.20
      • 2. Unmatured or Contingent Claims 14.21
      • 3. Claims on Actions Pending at Date of Death 14.22
      • 4. Claims on Actions Not Pending at Date of Death 14.23
      • 5. Claims for Damages Covered by Decedent's Insurance 14.24
      • 6. Claims for Funeral Expenses 14.25
        • a. Limitations on Funeral Expenses 14.26
        • b. Reimbursement for Funeral Expenses Paid by Others 14.27
      • 7. Breach of Agreement to Make Distribution From Trust or Estate 14.27A
    • C. Circumstances in Which Filing Claim Not Required 14.28
    • D. Creditor's Claim From Beneficiary May Be a Will Contest 14.29
    • E. Procedure
      • 1. Preparation of Claims and Supporting Declarations 14.30
        • a. Describing Claim With Particularity 14.31
        • b. Claims for Services 14.32
        • c. Claims on Written Instruments 14.33
        • d. Secured Claims 14.34
        • e. Documentary Support of Unmatured or Contingent Claims 14.35
        • f. Claim of Representative, Attorney, or Judge 14.36
        • g. Form: Creditor's Claim (Judicial Council Form DE-172) 14.37
      • 2. Time for Filing Claims
        • a. Filing Before Probate Is Open or Letters Issued 14.38
        • b. Filing When Creditor Has Actual Knowledge of Administration 14.39
        • c. Filing When No Notice of Administration 14.40
        • d. Filing Petition for Allowance of Late Claim 14.41
        • e. 1-Year Statute of Limitations Under CCP §366.2 14.42
        • f. 1-Year Statute of Limitations Under CCP §366.3 14.42A
      • 3. Service on Representative 14.43
      • 4. Amendment of Claim 14.44
    • F. Other Possible Creditor Actions
      • 1. Initiate Probate Proceeding 14.45
      • 2. File Request for Special Notice 14.46
      • 3. Seek Remedies if Not Served With Notice of Administration 14.47
        • a. Personal Representative's Liability 14.48
        • b. Distributee Liability 14.49
      • 4. Seek Remedy of Equitable Estoppel to Toll Statute of Limitations 14.50
  • IV. PERSONAL REPRESENTATIVE: RESPONSE TO CLAIMS
    • A. Consideration of Claims
      • 1. Require Proof of Claim 14.51
      • 2. Keep Record of Creditors' Claims 14.52
      • 3. Decide Whether to Waive Claims Defective in Form 14.53
    • B. Allowance or Rejection of Claims
      • 1. Claims Filed With Court 14.54
      • 2. Personal Representative Acting Under IAEA 14.55
      • 3. Personal Representative Not Acting Under IAEA
        • a. Notice of Allowance or Rejection of Claim 14.56
        • b. Seeking Court Approval of Allowance of Claim 14.57
      • 4. Form: Allowance or Rejection of Creditor's Claim (Judicial Council Form DE-174) 14.58
    • C. Settling Disputed or Uncollectible Claims by Agreement or Compromise
      • 1. Personal Representative With IAEA Powers 14.59
      • 2. Personal Representative Without IAEA Powers
        • a. Summary Determination of Controversy Over Claim 14.60
        • b. Compromise of Claims 14.61
    • D. Paying Claims
      • 1. Order of Priority of Classes of Debts 14.62
      • 2. Payment of Allowed Claims 14.63
      • 3. Paying Claims in Insolvent Estates 14.64
      • 4. Payment of Contingent, Disputed Debts or Debts Not Yet Due 14.65
      • 5. Other Rules on Payment of Claims 14.66
      • 6. Interest 14.67
      • 7. Secured Claims 14.68
      • 8. Settlement of Claims Paid Without Filing Creditor's Claim 14.69
    • E. If Validity or Payment of Claim Is Contested 14.70
  • V. CREDITOR: SUIT ON CLAIM
    • A. Threshold Requirement 14.71
    • B. Personal Representative's Failure to Act Treated as Rejection of Claim 14.72
    • C. Time Limitations
      • 1. General 1-Year Period of Limitations Under CCP §366.2 14.73
        • a. Tolling 1-Year Statute 14.74
        • b. Equitable Estoppel 14.75
        • c. Exceptions to CCP §366.2. 14.76
      • 2. Claims Based on Decedent's Promise to Make Postdeath Gift Under CCP §366.3 14.77
      • 3. 90-Day Period for Suit on Rejected Claims 14.78
      • 4. Time Limit to Substitute Representative as Defendant in Pending Action 14.79
    • D. Procedural Guide: Suit on Claim 14.80
    • E. Venue 14.81
    • F. Notice of Pendency of Action
      • 1. Filing Notice in Probate Proceeding 14.82
      • 2. Form: Notice of Pendency of Action 14.83
    • G. Pleadings in Action Against Estate
      • 1. Complaint 14.84
      • 2. Form: Complaint 14.85
      • 3. Special Rules for Claims by Representative or Attorney 14.86
      • 4. Pleadings by Representative 14.87
    • H. Statements of Decedent Regarding Claim as Evidence 14.88
    • I. Effect of Judgment 14.89

15

Independent Administration of Estates

Sarah S. Broomer

Janice Crosetti-Titmus

  • I. THE BASICS
    • A. Purpose 15.1
    • B. Full Versus Limited Authority 15.2
    • C. Classification of IAEA Representative's Powers 15.3
    • D. Fiduciary Standard of Care 15.4
  • II. PETITION FOR AUTHORITY TO ADMINISTER ESTATE UNDER IAEA
    • A. Who May Petition; Full or Limited Powers 15.5
    • B. Request as Part of Petition for Probate or in Separate Petition 15.6
    • C. Bond 15.7
    • D. Form: Petition for Authority Under IAEA 15.8
    • E. Notice of Hearing
      • 1. Requirements 15.9
      • 2. Form: Warning That Must Be Included in Notice of Hearing 15.10
    • F. Objection to Petition for Authority Under IAEA 15.11
    • G. Form: Order Granting Authority Under IAEA 15.12
    • H. Letters Must Include Description of Authority 15.13
  • III. EXERCISE OF IAEA AUTHORITY
    • A. Practical Considerations in Deciding How to Proceed 15.14
      • 1. When Court Supervision May Be Preferred Even When Not Required 15.15
      • 2. When Court Supervision May Be Preferred Over Notice of Proposed Action 15.16
    • B. Actions Requiring Court Supervision
      • 1. Whether Granted Full or Limited Authority (Prob C §10501(a)) 15.17
      • 2. Exceptions to Prob C §10501(a) Requirement 15.18
      • 3. When Granted Only Limited Authority 15.19
    • C. Actions Requiring Notice of Proposed Action 15.20
      • 1. Notice Always Required 15.21
      • 2. Notice Required in Some Circumstances 15.22
      • 3. Procedure for Giving Notice of Proposed Action
        • a. When, How, and to Whom Notice Given 15.23
        • b. Consent to Proposed Action 15.24
        • c. Waiver of Notice of Proposed Action
          • (1) Use of Judicial Council Form 15.25
          • (2) When to Consider Waiver 15.26
        • d. Form: Notice of Proposed Action (Objection—Consent) (Judicial Council Form DE-165) 15.27
        • e. Form: Waiver of Notice of Proposed Action (Probate) (Judicial Council Form DE-166) 15.28
      • 4. Challenging Proposed Action
        • a. Who May Challenge; Methods of Challenging 15.29
        • b. Objection 15.30
        • c. Restraining Order 15.31
          • (1) Form: Ex Parte Application for Restraining Order 15.32
          • (2) Form: Restraining Order 15.33
        • d. Court Supervision Required if There Is Objection or Restraining Order 15.34
      • 5. Effect of Failure to Object 15.35
      • 6. Grounds for Removal of Personal Representative 15.36
      • 7. Protection of Bona Fide Purchaser 15.37
    • D. Actions Not Requiring Notice of Proposed Action 15.38
  • IV. REVOCATION OF AUTHORITY FOR INDEPENDENT ADMINISTRATION 15.39
  • V. CHART: ESTATE TRANSACTIONS UNDER INDEPENDENT ADMINISTRATION 15.40

16

Petition for Instructions or Confirmation

Craig L. Judson

Sharon M. Nagle

  • I. NATURE OF PROCEEDING 16.1
    • A. Matters Subject to Petition 16.2
    • B. When Other Procedures Available 16.3
  • II. PROCEDURE
    • A. Who May Petition 16.4
    • B. Preparing Petition 16.5
      • 1. Pleading in the Alternative When Uncertain 16.6
      • 2. Use by Administrator With Will Annexed or Representative With Independent Powers 16.7
    • C. Form: Petition to Authorize and Instruct or Approve and Confirm Action of Personal Representative 16.8
    • D. Notice 16.9
    • E. Objection to Petition 16.10
    • F. Order 16.11
    • G. Form: Order Authorizing and Instructing or Approving and Confirming Acts of Personal Representative 16.12
    • H. Appeal; Effect of Final Order 16.13

17

Statutory Protections for Family Members

Craig L. Judson

Sharon M. Nagle

Ruth A. Phelps

  • I. INTRODUCTION 17.1
  • II. EXEMPT AND HOMESTEAD PROPERTY 17.2
    • A. Persons Protected Under Prob C §§6500, 6510, 6521 17.3
      • 1. Decedent Is Survived by Surviving Spouse or Registered Domestic Partner and Child 17.4
      • 2. Who Is Decedent's Surviving Spouse or Registered Domestic Partner? 17.5
      • 3. Who Is Not Decedent's Surviving Spouse or Registered Domestic Partner? 17.6
      • 4. Minor Children 17.7
      • 5. Loss of Right Due to Waiver or Express or Implied Conduct 17.8
    • B. Temporary Possession of Family Dwelling and Exempt Property (Prob C §6500) 17.9
      • 1. Exempt Property 17.10
      • 2. Petition; Notice 17.11
      • 3. Form: Petition for Order Modifying Period of Temporary Possession of Family Dwelling and Exempt Property 17.12
      • 4. Form: Order Modifying Period for Temporary Possession of Family Dwelling and Exempt Property 17.13
    • C. Setting Aside Exempt Property Other Than Family Dwelling (Prob C §6510) 17.14
      • 1. Contents of Petition; Notice 17.15
      • 2. Form: Petition for Order Setting Aside Exempt Personal Property 17.16
      • 3. Form: Order Setting Aside Exempt Personal Property 17.17
    • D. Probate Homestead Set-Aside (Prob C §6520)
      • 1. Purpose 17.18
      • 2. Relationship to Declared Homestead 17.19
      • 3. Relationship to Local Ordinances 17.20
      • 4. Persons Protected 17.21
      • 5. Selection of Property
        • a. Only Estate Property Eligible 17.22
        • b. Priority of Property: Community, Quasi-Community, Separate Property 17.23
        • c. Nature of Dwellings to Be Set Aside 17.24
        • d. Property Vested in Third Persons Not Eligible Absent Consent 17.25
      • 6. Court's Discretion; Factors It Must Consider 17.26
      • 7. Duration 17.27
      • 8. Rights of Parties; Right to Partition 17.28
      • 9. Liability of Probate Homestead Property for Claims 17.29
      • 10. Procedure to Obtain Order for Probate Homestead Set-Aside
        • a. Who May Petition; Notice 17.30
        • b. Contents of Petition 17.31
        • c. Form: Petition for Order Setting Aside Probate Homestead 17.32
        • d. Form: Order Setting Aside Probate Homestead 17.33
        • e. Order Setting Aside Probate Homestead Must Be Recorded 17.34
        • f. Appeal 17.35
        • g. Modification or Termination 17.36
      • 11. Income and Estate Tax Consequences of Homestead Set-Aside 17.37
  • III. FAMILY ALLOWANCE
    • A. Purpose 17.38
    • B. Practical Considerations 17.39
    • C. Potential Recipients
      • 1. Those Entitled to Family Allowance 17.40
      • 2. Those Eligible for Family Allowance in Court's Discretion 17.41
      • 3. Difference Between Classes of Persons Eligible 17.42
    • D. Determining Amount of Award
      • 1. Amount Necessary According to Recipient's Circumstances 17.43
        • a. Child Support Payments 17.44
        • b. Preliminary Distributions 17.45
      • 2. When More Than One Person Eligible 17.46
    • E. Source of Funds
      • 1. Charge Against Estate 17.47
      • 2. Income or Principal 17.48
    • F. Date of First Payment; Retroactivity 17.49
    • G. Duration
      • 1. If Estate Is Solvent 17.50
      • 2. If Estate Is Insolvent 17.51
      • 3. Continuation of Estate Administration to Pay Family Allowance in Limited Circumstances 17.52
    • H. Priority of Family Allowance in Payment of Decedent's Debts 17.53
    • I. Procedure 17.54
      • 1. Payments Under Independent Administration of Estates Act (IAEA) 17.55
      • 2. Petition Under Prob C §6540 17.56
        • a. When Petition May Be Filed Ex Parte 17.57
        • b. Who May Petition 17.58
        • c. Contents of Petition: Necessary Allegations 17.59
        • d. Notice 17.60
        • e. Form: Petition for Payment of Family Allowance 17.61
        • f. Form: Order for Family Allowance 17.62
      • 3. Modification and Termination of Family Allowance
        • a. Modification 17.63
        • b. Termination 17.64
        • c. Petition to Modify or Terminate Family Allowance; Notice 17.65
          • (1) Form: Petition to Modify or Terminate Family Allowance 17.66
          • (2) Form: Order Modifying or Terminating Family Allowance 17.67
      • 4. Appealability of Court Order; Stay of Family Allowance Pending Appeal 17.68
      • 5. Conclusiveness of Orders; Collateral Attack 17.69
    • J. Income and Estate Tax Consequences of Family Allowance 17.70

18

Sales of Estate Property

Deanna D. Lyon

  • I. GENERAL RULES FOR PROBATE SALES OF REAL AND PERSONAL PROPERTY 18.1
    • A. Attorney Supervision 18.2
    • B. When Property May or Must Be Sold
      • 1. Testamentary Power or Duty 18.3
      • 2. Discretionary Authority
        • a. Grounds for Discretionary Sale 18.4
        • b. Determining Necessity or Estate Advantage
          • (1) When Sale Improper 18.5
          • (2) When Sale Proper 18.6
      • 3. Petition to Compel Sale by Interested Person 18.7
      • 4. Scope of Discretion of Personal Representative 18.8
        • a. Effect of Rules of Abatement 18.9
        • b. Sale of Specifically Devised Property 18.10
    • C. Public or Private Sale 18.11
    • D. Appraisal and Sale of Real or Personal Property as Unit 18.12
    • E. Application of Proceeds in Sales of Encumbered Property 18.13
    • F. Sale for More or Less Than Appraised Value 18.14
    • G. Sale of Cotenancy Interest 18.15
    • H. Void or Voidable Sales
      • 1. Lack of Jurisdiction Versus Procedural Errors 18.16
      • 2. Prohibited Sale to Personal Representative or Representative's Attorney 18.17
    • I. Employment and Compensation of Broker, Agent, Auctioneer
      • 1. Written Contract
        • a. Contract With Broker or Agent for Sale of Real or Personal Property 18.18
        • b. Contract With Auctioneer for Sale of Real or Personal Property 18.19
        • c. Contract Provision for Compensation 18.20
        • d. Liability Under Contract 18.21
      • 2. Petition to Execute Exclusive Listing Agreement for Real Property 18.22
        • a. Contents of Petition 18.23
        • b. Form: Ex Parte Petition to Execute Exclusive Listing Agreement 18.24
        • c. Form: Order Authorizing Execution of Exclusive Listing Agreement 18.25
      • 3. Compensation
        • a. General Rules 18.26
        • b. Broker or Agent
          • (1) Court Determines Compensation 18.27
          • (2) Specific Probate Code Provisions Governing Compensation 18.28
        • c. Auctioneer 18.29
  • II. SALE OF REAL PROPERTY
    • A. Preliminary Considerations for Personal Representative
      • 1. Review Contents of Exclusive Listing Agreement 18.30
      • 2. Contact Title Company Early 18.31
    • B. Sale Under Independent Administration of Estates Act
      • 1. Personal Representative's Authority to Sell Without Court Confirmation 18.32
      • 2. When Notice of Proposed Action Required Under IAEA 18.33
      • 3. When Personal Representative May Choose to Proceed With Court Approval 18.34
      • 4. Situations in Which Court Confirmation Required Under IAEA 18.35
        • a. Property Sold to or Exchanged for Property of Personal Representative or Representative's Attorney; Sold or Exchanged Under Limited Authority 18.36
        • b. Objection to Proposed Action or Restraining Order Issued 18.37
    • C. Court Confirmation Required or Sought 18.38
      • 1. Checklist: Reasons for Delay in Confirming Sales of Real Property 18.39
      • 2. Notice of Sale 18.40
        • a. Publication of Notice
          • (1) When Publication Required 18.41
          • (2) Manner of Publishing Notice 18.42
          • (3) When to Publish Notice 18.43
        • b. Order Shortening Time of Notice
          • (1) Statutory Provisions 18.44
          • (2) Form: Order Shortening Time of Notice of Sale 18.45
        • c. What to Include in Notice
          • (1) Statutory Requirements 18.46
          • (2) Optional Information and Local Rule Requirements 18.47
            • (a) Sale as Unit 18.48
            • (b) Sale of Undivided Interest 18.49
            • (c) Disclosure of Encumbrances 18.50
            • (d) Sale for Cash or Credit 18.51
          • (3) Form: Notice of Sale 18.52
      • 3. Place, Date, and Time of Public Auction 18.53
      • 4. Bids in Private Sales 18.54
        • a. Bid Terms 18.55
        • b. Bidder's Assumption of Encumbrances 18.56
        • c. Form: Bid to Purchase Real Property; Representative's and Broker's Acceptance 18.57
        • d. Purchase Agreement 18.58
        • e. Disclosures; Minimizing Claims of Misrepresentation
          • (1) Extent of Exemptions From Disclosures 18.59
          • (2) Required Disclosures 18.60
          • (3) Form: Buyer Has Not Relied on Representations by Seller 18.61
      • 5. Timing of Sale 18.62
      • 6. Preliminary Title Report 18.63
      • 7. Appraisal for Sale
        • a. Statutory Requirements 18.64
        • b. Practical Considerations 18.65
      • 8. Report of Sale and Petition for Confirmation of Sale of Real Property 18.66
        • a. Preparing Report and Petition for Confirmation 18.67
          • (1) Particulars of Sale 18.68
          • (2) Statement About Bond 18.69
        • b. Form: Report of Sale and Petition for Order Confirming Sale of Real Property (Judicial Council Form DE-260/GC-060) 18.70
      • 9. Hearing to Confirm Sale
        • a. Notice of Hearing 18.71
        • b. Requirements for Court Confirmation of Private Sale 18.72
        • c. Overbids 18.73
          • (1) Must Be in Writing 18.74
          • (2) Required Amount 18.75
          • (3) Discretion of Court 18.76
          • (4) Form: Increased Bid in Open Court 18.77
        • d. Order Confirming Sale 18.78
        • e. Form: Order Confirming Sale of Real Property (Judicial Council Form DE-265/GC-065) 18.79
      • 10. Actions After Court Order
        • a. Dealing With Title Company
          • (1) Certified Copy of Order to Title Company 18.80
          • (2) Information About Federal Estate Tax 18.81
        • b. Passing Title With Deed 18.82
        • c. Form: Deed to Real Property 18.83
      • 11. Appeal; Motion to Set Aside Order 18.84
      • 12. Representative's Remedies
        • a. If Purchaser Withdraws Before Confirmation of Sale 18.85
        • b. If Purchaser Defaults After Confirmation of Sale 18.86
      • 13. Sales of Particular Types of Real Property
        • a. Specific Statutory Provisions 18.87
        • b. Leaseholds 18.88
        • c. Condominiums and Cooperative Apartments 18.89
        • d. Dedication or Conveyance of Interest in Real Property 18.90
  • III. SALE OF PERSONAL PROPERTY
    • A. Sale Under Independent Administration of Estates Act
      • 1. When Notice of Proposed Action Required; Exceptions 18.91
      • 2. When Court Confirmation Required
        • a. If Objection to Proposed Action, or Restraining Order Issued 18.92
        • b. If Property Sold to or Exchanged for Property of Personal Representative or Representative's Attorney 18.93
        • c. If Personal Representative Elects to Obtain Court Supervision 18.94
      • 3. Procedure 18.95
    • B. Sales of Particular Types of Personal Property
      • 1. Specific Statutory Provisions 18.96
      • 2. Notice of Sale, Prior Court Approval, and Subsequent Court Confirmation or Approval Not Required 18.97
      • 3. Simplified Procedure for Securities 18.98
        • a. Petition for Authority to Sell Securities 18.99
        • b. Form: Ex Parte Petition for Authority to Sell Securities and Order (Judicial Council Form DE-270/GC-070) 18.100
        • c. When Notice of Sale Not Required 18.101
        • d. Notice of Hearing 18.102
      • 4. Sales of Perishable or Depreciating Property, or Property Needed for Family Allowance
        • a. Notice of Sale and Court Confirmation or Approval Not Required 18.103
        • b. Passage of Title 18.104
        • c. Definition of "Perishable" or "Depreciating" Property 18.105
        • d. Court Confirmation or Approval 18.106
        • e. Procedure for Obtaining Court Approval 18.107
        • f. Form: Ex Parte Petition for Approval of Sale of Personal Property and Order (Judicial Council Form DE-275/GC-075) 18.108
    • C. All Other Sales: Notice of Sale and Court Confirmation Required 18.109
      • 1. Notice of Sale 18.110
        • a. Required Contents of Notice 18.111
          • (1) Cash or Credit 18.112
          • (2) No Requirement That Minimum Price Be Percentage of Appraised Value or That Inventory and Appraisal Be Filed 18.113
        • b. Form: Notice of Sale 18.114
      • 2. Local Rule May Require Appraisal 18.115
      • 3. Sale or Auction 18.116
      • 4. Report of Sale and Petition for Order Confirming Sale of Personal Property 18.117
        • a. Contents of Report and Petition 18.118
        • b. Form: Report of Sale and Petition for Order Confirming Sale of Personal Property 18.119
      • 5. Confirmation of Sale
        • a. Notice of Hearing 18.120
        • b. Overbids 18.121
        • c. Hearing and Order 18.122
        • d. Form: Order Confirming Sale of Personal Property 18.123
      • 6. Effect of Order 18.124
      • 7. Transfer of Title
        • a. Bill of Sale 18.125
        • b. Form: Bill of Sale 18.126
        • c. Transfer of Motor Vehicles 18.127

19

Investments and Purchases of Property

May Lee Tong

  • I. KEY CONCEPTS
    • A. Duty to Preserve Estate 19.1
    • B. Preservation of Estate Versus Investment 19.2
    • C. Standard of Care
      • 1. Ordinary Care and Diligence: Prob C §9600 19.3
      • 2. Trustee's Prudent Investor Rule Does Not Apply 19.4
    • D. Hiring Outside Investment Advisors 19.5
      • 1. Form: Petition for Authority to Employ Investment Advisor 19.6
      • 2. Form: Order Authorizing Employment of Investment Advisor 19.7
    • E. Chart: Summary of Probate Code Investment Provisions 19.8
  • II. PERSONAL REPRESENTATIVE WITH AUTHORITY UNDER THE INDEPENDENT ADMINISTRATION OF ESTATES ACT (IAEA) 19.9
    • A. Investments Authorized Without Notice, Notice of Proposed Action, or Court Approval 19.10
    • B. Investments Requiring Notice of Proposed Action 19.11
  • III. PERSONAL REPRESENTATIVE WITHOUT IAEA AUTHORITY
    • A. Investments Authorized Without Court Approval
      • 1. Cash in Insured Interest-Bearing Accounts 19.12
        • a. Title on Account 19.13
        • b. Deciding When and How Much to Invest in Interest-Bearing Accounts 19.14
      • 2. Direct Obligations of United States or California 19.15
      • 3. Money Market Mutual Funds 19.16
      • 4. Common Trust Fund Units 19.17
    • B. Investments Authorized With Court Approval
      • 1. As Authorized in Will 19.18
        • a. Scope of Investment Power in Will 19.19
        • b. Procedure
          • (1) Petition and Notice 19.20
          • (2) Order 19.21
      • 2. Federal and State Securities 19.22
      • 3. Purchase of Annuity for Beneficiary
        • a. Difference Between Annuity and Income From Trust 19.23
        • b. Authority to Purchase Annuity Contained in Will 19.24
        • c. Source of Funds 19.25
        • d. Practical Considerations 19.26
        • e. Petition; Notice 19.27
        • f. Order 19.28
        • g. Form: Petition for Authority to Purchase Annuity 19.29
        • h. Form: Order Authorizing Representative to Purchase Annuity Policy 19.30
      • 4. Exercise Option 19.31
      • 5. Purchase Securities or Commodities Sold Short 19.32
      • 6. Subscription Rights 19.33
      • 7. Court May Authorize Other Investments 19.34
        • a. Petition for Authority to Invest Estate Funds
          • (1) Preparing Petition 19.35
          • (2) Form: Petition for Authority to Invest Money 19.36
        • b. Form: Order for Investment of Funds 19.37

20

Compromise and Settlement of Claims

Andrea Gee

  • I. OVERVIEW
    • A. Personal Representative's Authority to Compromise and Settle Claims 20.1
    • B. Advantages to Estate 20.2
  • II. POWER TO ACT WITHOUT COURT AUTHORIZATION
    • A. Authority Under Independent Administration of Estates Act
      • 1. Actions Allowed Without Giving Notice of Proposed Action 20.3
      • 2. Actions Allowed Only After Giving Notice of Proposed Action 20.4
      • 3. Whether to Seek Court Authorization or Give Notice of Proposed Action When Not Required 20.5
    • B. General Powers of Personal Representative: When Authorization, Instruction, Approval, and Confirmation Not Required 20.6
      • 1. Specific Types of Claims That May Be Compromised or Settled Without Court Authorization; Practical Considerations 20.7
      • 2. Exceptions to General Authority to Compromise or Settle Claims 20.8
    • C. Report of Compromised Claims in Report and Account 20.9
  • III. POWER TO ACT WITH COURT AUTHORIZATION
    • A. When Required
      • 1. Under IAEA 20.10
      • 2. Under General Powers 20.11
    • B. When Available But Not Required 20.12
    • C. Protecting Representative From Liability: A Practical Consideration 20.13
    • D. When to File Petition 20.14
    • E. Procedure
      • 1. Petition 20.15
      • 2. Notice 20.16
      • 3. Hearing and Order 20.17
      • 4. Actions After Order
        • a. Appeal 20.18
        • b. Transfer of Real Property to Carry Out Order 20.19
        • c. Compliance With Compromise and Settlement 20.20
  • IV. SPECIFIC COMPROMISES AND SETTLEMENTS
    • A. Compromise and Settlement of Claims or Suits Against Estate 20.21
      • 1. Contents of Petition 20.22
      • 2. Form: Petition for Order Authorizing Compromise and Settlement of Creditor's Claim or Suit 20.23
      • 3. Form: Order Authorizing Compromise and Settlement of Creditor's Claim or Suit 20.24
    • B. Compromise of Obligations Due Decedent 20.25
      • 1. Form: Petition for Order Authorizing Discharge of Obligation Due Decedent 20.26
      • 2. Form: Order Authorizing Representative to Discharge Obligation Due Decedent 20.27
    • C. Compromise of Claims Involving Encumbered Estate Real Property
      • 1. Introduction 20.28
      • 2. Antideficiency Protection Under Purchase Money Note 20.29
      • 3. Representative's Authority to Stop Payment on Estate Obligation 20.30
      • 4. Petition to Compromise and Petition for Instructions Compared 20.31
      • 5. Creditors' Claims Requirements 20.32
      • 6. Form: Petition for Order Authorizing Compromise of Claim Against Estate and Conveyance of Property to Lender in Complete Satisfaction of Estate's Obligation Under Purchase Money Note 20.33
      • 7. Form: Order Authorizing Compromise of Claim Against Estate and Conveyance of Property to Lender in Complete Satisfaction of Estate's Obligation Under Purchase Money Note 20.34
    • D. Accepting Deed in Lieu of Foreclosure or Sale 20.35
      • 1. Advantages to Estate 20.36
      • 2. Form: Petition for Order Authorizing Acceptance of Deed in Lieu of Foreclosure 20.37
      • 3. Form: Order Authorizing Acceptance of Deed in Lieu of Foreclosure 20.38
    • E. Granting Partial Satisfaction or Partial Reconveyance 20.39
      • 1. Form: Petition for Order Authorizing Partial Satisfaction and Reconveyance 20.40
      • 2. Form: Order Authorizing Partial Satisfaction and Reconveyance 20.41

21

Borrowing Money

Alex R. Borden

  • I. DECISION TO BORROW
    • A. Borrowing Versus Selling 21.1
    • B. Factors for Personal Representative to Consider 21.2
      • 1. Specifically Devised Property 21.3
      • 2. Service and Repayment of Loan 21.4
      • 3. Avoiding Speculation 21.5
      • 4. Beneficiaries' Consent 21.6
      • 5. Possibility of Electing Installment Payment of Estate Taxes 21.7
    • C. Informal Advances or Loans to Estate Without Prior Court Authorization
      • 1. By Representative 21.8
      • 2. By Devisee or Other Third Party 21.9
  • II. BORROWING WITHOUT COURT ORDER UNDER INDEPENDENT ADMINISTRATION OF ESTATES ACT
    • A. Power to Borrow 21.10
    • B. Deciding Whether to Use IAEA Power or Seek Court Authority 21.11
  • III. BORROWING WITH COURT AUTHORITY ON SECURED OR UNSECURED INSTRUMENT 21.12
    • A. Purpose of Loan
      • 1. Probate Code §9800 21.13
      • 2. Acting Jointly With Other Co-Owners 21.14
    • B. When Surviving Spouse's Consent Required 21.15
    • C. Procedure
      • 1. Petition
        • a. Probate Code Requirements 21.16
        • b. Requirements in Local Rules 21.17
        • c. Form: Petition for Authority to Borrow Money and Execute Security Instrument 21.18
      • 2. Notice 21.19
      • 3. Hearing and Order 21.20
      • 4. Form: Order Authorizing Representative to Borrow Money and to Execute Security Instrument 21.21
      • 5. Execution of Instruments 21.22
    • D. Effect of Court Order
      • 1. Order Appealable 21.23
      • 2. Rights of Secured Lenders 21.24
      • 3. Rights of Unsecured Lenders 21.25
      • 4. Liability of Personal Representative 21.26
      • 5. Distribution Subject to Encumbrance 21.27

22

Options and Leases

Richard A. Gorini

Alex R. Borden

  • I. TESTAMENTARY OPTION TO PURCHASE
    • A. Time Limits on Exercise of Option 22.1
    • B. Procedure for Transfer or Conveyance 22.2
    • C. Restrictions on Exercise of Option Under Independent Administration of Estates Act (IAEA) 22.3
    • D. Right of First Refusal 22.3A
    • E. Procedure
      • 1. Petition 22.4
      • 2. Notice of Hearing 22.4A
      • 3. Form: Petition by Beneficiary of Testamentary Option for Order Authorizing and Directing Sale of Estate Property to Petitioner 22.5
      • 4. Order Directing Transfer or Conveyance 22.6
      • 5. Form: Order Authorizing and Directing Representative to Sell Estate Property to Beneficiary of Testamentary Option 22.7
  • II. GRANT OF OPTION TO BUY ESTATE REAL PROPERTY
    • A. Authority Under IAEA 22.8
    • B. Authority Under Prob C §§9960—9966 22.9
    • C. Procedure
      • 1. Petition
        • a. Required Contents 22.10
        • b. Minimum Purchase Price 22.11
        • c. Form: Petition for Order Authorizing and Directing Representative to Grant Option to Buy Estate Real Property 22.12
      • 2. Notice of Hearing 22.13
      • 3. Required Findings 22.14
      • 4. Order
        • a. Order Authorizing Personal Representative to Grant Option 22.15
        • b. Form: Order Authorizing and Directing Representative to Grant Option to Buy Estate Real Property 22.16
    • D. Expiration of Option; Options Beyond Close of Administration 22.17
  • III. LEASES
    • A. Introduction 22.18
    • B. Authority to Lease
      • 1. Fiduciary Duties Apply 22.19
      • 2. Special Administrator 22.20
      • 3. Personal Representative
        • a. Testamentary Power 22.21
        • b. Leases Not Requiring Court Authorization
          • (1) Limited Duration or Month-to-Month Leases 22.22
          • (2) Personal Representative With Independent Powers 22.23
        • c. Leases Requiring Court Authorization 22.24
        • d. Renewal or Modification of Lease Made by Decedent 22.25
      • 4. Practical Considerations
        • a. Determining Whether to Lease
          • (1) Leasing Versus Selling 22.26
          • (2) Tax Factors 22.27
        • b. Determining Terms of Lease 22.28
    • C. Obtaining Court Authorization
      • 1. Petition
        • a. Requirements 22.29
        • b. Form: Petition for Order Authorizing Lease of Real Property 22.30
      • 2. Notice 22.31
      • 3. Hearing and Order 22.32
        • a. Terms and Conditions of Court-Ordered Leases
          • (1) Provisions Under Prob C §9946 22.33
          • (2) Duration of Lease 22.34
        • b. Form: Order Authorizing and Directing Lease of Real Property 22.35
        • c. Form: Lease Under Authority of Order 22.36
      • 4. Conclusiveness of Order 22.37

23

Handling a Decedent's Business Interests

Jonathan L. Rosenbloom

Sean R. Kenney

  • I. INTRODUCTION 23.1
  • II. ETHICAL ISSUES
    • A. Attorney's Potential Conflict of Interest 23.2
      • 1. Required Written Consent
        • a. Only From Current Client or Former Client 23.3
        • b. From Multiple Clients 23.4
      • 2. Required Disclosure 23.5
        • a. Scope of Disclosure 23.6
        • b. Disclosure Terms 23.7
      • 3. Form: Potential Conflicts Disclosure and Waiver for Personal Representative and Family Member Beneficiary 23.8
    • B. Personal Representative's Potential Conflict of Interest 23.9
      • 1. Representative Should Avoid Conflict Issues 23.10
      • 2. Disqualification for Conflicts of Interest 23.11
  • III. INITIAL DECISIONS AND RESPONSIBILITIES
    • A. Consider Duty to Preserve Value of Business 23.12
    • B. Decide Whether to Continue Business 23.13
    • C. Check License Requirements 23.14
    • D. Obtain Insurance 23.15
    • E. Find Evidence of Decedent's Intent for Disposition of Business
      • 1. Examine Will or Letter of Instruction 23.16
      • 2. Examine Internal Business Documents 23.17
    • F. File Fictitious Business Name 23.18
    • G. Review Franchise Agreement 23.19
    • H. Determine if Probate Is Necessary 23.20
    • I. Assess Property for Hazardous Waste Contamination 23.21
    • J. Consider Need for Special Administrator 23.22
    • K. Arrange for Appraisals 23.23
  • IV. HANDLING DIFFERENT TYPES OF BUSINESSES
    • A. Authority to Continue Business
      • 1. Authority in Will 23.24
      • 2. If Representative Has IAEA Powers
        • a. Authority Without Court Supervision 23.25
        • b. Notice Required 6 Months After Letters Issued 23.26
        • c. Actions That Require Court Authorization 23.27
      • 3. If Representative Lacks IAEA Powers 23.28
      • 4. Effect of Operating Business Without Court Authority 23.29
    • B. Sole Proprietorship 23.30
      • 1. Court Approval Required After 6 Months 23.31
      • 2. Petition for Authority to Continue or Discontinue Business 23.32
        • a. Required Showing for Petition 23.33
        • b. Contents of Petition 23.34
        • c. Form: Petition to Authorize Continuation of Business or to Direct Discontinuance of Business 23.35
        • d. Form: Order Authorizing Continuation of Business or Directing Discontinuance of Business 23.36
    • C. Partnerships 23.37
      • 1. Partnership Agreement Governs 23.38
      • 2. General Partnership 23.39
        • a. Governing Law 23.40
        • b. Relevant Documents 23.41
        • c. Effect of Death of Partner 23.42
        • d. Value of Deceased Partner's Interest 23.43
        • e. Personal Representative's Rights 23.44
      • 3. Limited Partnership 23.45
        • a. Governing Law 23.46
        • b. Relevant Documents 23.47
          • (1) Making Documents Available for Inspection 23.48
          • (2) Keeping Information Confidential 23.49
        • c. Effect of Death of Partner
          • (1) General Partner 23.50
            • (a) Partnerships Under ULPA [Deleted] 23.51
            • (b) Partnerships Under CRLPA [Deleted] 23.52
          • (2) Limited Partner 23.53
        • d. Personal Representative's Rights 23.54
      • 4. Limited Liability Partnership 23.55
        • a. Only Certain Professions Allowed 23.56
        • b. Governing Law 23.57
        • c. Relevant Documents 23.58
        • d. Effect of Death of Limited Liability Partner; Valuing Partnership Interest 23.59
      • 5. Personal Representative's Authority to Continue as Partner 23.60
        • a. Court Order Required 23.61
        • b. Personal Representative's Authority to Act as Limited Partner for Purpose of Settling Estate 23.62
        • c. Form: Petition for Authority for Personal Representative to Serve as Partner in Decedent's Partnership 23.63
        • d. Form: Order Authorizing Personal Representative to Serve as Partner in Decedent's Partnership 23.64
    • D. Limited Liability Companies (LLCs) 23.65
      • 1. LLC Governing Law Changes 23.65A
      • 2. Relevant Documents 23.66
      • 3. Nature of LLC Interest 23.67
        • a. Membership Interest 23.68
        • b. Transferable Interests and Transferees 23.69
        • c. Right to Information 23.69A
      • 4. Effect of LLC Member's Death: Dissociation 23.70
      • 5. Personal Representative's Rights 23.71
    • E. Closely Held Corporate Interests 23.72
      • 1. Relevant Documents 23.73
      • 2. Personal Representative's Role 23.74
    • F. Professional Practices
      • 1. Special Considerations 23.75
      • 2. Professional Corporations 23.76
      • 3. Handling a Deceased Attorney's Practice 23.77
        • a. Personal Representative's Responsibilities 23.78
        • b. Appointment of Practice Administrator 23.79
        • c. Contents of Petition for Appointment of Practice Administrator 23.80
        • d. Notice of Petition 23.81
        • e. Powers and Duties of Practice Administrator 23.82
        • f. Compensation and Discharge of Practice Administrator 23.83
        • g. State Bar May Take Over Practice Succession 23.84
        • h. Checklist for Law Firm Practice Administrator 23.85
        • i. Form: Ex Parte Petition for Appointment of Practice Administrator 23.86
        • j. Form: Order Appointing Practice Administrator 23.87
  • V. ISSUES WHEN OPERATING BUSINESS 23.88
    • A. Representative's Standard of Care 23.89
    • B. Attorney-Client Privileged Communications 23.90
    • C. Personal Representative's Liability
      • 1. Torts During Operation of Business 23.91
      • 2. Business Debts 23.92
    • D. Accounting Requirement 23.93
  • VI. DISPOSING OF BUSINESS INTERESTS 23.94
    • A. Buy-Sell Agreement 23.95
      • 1. Specific Performance of Agreement 23.96
        • a. Requirements for Specific Performance 23.97
        • b. Defenses to Specific Performance 23.98
      • 2. Obtaining Court Approval 23.99
      • 3. Form: Petition for Authority to Transfer Business Interest Subject to Agreement 23.100
      • 4. Form: Order Authorizing Transfer of Business Interest Subject to Agreement 23.101
    • B. No Buy-Sell Agreement 23.102

24

Accounts

Paige T. Eldredge

Janet Kahn

  • I. RECORDKEEPING TO FACILITATE PREPARATION OF ACCOUNT
    • A. Necessity for Recordkeeping
      • 1. Acquiring Initial Records 24.1
      • 2. Ongoing Recordkeeping 24.2
        • a. Form: Letter Advising Personal Representative Regarding Ongoing Recordkeeping 24.3
        • b. Form: Sample Timesheet for Personal Representative 24.4
    • B. Delegation of Personal Representative's Duties to Keep and Render Accounts 24.5
      • 1. Division of Duties and Fees 24.6
      • 2. Qualifications of Agent 24.7
      • 3. Acquiring Missing Bank Records if Duties Are Delegated 24.8
      • 4. Form: Authorization to Disclose Information 24.9
    • C. Documents and Records
      • 1. Letters Testamentary or of Administration and Death Certificates 24.10
      • 2. Heir and Beneficiary Information 24.11
      • 3. Administrative Records 24.12
      • 4. Original Bank and Brokerage Statements 24.13
    • D. Receipt and Disbursement Ledger 24.14
      • 1. Deposits 24.15
      • 2. Disbursements 24.16
      • 3. Form: Example Reconciliation to Statements 24.17
      • 4. Allocation of Receipts and Disbursements to Principal and Income
        • a. Applicable Law 24.18
        • b. Chart: Allocation of Receipts and Disbursements Under California Uniform Principal and Income Act (UPAIA) 24.19
      • 5. Form: Sample Ledger 24.20
      • 6. Computerized Recordkeeping; Spreadsheets 24.21
    • E. Online Banking 24.22
    • F. Fiduciary Accounting Software Programs 24.23
    • G. Disposing of Records 24.24
  • II. WHEN TO ACCOUNT
    • A. Practical Considerations 24.25
    • B. When Account Is Required 24.26
      • 1. Accounts on Court Order 24.27
      • 2. Account Required After Authority Terminated 24.28
      • 3. Account Required if Personal Representative Dies, Becomes Incapacitated, or Absconds 24.29
    • C. If Required Account Not Filed 24.30
    • D. When Account Not Required
      • 1. Waiver or Satisfaction of Interest in Full 24.31
      • 2. Who May Execute Waiver or Acknowledgment 24.32
      • 3. File as Separate Document or Include in Petition 24.33
      • 4. Form: Waiver of Account by Distributee 24.34
      • 5. Form: Acknowledgment of Satisfaction of Interest by Distributee 24.35
  • III. PREPARING ACCOUNT AND ACCOUNT SCHEDULES
    • A. Purpose of Account and Schedules 24.36
    • B. When Tax Compliance of Nonresident Beneficiaries Required [Deleted] 24.37
    • C. Categorized Versus Chronological Account 24.38
    • D. Contents and Form of Account 24.39
      • 1. Summary of Account 24.40
      • 2. Required Schedules 24.41
      • 3. Additional Schedules 24.42
      • 4. Determining Which Schedules to Include 24.43
      • 5. Carry Value 24.44
    • E. Preparing Summary of Account 24.45
      • 1. Form: Sample Summary of Account 24.46
      • 2. Form: Sample Summary of Account if Real Property Specifically Devised 24.47
      • 3. Problems With Balancing 24.48
    • F. Charges
      • 1. Property on Hand at Beginning of Account Period
        • a. Value of Property on Hand at Beginning of Account Period 24.49
        • b. Form: Property on Hand at Beginning of Account Period 24.50
      • 2. Additional Assets Received
        • a. Listing Additional Assets Received 24.51
        • b. Form: Additional Assets Received 24.52
      • 3. Receipts 24.53
        • a. Form: Receipts—Chronological 24.54
        • b. Form: Receipts—Categorized 24.55
        • c. Schedule Showing Allocation of Receipt Between Income and Principal 24.56
        • d. Form: Receipts When All or Part of the Estate to Be Distributed to an Income Beneficiary 24.57
      • 4. Gains on Sales or Other Dispositions
        • a. Listing Gains on Sales or Other Dispositions 24.58
        • b. Form: Gains on Sales or Other Dispositions 24.59
      • 5. Net Income (or Loss) From Trade or Business
        • a. Accounting Principles 24.60
        • b. Form: Net Income From Trade or Business (Rental Property) 24.61
        • c. Form: Net Income From Trade or Business (Business) 24.62
      • 6. Disbursements
        • a. In General 24.63
        • b. Form: Disbursements—Chronological Account 24.64
        • c. Form: Disbursements—Categorized Account 24.65
        • d. Allocations Between Principal and Income When All or Part of Estate to Be Distributed to Income Beneficiary 24.66
          • (1) Typical Principal and Income Disbursements 24.67
          • (2) Treatment of Real Property Taxes 24.68
          • (3) Form: Disbursements When All or Part of Estate to Be Distributed to Income Beneficiary 24.69
      • 7. Losses on Sales or Other Dispositions
        • a. Listing Losses on Sales or Other Dispositions 24.70
        • b. Form: Losses on Sales or Other Dispositions 24.71
      • 8. Distributions
        • a. Cash, Assets, and Specific Bequests 24.72
        • b. Form: Distributions 24.73
      • 9. Other Credits
        • a. Listing Other Credits 24.74
        • b. Form: Other Credits 24.75
      • 10. Property on Hand at Close of Account Period
        • a. Listing Property on Hand at Close of Account Period 24.76
        • b. Common Errors in Preparation of Property on Hand Schedule 24.77
        • c. Form: Property on Hand at Close of Account Period 24.78
    • G. Additional Schedules Required; Informational Schedules 24.79
      • 1. Changes in Form of Assets 24.80
        • a. Form: Purchases—Reinvested Dividends and Capital Gains Distributions 24.81
        • b. Form: Stock Splits 24.82
        • c. Form: Spin-Offs and Stock Distributions 24.83
        • d. Form: Return on Principal 24.84
      • 2. Liabilities 24.85
      • 3. Proposed Distribution 24.86

25

Preliminary Distributions

Fatima Brunson Evans

  • I. NATURE OF PROCEEDING AND WHEN TO USE IT 25.1
    • A. Distinguished From Other Actions
      • 1. Petition to Determine Heirship 25.2
      • 2. Request for Family Allowance 25.3
      • 3. Petition Under Prob C §850 25.4
    • B. Preliminary Distribution in California Ancillary Proceeding 25.5
    • C. Deciding Whether to Petition
      • 1. Factors to Consider
        • a. Policy Favoring Early Distribution 25.6
        • b. Reasons for Making Preliminary Distributions 25.7
        • c. Tax Considerations
          • (1) Income Tax Issues 25.8
          • (2) Fixing Alternate Valuation Date 25.9
        • d. Usefulness of Establishing Testamentary Trust in Order to Modify It 25.10
        • e. Effect of Concurrent Litigation 25.11
        • f. Costs of Petition and Bond 25.12
      • 2. Balancing Factors 25.13
  • II. PROCEEDINGS FOR PRELIMINARY DISTRIBUTION
    • A. Types of Proceedings for Preliminary Distribution
      • 1. Summary of Statutory Bases for Preliminary Distribution 25.14
      • 2. Chart: Comparison of Petitions for Preliminary Distribution Under Prob C §§11620 and 11623 25.15
    • B. Preliminary Distribution Under IAEA
      • 1. With Notice of Proposed Action Under Prob C §10520 25.16
      • 2. By Petition Under Prob C §11623 25.17
        • a. Who May Petition; Time for Filing 25.18
        • b. Distributee's Bond 25.19
        • c. Amount to Be Distributed 25.20
        • d. Inventory and Appraisal 25.21
        • e. Whether to Include an Account 25.22
        • f. Costs for Petition for Preliminary Distribution 25.23
    • C. Preliminary Distribution Under Prob C §11620
      • 1. Who May Petition; Time for Filing 25.24
      • 2. Distributee's Bond 25.25
      • 3. Allowable Amounts of Distribution 25.26
      • 4. Inventory and Appraisal 25.27
      • 5. Whether to Include an Account 25.28
      • 6. Costs of Petition for Preliminary Distribution 25.29
    • D. Procedural Checklist 25.30
    • E. Petition
      • 1. Importance of Following Local Rules of Court 25.31
      • 2. California Rules of Court 7.250 Requirements 25.32
      • 3. California Rules of Court 7.651 Requirements 25.33
      • 4. California Rules of Court 7.652 Requirements 25.34
      • 5. Inclusion in Petition of Confirmation of Previous Unauthorized Distribution 25.35
      • 6. Supporting Documents 25.36
        • a. Inventory and Appraisal 25.37
        • b. Account 25.38
        • c. Form: Trustee's Declaration Consenting to Act 25.39
      • 7. Forms for Petition for Preliminary Distribution
        • a. Form: Title and Introductory Paragraphs 25.40
        • b. Form: Compliance With Notice Requirements 25.41
        • c. Form: Inventory and Appraisal 25.42
        • d. Form: Character of Estate Property 25.43
        • e. Form: Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration 25.44
        • f. Form: Actions Taken Under Independent Administration of Estates Act (IAEA) 25.45
        • g. Form: Debts Paid Without Creditors' Claims 25.46
        • h. Form: Creditors' Claims 25.47
        • i. Form: Estate Taxes 25.48
        • j. Form: Provisions for Payment of Estate Taxes 25.49
        • k. Form: Income Taxes 25.50
        • l. Form: Certificate of California Franchise Tax Board [Deleted] 25.51
        • m. Personal Property Taxes 25.52
        • n. Form: Personal Property Taxes 25.53
        • o. Form: Names and Residences of Heirs and Beneficiaries 25.54
        • p. Form: Allegation Regarding Prior Distributions 25.55
        • q. Form: Description of Property to Be Distributed 25.56
        • r. Proposed Distribution 25.57
        • s. Form: Proposed Distribution 25.58
        • t. Form: Propriety of Proposed Distribution 25.59
        • u. Form: Compliance With 50-Percent Limitation of Prob C §11623 25.60
        • v. Assignment of Beneficiary's Interest 25.61
        • w. Form: Requirement of Bond for Distributees 25.62
        • x. Form: Allowance on Account of Compensation 25.63
        • y. Form: Request for Order 25.64
    • F. Notice Requirements
      • 1. Petition Under Prob C §11620 25.65
      • 2. Petition Under Prob C §11623 25.66
    • G. Challenging Petition
      • 1. Who May Object
        • a. Interested Persons 25.67
        • b. Personal Representative 25.68
      • 2. Procedural Requirements 25.69
    • H. The Order
      • 1. Required Findings; Entry of Order 25.70
      • 2. Other Provisions to Be Included in the Order 25.71
      • 3. Importance of Following Local Rules of Court 25.72
      • 4. Form: Order Granting Preliminary Distribution
        • a. Form: Caption and Introduction 25.73
        • b. Findings
          • (1) Form: Notice 25.74
          • (2) Form: Petition True 25.75
          • (3) Form: Date of Death and Domicile 25.76
          • (4) Form: Appointment and Qualification of Representative 25.77
          • (5) Form: Authority Under Independent Administration of Estates Act 25.78
          • (6) Form: Passage of Time Since Issuance of Letters 25.79
          • (7) Form: Inventory and Appraisal 25.80
          • (8) Form: Character of Estate Property 25.81
          • (9) Form: Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration 25.82
          • (10) Form: Disposition of Creditors' Claims 25.83
          • (11) Form: Payment of Debts and Expenses 25.84
          • (12) Form: Estate Taxes 25.85
          • (13) Form: Payment of State and Federal Income Taxes 25.86
          • (14) Form: Certificate of California Franchise Tax Board [Deleted] 25.87
          • (15) Form: Personal Property Taxes 25.88
          • (16) Form: Allegation Regarding Financial Status of Estate 25.89
          • (17) Form: Propriety of Distribution 25.90
          • (18) Form: Compliance With 50-Percent Limitation of Prob C §11623 25.91
          • (19) Form: Requirement of Distributee's Bond 25.92
        • c. Form: Order 25.93
    • I. Receipt on Distribution
      • 1. Contents 25.94
      • 2. Form: Receipt of Distributee 25.95
    • J. Recording Order 25.96
    • K. Finality of Order
      • 1. Appeal 25.97
      • 2. Effect of Order When It Becomes Final 25.98
      • 3. Setting Aside an Order; Release of Personal Representative From Claims 25.99

26

Will Contests and the Role of the Estate Planner

Marc L. Sallus

  • I. INTRODUCTION
    • A. Nature of Proceeding 26.1
    • B. Attorneys and Parties 26.2
    • C. Court Policy in Will Contests 26.3
    • D. Tax Consequences 26.4
  • II. LEGAL REQUIREMENTS 26.5
    • A. Standing to Contest 26.6
      • 1. Personal Representative
        • a. Proposed Executor Under Will Offered for Probate 26.7
        • b. Contest of Subsequent Will 26.8
      • 2. Heirs 26.9
      • 3. Beneficiaries Under Prior or Later Will 26.10
      • 4. Estate of Person Interested 26.11
      • 5. Assignment of Right to Contest 26.12
      • 6. Creditors of Heirs 26.13
      • 7. Debtors of Estate 26.14
      • 8. State of California 26.15
      • 9. Public Administrator 26.16
    • B. Limitation on Right to Revoke Probate 26.17
    • C. Methods of Contest; Statute of Limitations 26.18
      • 1. Exception: No Jurisdiction 26.19
      • 2. Exception: Fraud 26.20
      • 3. Exception: Probate of Another Will 26.21
    • D. Advantages of Preprobate Versus Postprobate Contests 26.22
    • E. Grounds for Direct Contest; Burden of Proof 26.23
      • 1. Due Execution 26.24
        • a. Burden of Proof
          • (1) Before Probate 26.25
          • (2) After Will Admitted to Probate 26.26
        • b. Proof of Due Execution 26.27
      • 2. Lack of Testamentary Intent 26.28
      • 3. Testamentary Capacity
        • a. Presumption and Burden of Proof; Due Process in Competence Determinations Act 26.29
        • b. Evidence Regarding Capacity 26.30
      • 4. Undue Influence 26.31
      • 5. Fraud, Menace, or Duress 26.32
      • 6. Mistake 26.33
      • 7. Revocation 26.34
        • a. Presumptions 26.35
        • b. Revocation of Codicil 26.36
        • c. Dependent Relative Revocation 26.37
      • 8. Gifts to "Disqualified Persons"
        • a. Disqualified Persons 26.38
        • b. Effect of Failed Transfer 26.39
        • c. Exceptions to Definition of Disqualified Persons 26.40
        • d. Will Contest or Action Based on Invalidity of Transfer Described in Prob C §21380
          • (1) When Action Not Limited to Invalidity of Transfer to Disqualified Person 26.41
          • (2) Action Limited to Invalidity of Transfer to Disqualified Person 26.42
    • F. No-Contest Clauses 26.43
    • G. Other Remedies
      • 1. Actions Without Contest 26.44
      • 2. Declaratory Relief Actions 26.45
  • III. ECONOMICS OF CONTESTS
    • A. Reality of High Cost 26.46
    • B. Compensation of Attorney
      • 1. General Rule 26.47
      • 2. Compensation of Attorney for Personal Representative 26.48
        • a. Before Probate 26.49
        • b. After Probate 26.50
      • 3. Compensation of Attorney for Beneficiaries 26.51
      • 4. Compensation of Guardian Ad Litem 26.52
    • C. Tax Considerations
      • 1. Importance of Planning Ahead 26.53
      • 2. Deductibility of Attorney Fees and Costs
        • a. Deduction of Contest Expenses by Estate 26.54
        • b. Attorney Fees Incurred by Beneficiaries 26.55
      • 3. Tax Consequences of Settlement 26.56
        • a. Income Taxation of Recoveries 26.57
        • b. Deductibility of Payments and Distributions 26.58
  • IV. COMPROMISE AND SETTLEMENT
    • A. Settlement Agreement 26.59
    • B. Settlement Procedure 26.60
  • V. ROLE OF ESTATE PLANNER IN WILL CONTESTS
    • A. Attorney as Witness 26.61
      • 1. Attorney-Client Privilege
        • a. Scope and Holder of Attorney-Client Privilege 26.62
        • b. Exceptions to Attorney-Client Privilege 26.63
      • 2. Attorney Work Product Privilege 26.64
    • B. Attorney's Role in Administering Estate During Contest 26.65

27

Probate Code §850 Petitions: Title Disputes and Executory Contracts

Richard A. Gorini

  • I. GROUNDS FOR PROB C §850 PETITION
    • A. Title Disputes
      • 1. When Title Can Be Tried in Probate Proceedings 27.1
      • 2. Examples of Title Disputes That Can Be Tried in Probate Proceedings 27.2
    • B. Decedent's Executory Contracts
      • 1. When Decedent's Executory Contracts Can Be Tried in Probate Proceedings 27.3
      • 2. Requirements for Specific Performance 27.4
    • C. Related Claims 27.5
  • II. GENERAL CONSIDERATIONS
    • A. Concurrent Jurisdiction 27.6
    • B. Statute of Limitations 27.7
    • C. Impact of No-Contest Clause 27.8
    • D. No Right to Jury Trial 27.9
    • E. Bad Faith Double Damages 27.9A
  • III. PROCEDURE FOR PROB C §850 PETITION
    • A. Preparing Petition 27.10
      • 1. Who May File Petition 27.11
      • 2. Petitions to Determine Title to Estate Property
        • a. Form: Petition by Personal Representative to Establish Estate's Ownership of Property 27.12
        • b. Form: Petition by Personal Representative to Determine Ownership of Estate Property 27.13
        • c. Form: Petition by Third Party Claimant to Determine Ownership of Estate Property 27.14
      • 3. Petitions for Specific Performance of Executory Contract
        • a. Form: Petition by Personal Representative for Specific Performance of Executory Contract for Sale of Property 27.15
        • b. Form: Petition by Purchaser for Specific Performance of Executory Contract of Sale for Property 27.16
    • B. Obtaining Hearing Date 27.17
    • C. Notice of Hearing 27.18
    • D. Lis Pendens 27.19
    • E. Summary Determination 27.20
    • F. Opposition to Petition 27.21
      • 1. Objections to Hearing Petition
        • a. Venue 27.22
        • b. Abatement 27.23
        • c. Discretionary Dismissal or Abatement 27.24
      • 2. Form: Objections to Personal Representative's Petition to Determine Ownership of Estate Property 27.25
      • 3. Time for Filing Opposition 27.26
    • G. Discovery 27.27
    • H. Statement of Decision 27.28
    • I. Order and Appeal 27.29
      • 1. Form: Order Determining Ownership of Estate Property and Transferring Property to Claimant 27.30
      • 2. Form: Order Establishing Estate's Ownership of Property and Directing Transfer 27.31
      • 3. Form: Order for Specific Performance and Directing Conveyance of Property 27.32

28

Proceedings to Determine Entitlement to Estate Distribution

Charles P. Wolff

  • I. OVERVIEW 28.1
  • II. APPLICABILITY OF PROB C §11700 PROCEEDING
    • A. Broad Scope of Statute 28.2
    • B. Examples of Use of Prob C §11700 Proceedings 28.3
    • C. Limits on Use of Procedure 28.4
  • III. PETITION UNDER PROB C §11700
    • A. Who May Petition 28.5
      • 1. Personal Representative 28.6
      • 2. Beneficiaries or Persons Otherwise Entitled to Distribution 28.7
      • 3. Persons Who Do Not Have Standing to Petition 28.8
    • B. Time for Filing 28.9
    • C. Local Rules 28.10
    • D. Petitioner: File Petition and Obtain Hearing Date
      • 1. Content of Petition 28.11
      • 2. Form: Petition for Determination of Entitlement to Estate Distribution 28.12
      • 3. Assignment of Hearing Date 28.13
      • 4. Service of Notice 28.14
    • E. Respondent: File Statement of Interest in Estate
      • 1. Who May File 28.15
      • 2. Practical Considerations 28.16
      • 3. Contents of Statement of Interest 28.17
      • 4. Form: Statement of Interest 28.18
    • F. Hearing: Overview 28.19
      • 1. When to Seek Evidentiary Hearing: Strategic Considerations 28.20
      • 2. Evidence: Rules of Civil Procedure Apply 28.21
  • IV. PROVING CLAIMS UNDER PROB C §11700 28.22
    • A. Litigating Entitlement Claim Based on Will 28.23
      • 1. Testator's Words Versus Testator's Intent 28.24
      • 2. Statutory Rules of Construction of Language in Instrument 28.25
        • a. Relatives of the Half Blood and Adoptees 28.26
        • b. Exoneration; Ademption 28.27
      • 3. Some Applicable Rules of Evidence 28.28
      • 4. Proceedings in Absence of Extrinsic Evidence 28.29
      • 5. Extrinsic Evidence
        • a. Introduction of Extrinsic Evidence 28.30
        • b. Issues on Which Extrinsic Evidence Has Been Admitted 28.31
    • B. Litigating Entitlement Claim Not Based on Will 28.32
      • 1. Intestacy Rights of Heirs of Predeceased Spouse or Registered Domestic Partner 28.33
      • 2. Intestacy Rights of Omitted Spouse, Registered Domestic Partner, or Child 28.34
      • 3. Intestacy Rights of Remote Relatives 28.34A
      • 4. Proof of Issues
        • a. Issues Involving Relationship to Decedent or Predeceased Spouse or Registered Domestic Partner
          • (1) Spouse or Registered Domestic Partner 28.35
          • (2) Putative Spouse
            • (a) Extent of Rights 28.36
            • (b) Issues of Proof 28.37
          • (3) Effect of Annulment, Dissolution, Separation, or Termination of Domestic Partnership 28.38
          • (4) Child 28.39
            • (a) Maternity 28.40
            • (b) Paternity 28.41
            • (c) Posthumous Conception 28.42
          • (5) Adoptee 28.43
        • b. Issues Involving Characterization of Property at Issue 28.44
  • V. ORDER DETERMINING ENTITLEMENT
    • A. Order 28.45
    • B. Effect of Order 28.46
    • C. Form: Order Determining Entitlement to Estate Distribution 28.47
  • VI. ATTORNEY FEES AND COSTS 28.48
  • VII. CHALLENGING ORDER
    • A. Appeal 28.49
    • B. Relief Based on Mistake, Inadvertence, Surprise, or Excusable Neglect 28.50
    • C. Relief Based on Extrinsic Fraud 28.51

29

Actions By and Against Personal Representative

Mary F. Gillick

Leonard W. Pollard II

  • I. GENERAL PRINCIPLES
    • A. Estate Cannot Sue or Be Sued 29.1
    • B. Personal Representative as Plaintiff or Defendant 29.2
      • 1. Conflicts of Interest 29.3
      • 2. Duty of Impartiality 29.4
    • C. Survival of Actions By or Against Estate 29.5
    • D. Prior Court Approval to Engage in Litigation 29.6
      • 1. Protection Against Hindsight Complaints 29.7
      • 2. Payment of Attorney Fees and Costs on Current Basis 29.8
    • E. Evidentiary Issues
      • 1. Discovery 29.9
        • a. Discovery Involving Predecessor Fiduciary—Confidential Attorney-Client Communications 29.10
        • b. Attorney Work Product Protection Regarding Predecessor Cofiduciary 29.11
      • 2. Hearsay Rules and Exceptions 29.12
        • a. State of Mind
          • (1) Then-Existing State of Mind (Evid C §1250) 29.13
          • (2) Previously Existing State of Mind (Evid C §1251) 29.14
        • b. No Attorney-Client Privilege (Evid C §§957, 960—961) 29.15
        • c. Decedent's Declarations Concerning Will (Evid C §1260) 29.16
        • d. Decedent's Statements in Action Against Estate (Evid C §1261) 29.17
        • e. Evidence of Family History
          • (1) Decedent's Statement Concerning Own Family History (Evid C §1310) 29.18
          • (2) Decedent's Statement Concerning Family History of Another (Evid C §1311) 29.19
          • (3) Entries in Family Bible, Church Records, Marriage, Baptismal, and Similar Certificates (Evid C §§1312, 1315—1316) 29.20
          • (4) Reputation Concerning Family History (Evid C §§1313—1314) 29.21
        • f. Other Exceptions to Hearsay Rule 29.22
    • F. Settlement
      • 1. Obtaining Court Approval 29.23
      • 2. Statutory Enforcement of Settlement 29.24
    • G. Attorney Fees
      • 1. Attorney for Personal Representative 29.25
      • 2. When Beneficiaries Fund Litigation 29.26
    • H. Appeal 29.27
  • II. ACTIONS BY PERSONAL REPRESENTATIVE
    • A. Survival of Actions 29.28
    • B. Standing to Pursue Claim
      • 1. Personal Representative 29.29
      • 2. When Successor in Interest May Commence Action 29.30
      • 3. Successor Personal Representative May Sue Predecessor's Agents 29.31
    • C. Damages
      • 1. Decedent's Damages in Survival Action 29.32
      • 2. Limitation on Damages 29.33
    • D. Statutes of Limitation 29.34
    • E. Venue
      • 1. Venue in Suits by Personal Representative 29.35
      • 2. Foreign Personal Representatives 29.36
    • F. Specific Actions
      • 1. Wrongful Death Actions 29.37
        • a. Persons With Standing 29.38
          • (1) Personal Representative 29.39
          • (2) Putative Spouse 29.40
          • (3) Domestic Partner 29.41
          • (4) Child 29.42
            • (a) Child Born Out of Wedlock 29.43
            • (b) Child of Parent Whose Rights Were Terminated 29.44
          • (5) Parent 29.45
        • b. Persons Without Standing
          • (1) Decedent's Killer 29.46
          • (2) Decedent's Abuser 29.47
        • c. Joinder of Claims and Claimants 29.48
          • (1) Bringing "Single Joint Indivisible Action" 29.49
          • (2) Sharing in Judgment or Settlement 29.50
        • d. Statute of Limitations 29.51
          • (1) Wrongful Death Actions 29.52
          • (2) Actions Against Defendant Based on Commission of Felony for Which He or She Was Convicted 29.53
          • (3) Actions for Wrongful Death Based on Medical Malpractice 29.54
        • e. Distinction Between Wrongful Death Action and Survival Action 29.55
          • (1) Recovering Survivor's Damages 29.56
        • f. Death of Minor 29.57
      • 2. Marital and Domestic Partnership Proceedings
        • a. Same-Sex Marriage 29.57A
        • b. Proceedings Court May Retain Jurisdiction Over 29.58
        • c. Recovery of Community Property Expenditures on Separate Real Property 29.59
    • G. Commencing or Continuing Action 29.60
      • 1. Form: Complaint in Action by Representative or Successor in Interest 29.61
      • 2. Form: Declaration by Successor in Interest 29.62
  • III. CLAIMS OF THIRD PARTIES AGAINST DECEDENT
    • A. Survival of Actions Against Decedent 29.63
    • B. Time Limitations
      • 1. One-Year Limitation Period (CCP §366.2) 29.64
        • a. Tolling of Statute 29.65
        • b. Equitable Estoppel 29.66
        • c. Actions Against Decedent Covered by Liability Insurance 29.67
      • 2. Claims Based on Decedent's Promise to Make Postdeath Gift (CCP §366.3) 29.68
    • C. Conditions Precedent to Suit
      • 1. Creditor's Claim 29.69
      • 2. Substituting Personal Representative as Defendant in Pending Action 29.70
      • 3. Form: Notice of Motion and Motion for Order Substituting Personal Representative as Defendant and for Leave to File Supplemental Complaint 29.71
    • D. Filing Action on Rejected Claim
      • 1. Period for Filing Action on Rejected Claim 29.72
      • 2. Pleadings in Action Against Estate 29.73
    • E. Venue in Suits Against Personal Representative 29.74
    • F. Notice of Pendency of Action 29.75
    • G. Decedent's Promise to Will Property 29.76
      • 1. Statute of Frauds 29.77
        • a. Contracts Made After December 31, 1984, and Before January 1, 2000 29.78
        • b. Contracts Made Before January 1, 1985 29.79
      • 2. Enforcement by Third Party Beneficiaries 29.80
      • 3. Action at Law Versus Action in Equity 29.81
        • a. Action in Equity 29.82
          • (1) Cases in Which Monetary Compensation Is Inadequate 29.83
          • (2) Cases in Which Monetary Compensation Is Adequate 29.84
        • b. Personal Service Contracts: Action in Quantum Meruit 29.85
      • 4. Effect of Equitable Action on Probate Proceedings 29.86
    • H. Judgment in Action at Law Against Estate Representative 29.87
    • I. Collection of Judgments Against Decedent 29.87A
  • IV. ACTIONS AND PROCEEDINGS AGAINST PERSONAL REPRESENTATIVE
    • A. Representative's Personal Liability
      • 1. Representative as Fiduciary 29.88
        • a. Fiduciary Duty to Beneficiaries 29.89
        • b. Duty of Professional Fiduciary 29.90
      • 2. Extrinsic Fraud by Fiduciary 29.91
      • 3. Corepresentatives' Liability 29.92
      • 4. Liability for Self-Dealing 29.93
      • 5. Liability for Nonpayment of Creditors' Claims and Failure to Distribute Estate According to Decree 29.94
      • 6. Tax Liability 29.95
        • a. Federal Taxes
          • (1) Duty to File Return 29.96
          • (2) Liability for Payment of Taxes 29.97
        • b. California Taxes 29.98
      • 7. Environmental Liability 29.99
        • a. Safe Harbors for Fiduciaries 29.100
        • b. Protecting Personal Representative 29.101
      • 8. Contract Liability; Enforceability of Personal Representative's Promise Personally to Pay 29.102
      • 9. Personal Representative's Tort Liability 29.103
      • 10. Personal Liability for Attorney Fees 29.104
    • B. Compelling Account
      • 1. Representative's Duty to Account 29.105
      • 2. Court-Ordered Account 29.106
      • 3. Waiver of Account 29.107
      • 4. Procedure to Compel Account 29.108
        • a. Form: Petition for Order Compelling Personal Representative or Other Named Person to Account 29.109
        • b. Form: Order Compelling Personal Representative or Other Named Person to Account 29.110
      • 5. Remedies if Personal Representative Fails to Comply With Order Compelling Personal Representative to Account 29.111
        • a. Form: Petition for Issuance of Citation Requiring Personal Representative to Appear and Show Cause Why He or She Should Not Be Punished for Contempt 29.112
        • b. Form: Citation—Probate (Judicial Council Form DE-122/GC-322) 29.113
        • c. Failure to Appear and Account 29.114
      • 6. Objections to Account
        • a. Standing to Object 29.115
        • b. Scope of Hearing 29.116
        • c. Evidence 29.117
    • C. Surcharge of Personal Representative
      • 1. Breach of Fiduciary Duty 29.118
      • 2. Actions That Are Not Breach of Fiduciary Duty 29.119
      • 3. Measure of Liability for Breach of Fiduciary Duty
        • a. Compensatory Damages 29.120
        • b. Interest 29.120A
        • c. Punitive Damages 29.121
      • 4. Court Review and Limitations on Res Judicata 29.122
      • 5. Surcharge Procedure
        • a. Who May Object 29.123
        • b. Content and Format of Objections 29.124
        • c. Form: Objections to Account and Request for Surcharge of Personal Representative and Other Remedies 29.125
    • D. Removal of Personal Representative
      • 1. Statutory Grounds for Removal 29.126
      • 2. Discretionary Removal Power 29.127
      • 3. Procedure for Removal 29.128
      • 4. Suspension of Personal Representative's Powers 29.129
        • a. Form: Petition for Removal of Representative 29.130
        • b. Form: Order for Issuance of Citation 29.131
        • c. Form: Order Removing Representative 29.132
    • E. Attorney Fee Shifting
      • 1. Fees Incurred by Fiduciary 29.133
      • 2. Fees Incurred by Contestant 29.134
    • F. Appeal 29.135
    • G. Requiring Further Bond
      • 1. Grounds for Requiring Further Bond 29.136
      • 2. Procedure for Requiring Further Bond
        • a. Form: Notice of Motion Objecting to Bond 29.137
        • b. Notice of Hearing on Bond 29.138
        • c. Form: Order Requiring Further Bond 29.139
        • d. Action Against Bond 29.140

30

Compensation and Fees

Cynthia V. Roehl

  • I. AWARD OF COMPENSATION IN PROBATE ESTATES 30.1
    • A. Retainer Agreement Between Personal Representative and Attorney 30.2
      • 1. Written Agreement Not Required 30.3
      • 2. Form: Retainer Agreement Between Personal Representative and Attorney 30.4
    • B. Fees for Out-of-State Personal Representatives and Attorneys 30.5
    • C. Priority of Compensation 30.6
  • II. SPECIAL SITUATIONS
    • A. Compensation Provision in Will 30.7
      • 1. Form: Petition by Personal Representative for Relief From Will Provision for Compensation 30.8
      • 2. Notice of Hearing on Petition 30.9
      • 3. Form: Order Granting Relief From Will Provision for Compensation of Personal Representative 30.10
    • B. Waiver of Representative's Compensation 30.11
      • 1. Tax Considerations 30.12
      • 2. Factors Other Than Tax Considerations 30.13
      • 3. When to File Waiver 30.14
      • 4. Form: Waiver of Compensation as Representative 30.15
    • C. Compensation Agreements
      • 1. Contract for Higher or Lower Compensation 30.16
      • 2. Compensation to Attorney for Extraordinary Services
        • a. Contingent Fee Basis 30.17
        • b. Form: Petition for Authority to Enter Into Contingent Fee Agreement 30.18
        • c. Notice 30.19
        • d. Form: Order Authorizing Contingent Fee Agreement 30.20
      • 3. Compensation to Attorney for Extraordinary Services on Hourly Fee Basis 30.21
    • D. Separate Counsel for Representative in Order to Protect Attorney-Client Privilege 30.22
    • E. Agreement for Attorney to Perform Some Duties of Personal Representative
      • 1. Allowed by Some Counties 30.23
      • 2. Form: Sample Agreement on Performance of and Compensation for Duties of Representative 30.24
    • F. Dual Roles as Representative and Attorney 30.25
      • 1. Form: Petition for Prior Approval of Dual Compensation for Services as Personal Representative and Attorney for Personal Representative 30.26
      • 2. Notice 30.27
      • 3. Form: Order Approving Right to Compensation as Personal Representative and for Services as Attorney for Personal Representative 30.28
    • G. When Representative Is Partner or Shareholder in Law Firm
      • 1. When Firm Can Receive Fees 30.29
      • 2. Form: Agreement Not to Participate in Fees Received by Attorneys for Personal Representative 30.30
    • H. Guardian Ad Litem Fees 30.31
  • III. NATURE AND AMOUNT OF COMPENSATION
    • A. Statutory Scheme of Fees for Personal Representative and Attorney 30.32
    • B. Ordinary Compensation
      • 1. Services Included 30.33
      • 2. Checklist: "Ordinary" Attorney Services 30.34
      • 3. Rate in Effect at Time of Order 30.35
      • 4. Computing Amount of Estate Accounted For
        • a. Estate Accounted For 30.36
        • b. Method of Computation 30.37
        • c. Property or Values Not Included 30.38
      • 5. One Fee Per Estate 30.39
    • C. Compensation for Extraordinary Services
      • 1. What Constitutes Extraordinary Services 30.40
        • a. Personal Representative Services 30.41
        • b. Attorney and Paralegal Services
          • (1) Examples of Specific Statutory Authority for Extraordinary Compensation 30.42
          • (2) Nonexclusive List of Attorney Services in Cal Rules of Ct 7.703(c) 30.43
          • (3) Extraordinary Services by Paralegals 30.44
        • c. Operating Decedent's Business 30.45
        • d. Employment of Tax Experts 30.46
      • 2. Determining Value of Services 30.47
      • 3. Required Statement of Facts When Requesting Extraordinary Compensation 30.48
    • D. Reduction of Compensation
      • 1. Reduction Based on Delay 30.49
      • 2. Reduction for Other Reasons 30.50
    • E. Some Special Situations
      • 1. Attorney Fees for Family Allowance Petitions 30.51
      • 2. Attorney Fees in Contest of Personal Representative's Accounting 30.52
      • 3. Fees Requested for Petition to Determine Persons Entitled to Distribution Under Prob C §11700 30.52A
  • IV. PETITION FOR ORDER FOR COMPENSATION
    • A. Procedure for Claiming Allowance
      • 1. Necessity for Petition and Order 30.53
      • 2. Payment Without Court Order 30.54
      • 3. Local Requirements 30.55
    • B. Petition for Allowance on Account
      • 1. Timing of Compensation Request 30.56
      • 2. Payment of Ordinary Compensation on Account 30.57
      • 3. Payment of Extraordinary Compensation Before Final Distribution 30.58
      • 4. Division of Fees in Estates Involving Successor Personal Representatives and Successor Counsel 30.59
      • 5. Contents of Petition 30.60
      • 6. Form: Petition for Allowance of Compensation 30.61
      • 7. Form: Sample Declaration in Support of Request for Fees for Extraordinary Legal Services 30.62
      • 8. Notice 30.63
      • 9. Form: Order for Allowance of Ordinary Compensation to Personal Representative and Ordinary and Extraordinary Fees to Attorney 30.64
  • V. ACTIONS AFTER ORDER
    • A. Appeal From Compensation and Expense Orders 30.65
    • B. Representative's Refusal to Pay Attorney 30.66
    • C. Request for Compensation in Estates Lacking Cash for Payment 30.67
    • D. Garnishment of Compensation and Set-Off 30.68
    • E. Interest on Deferred Payment 30.69

31

Account, Report, and Petition for Final Distribution

Anne Bruner Nash

  • I. INTRODUCTION
    • A. Function of Account, Report, and Petition for Final Distribution 31.1
    • B. Review Status of Administration 31.2
    • C. Review of State and Local Probate Rules 31.3
    • D. Time for Filing Petition for Final Distribution or Status Report 31.4
    • E. Personal Representative May Be Compelled to Petition for Final Distribution 31.4A
    • F. Who May File 31.5
  • II. STATUS REPORT
    • A. Required Contents 31.6
    • B. Notice and Hearing 31.7
    • C. Petition to Compel Personal Representative [Deleted] 31.8
  • III. ACCOUNT, REPORT, AND PETITION: OVERVIEW
    • A. Information Always Included 31.9
    • B. Additional Information if Petition Includes Account 31.10
    • C. Additional Information if Account Is Waived [Deleted] 31.11
    • D. Waiver of Account 31.12
      • 1. Who May Execute Waiver or Acknowledgment 31.13
      • 2. File Waiver as Separate Document or Include in Petition 31.14
      • 3. Form: Waiver of Account by Distributee 31.15
      • 4. Additional Information May Be Required if Account Is Waived 31.15A
  • IV. PREPARATION OF ACCOUNT, REPORT, AND PETITION FOR FINAL DISTRIBUTION
    • A. Title and Introductory Paragraph 31.16
      • 1. Form: Caption and Introduction 31.17
      • 2. Form: Date of Death and Domicile; Ancillary Administration 31.18
      • 3. Form: Appointment of Executor or Administrator; Authority Under Independent Administration of Estates Act 31.19
    • B. Form: Petition to Administer Estate Published 31.20
    • C. Notice to Public Entities
      • 1. To Whom Notice Must Be Given 31.21
      • 2. Form: Notice to Public Entities 31.22
    • D. Special Notice
      • 1. Notice Must Be Given 31.23
      • 2. Form: Special Notice 31.23A
    • E. Form: Inventory and Appraisal 31.24
    • F. Character of Estate Property
      • 1. Allegation Regarding Character of Estate Property 31.25
      • 2. Form: Character of Estate Property 31.26
    • G. Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration
      • 1. Election 31.27
      • 2. Form: Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration 31.28
    • H. Summary of Account or Waiver of Account
      • 1. Summary of Account 31.29
      • 2. Form: Summary of Account 31.30
      • 3. Waiver of Account in Place of Summary of Account 31.31
      • 4. Form: Allegations of Waiver of Account 31.32
    • I. Allegations Pertaining to Account Information
      • 1. Requirements of Prob C §1064 31.33
      • 2. Prob C §1064 Allegations
        • a. Form: Transactions During Account Period 31.34
        • b. Form: Unusual Expenditures 31.35
        • c. Form: Compensation Paid During Account Period 31.36
        • d. Form: Family or Affiliate Relationship 31.37
        • e. Form: Investment of Cash 31.38
        • f. Form: Sale of Assets 31.39
        • g. Form: Purchase, Exchange, or Change in Form of Assets 31.40
    • J. Independent Administration of Estates Act
      • 1. Report of Actions Under Independent Administration of Estates Act 31.41
      • 2. Form: Actions Taken Under Independent Administration of Estates Act 31.42
    • K. Creditors' Claims 31.43
      • 1. Notice to Creditors 31.44
      • 2. Debts Paid Without Creditors' Claims 31.45
      • 3. Form: Debts Paid Without Creditors' Claims 31.46
      • 4. Reporting Creditors' Claims 31.47
      • 5. Form: Creditors' Claims 31.48
    • L. Allocation of Debts Between Estate and Surviving Spouse
      • 1. Allocations of Debts by Court 31.48A
      • 2. Form: Allocation of Debts 31.48B
    • M. Estate Taxes
      • 1. Reporting Estate Taxes 31.49
      • 2. Form: Estate Taxes 31.50
    • N. Income Taxes
      • 1. Allegation Regarding Income Taxes 31.51
      • 2. Form: Income Taxes 31.52
      • 3. Franchise Tax Board Certificate Requirement Eliminated 31.53
      • 4. Form: Certificate of California Franchise Tax Board [Deleted] 31.54
    • O. Personal Property Taxes
      • 1. Allegation Regarding Personal Property Taxes 31.55
      • 2. Form: Personal Property Taxes 31.56
    • P. Compensation of Personal Representative and Attorney 31.57
      • 1. Allowance or Waiver of Statutory Compensation 31.58
      • 2. Form: Allowance or Waiver of Statutory Compensation 31.59
      • 3. Compensation for Extraordinary Services
        • a. Allegations Regarding Compensation for Extraordinary Services 31.60
        • b. Form: Request for Compensation for Extraordinary Services 31.61
    • Q. Distribution of Estate
      • 1. Status of Estate
        • a. Allegation Regarding Status of Estate and Property on Hand for Distribution 31.62
        • b. Form: Status of Estate 31.63
      • 2. Assets on Hand
        • a. Description of Property to Be Distributed (Cal Rules of Ct 7.651) 31.64
        • b. Form: Assets on Hand 31.65
      • 3. Reserve for Closing Expenses
        • a. Allegation Regarding Reserve for Closing Expenses 31.66
        • b. Form: Reserve for Closing Expenses 31.67
      • 4. Names and Residences of Heirs and Beneficiaries
        • a. Allegation Regarding Names and Residences of Heirs and Beneficiaries 31.68
        • b. Form: Names and Residences of Heirs and Beneficiaries 31.69
      • 5. Proposed Distribution 31.70
        • a. Testate; Intestate Estate 31.71
        • b. Nonprorata Distribution 31.72
        • c. Income 31.73
        • d. If Option Extends Beyond Administration of Estate 31.74
        • e. Allegation Regarding Disclaimers 31.75
        • f. Form: Proposed Distribution 31.76
        • g. Distribution to Another Person 31.77
        • h. Distribution to Trustee of Testamentary Trust
          • (1) Requirements for Distribution to Trustee 31.78
          • (2) Form: Distribution to Trustee of Testamentary Trust 31.79
        • i. Whereabouts of Distributee Unknown
          • (1) Handling Share of Unknown Distributee 31.80
          • (2) Form: Whereabouts of Distributee Unknown 31.81
        • j. Minor, Incapacitated, or Deceased Distributees
          • (1) Gift to Minor or Incapacitated Beneficiary 31.82
          • (2) Gift to Minor Distributee
            • (a) Gift to Minor Not Exceeding $5000
              • (i) Form: Gift to Minor Not Exceeding $5000 31.83
              • (ii) Form: Written Assurance of Parent 31.83A
            • (b) Form: Gift to Custodian for Minor 31.84
            • (c) Form: Gift to Minor Exceeding $5000 31.85
          • (3) Gift to Predeceased Beneficiary 31.86
          • (4) Form: Gift to Predeceased Beneficiary 31.87
          • (5) If Distributee Dies Before Distribution 31.88
        • k. Other Distribution Issues
          • (1) Abatement 31.88A
          • (2) Form: Abatement 31.88B
          • (3) Chart: General Gifts to Nonrelatives to Be Abated 31.88C
          • (4) Ademption by Extinction 31.88D
          • (5) Form: Ademption by Extinction 31.88E
        • l. Proration of Estate Taxes
          • (1) Allegation Regarding Proration of Estate Taxes 31.89
          • (2) Form: Proration of Estate Taxes 31.90
        • m. After-Discovered Assets
          • (1) Distribution of After-Discovered Assets 31.91
          • (2) Form: Omnibus Clause 31.92
    • R. Form: Request for Orders 31.93
    • S. Joinder in Request for Compensation
      • 1. Joinder by Attorney in Request for Compensation for Extraordinary Services [Deleted] 31.94
      • 2. Form: Joinder by Attorney in Request for Compensation for Extraordinary Services [Deleted] 31.95
    • T. Checklist: Final Review 31.96
  • V. NOTICE AND HEARING
    • A. Obtaining a Hearing Date 31.97
    • B. Notice 31.98
      • 1. Giving Notice to Ward, Conservatee, Minor, Trust Beneficiary, or Person Whose Address Is Unknown 31.99
      • 2. Proof of Service 31.100
    • C. Hearing 31.101
    • D. Objections 31.102
  • VI. ORDER SETTLING FINAL ACCOUNT AND FOR FINAL DISTRIBUTION
    • A. Matters Covered in Order
      • 1. Matters Required 31.103
      • 2. Matters Recommended 31.104
    • B. Preparing Order 31.105
    • C. Submitting Order 31.106
    • D. Order Settling Final Account and for Final Distribution: Long Form
      • 1. Form: Caption and Introductory Paragraph 31.107
      • 2. Findings
        • a. Compliance With Notice Requirements
          • (1) Finding Regarding Notice 31.108
          • (2) Form: Compliance With Notice Requirements 31.109
        • b. Account and Petition True
          • (1) Finding Regarding Truth of Allegations 31.110
          • (2) Form: Account and Petition True 31.111
        • c. Date of Death and Domicile; Ancillary Administration
          • (1) Reciting Date of Death 31.112
          • (2) Form: Date of Death and Domicile; Ancillary Administration 31.113
        • d. Form: Appointment and Qualification of Representative 31.114
        • e. Form: Authority Under Independent Administration of Estates Act 31.115
        • f. Form: Estate in Condition to Be Closed; Waiver of Account 31.116
        • g. Form: Character of Estate Property 31.117
        • h. Form: Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration 31.118
        • i. Form: Disposition of Claims 31.119
        • j. Form: Payment of Debts and Expenses 31.120
        • k. Form: Estate Tax 31.121
        • l. Form: Payment of State and Federal Income Taxes 31.122
        • m. Form: Payment of Personal Property Taxes 31.123
        • n. Form: Closing Expenses and Distribution of Reserve 31.124
        • o. Form: Proposed Distribution 31.125
        • p. Compensation Allowed
          • (1) Finding Regarding Compensation 31.126
          • (2) Form: Compensation Allowed 31.127
      • 3. Order
        • a. Form: Administration of Estate Closed With/Without Waiver of Account 31.128
        • b. Account Settled
          • (1) Provision Settling Account 31.129
          • (2) Form: Account Settled 31.130
        • c. Personal Representative's Acts Approved
          • (1) Provision Approving Personal Representative's Acts 31.131
          • (2) Form: Personal Representative's Acts Approved 31.132
        • d. Form: Personal Representative's Compensation 31.133
        • e. Form: Attorney's Compensation 31.134
        • f. Form: Closing Expenses 31.135
        • g. Form: Testamentary Trustee to Pay Tax Deficiencies 31.136
        • h. Form: Surviving Spouse or Domestic Partner's Community and Quasi-Community Property Administered in Proceeding 31.137
        • i. Distribution Plan
          • (1) Provision Detailing Distribution Plan 31.138
          • (2) Form: Distribution Plan (Testate/Intestate) 31.139
        • j. Form: Distributee's Whereabouts Unknown 31.140
        • k. Form: Distributee Is Minor 31.141
        • l. Form: Distribution to Trustee 31.142
        • m. Omnibus Clause
          • (1) Purpose of Omnibus Clause 31.143
          • (2) Form: Omnibus Clause 31.144
        • n. Judge's Signature
          • (1) Placement of Signature 31.145
          • (2) Form: Judge's Signature 31.146
    • E. Short Order Form
      • 1. Use of Short Form 31.147
      • 2. Form: Short Order Form 31.148
    • F. Receipts on Distribution
      • 1. Contents 31.149
      • 2. Form: Receipt of Distributee 31.150
    • G. Recording Order 31.151
    • H. Finality of Order
      • 1. Appeal 31.152
      • 2. Effect of Order When It Becomes Final 31.153
    • I. Closing Statement to Distributees 31.154
    • J. Final Discharge 31.155

32

Transfer of Assets and Discharge of Representative

Patrick Z. Riley

Mary M. Rudser

  • I. INTRODUCTION 32.1
  • II. TRANSFER OF ASSETS
    • A. Real Property 32.2
      • 1. Transfer by Recordation of Order of Distribution 32.3
      • 2. Transfer by Executor's or Administrator's Deed 32.4
      • 3. Form: Deed 32.5
      • 4. Recording Distribution Order or Deed 32.6
        • a. Documents for Recorder's Office 32.7
        • b. Requirements for Recorded Court Order or Deed
          • (1) Required Information 32.8
          • (2) Required Format 32.9
        • c. Form: Cover Sheet for Order of Distribution 32.10
        • d. Preliminary Change of Ownership Report 32.11
          • (1) Obtaining PCOR Form 32.12
          • (2) Completing PCOR 32.13
          • (3) Form: Preliminary Change of Ownership Report (BOE-502-A) 32.14
        • e. Escape Tax 32.15
        • f. Parent-Child or Grandparent-Grandchild Exclusions
          • (1) Parent-Child Exclusion 32.16
          • (2) Grandparent-Grandchild Exclusion 32.17
          • (3) Time Requirements for Filing 32.18
          • (4) Form: Claim for Reassessment Exclusion for Transfer Between Parent and Child (BOE-58-AH) 32.19
          • (5) Form: Claim for Reassessment Exclusion for Transfer From Grandparent to Grandchild (BOE-58-G) 32.20
      • 5. Title Insurance Issues 32.21
    • B. Cash 32.22
    • C. Vehicles, Vessels, Mobilehomes, and Other State-Registered Property 32.23
      • 1. Transferring Title to Vehicles and Vessels
        • a. Those Handled by DMV 32.24
        • b. Methods of Transferring Title Through DMV 32.25
      • 2. Transferring Mobilehomes 32.26
    • D. Other Tangible Personal Property 32.27
    • E. Securities 32.28
      • 1. Transferring Securities Held in Brokerage Accounts 32.29
      • 2. Transferring Shares Held by Issuing Company in Book Entry Form 32.30
      • 3. Transferring Securities Held in Certificate Form
        • a. Original Certificates
          • (1) Determining Who Will Handle Transfer 32.31
          • (2) Locating Transfer Agents 32.32
          • (3) Requirements for Transferring Securities 32.33
            • (a) Proof of Appointment as Personal Representative 32.34
            • (b) Affidavit of Domicile 32.35
            • (c) Form: Affidavit of Domicile 32.36
            • (d) Stock Power 32.37
              • (i) Medallion Signature Guaranty 32.38
              • (ii) Form: Assignment Separate From Certificate 32.39
            • (e) Letter of Instruction to Accompany Certificates
              • (i) Contents of Letter 32.40
              • (ii) Form: Sample Letter of Instructions to Accompany Certificates 32.41
          • (4) Sending Documents 32.42
        • b. Lost Certificates 32.43
          • (1) Required Showing for New Certificate 32.44
          • (2) Required Surety Bond 32.45
        • c. Certificates Held by Decedent as Tenant in Common 32.46
      • 4. Securities Held in Another's Name 32.47
      • 5. Stock Splits 32.48
        • a. If Split Occurs Before Petition for Final Distribution 32.49
        • b. If Split Occurs After Final Distribution Order 32.50
    • F. Bonds and Other Debt Instruments
      • 1. Transferring United States Government Savings Bonds and Debt Instruments Held in Treasury Direct Accounts
        • a. Transfer Directly to the Distributee 32.51
        • b. Reissue in the Representative's Name, Then Transfer to Distributee 32.52
      • 2. Transferring Corporate or Municipal Bonds 32.53
    • G. Business Interests
      • 1. Transferring Closely Held Entities
        • a. Corporations
          • (1) Review Documents for Restrictions on Transfers 32.54
          • (2) Shareholders' Agreement 32.55
        • b. Professional Corporations 32.56
      • 2. Transferring Partnership Interests 32.57
      • 3. Transferring Limited Liability Company (LLC) Interests 32.58
      • 4. Form: Assignment of Partnership or LLC Interest 32.59
      • 5. Transferring Sole Proprietorship Interests
        • a. In General 32.60
        • b. Law Practice 32.61
    • H. Promissory Notes and Deeds of Trust
      • 1. Transfer of Unsecured Note by Assignment 32.62
      • 2. Form: Assignment of Promissory Note 32.63
      • 3. Note Secured by Deed of Trust 32.64
    • I. Intellectual Property
      • 1. Transferring Copyrights
        • a. Accomplishing Transfer 32.65
        • b. Recording Transfer 32.66
        • c. Form: Assignment (Transfer) of Copyright 32.67
        • d. Form: Letter to Copyright Office 32.68
      • 2. Transferring Patents and Trademarks
        • a. Accomplishing Transfer 32.69
        • b. Recording Transfer 32.70
        • c. Form: Assignment (Transfer) of Patent 32.71
        • d. Form: Assignment (Transfer) of Trademark 32.72
      • 3. Transferring Royalties 32.73
    • J. Rights in Litigation 32.74
    • K. Form: Assignment of Judgment 32.74A
  • III. RECEIPT ON DISTRIBUTION AND DISCHARGE OF REPRESENTATIVE
    • A. Receipt on Distribution
      • 1. When Distribution Can Be Made
        • a. Obtain Receipts 32.75
        • b. File Receipts 32.76
        • c. Form: Receipt on Distribution 32.77
      • 2. Deposit With County Treasurer
        • a. When Deposit With County Treasurer Authorized 32.78
        • b. Claiming Property Deposited in County Treasury 32.78A
      • 3. Distribution to the State 32.79
      • 4. Procedure When Distributee Dies Before Distribution 32.80
    • B. Discharge of Personal Representative 32.81
      • 1. Notice to Surety 32.82
      • 2. Notice to Tax Authorities 32.82A
      • 3. Form: Ex Parte Petition for Final Discharge and Order (Judicial Council Form DE-295) 32.83
    • C. After-Discovered Assets 32.84

33

Income Tax Concepts and Procedures

Ann C. Harris

Sandy Kasten

  • I. INTRODUCTION 33.1
  • II. PERSONAL REPRESENTATIVE'S RESPONSIBILITIES AND LIABILITIES
    • A. Required Notice to Tax Authorities
      • 1. Notice of Fiduciary Relationship—IRS Form 56 33.2
      • 2. Notice of Probate 33.2A
    • B. Personal Liability of Fiduciary
      • 1. In General 33.3
      • 2. Discharge From Personal Liability 33.4
      • 3. Statute of Limitations
        • a. For Assessment of Personal and Fiduciary Income Tax 33.5
        • b. For Personal Liability of Personal Representative 33.6
      • 4. Request for Prompt Assessment 33.7
  • III. DECEDENT'S PERSONAL INCOME TAX RETURNS
    • A. Responsibility for Filing 33.8
    • B. Tax Returns for Years Before Year of Death 33.9
    • C. Decedent's Final Income Tax Return
      • 1. Filing Requirements and Filing Status
        • a. Filing Status 33.10
        • b. Person Responsible for Filing 33.10A
        • c. IRS Service Center for Filing Final Return 33.10B
      • 2. Specific Issues Regarding Joint Returns
        • a. Determination of Marital Status 33.11
        • b. Who May Sign Return on Decedent's Behalf 33.12
        • c. Liability for and Deductibility of Taxes 33.13
        • d. Innocent Spouse Relief From Liability 33.14
        • e. Practical Considerations in Deciding Whether to File Joint Return 33.15
        • f. Consequences of Appointment of Personal Representative After Joint Return Filed 33.16
      • 3. Due Date and Extensions 33.17
      • 4. Interest and Penalties
        • a. Interest 33.18
        • b. Penalty for Late Filing 33.19
        • c. Penalty for Underpayment of Estimated Tax 33.20
        • d. Accuracy-Related Penalty 33.21
        • e. Penalty for Late Payment of Tax 33.22
        • f. Waiver of Penalties
          • (1) Penalty for Underpayment 33.23
          • (2) Penalty for Late Payment 33.24
          • (3) Penalty for Late Filing 33.25
      • 5. Income and Deduction Items Properly Included on Final Return 33.26
        • a. Specific Income Items
          • (1) Compensation for Services 33.27
          • (2) Installment Sales Proceeds 33.28
          • (3) Investment Income 33.29
          • (4) Income From Trusts and Estates 33.30
          • (5) Income From Partnerships 33.31
          • (6) Income From S Corporations 33.32
        • b. Specific Deduction Items
          • (1) Standard Deduction and Personal Exemption 33.33
          • (2) Bad Debts 33.34
          • (3) Casualty and Theft Losses 33.35
          • (4) Distributive Share of Partnership Losses 33.36
          • (5) Depreciation 33.37
          • (6) Medical Expenses 33.38
          • (7) Amortized, Unrecovered Costs Incurred in Installment Sale of Capital Asset 33.39
      • 6. Claims for Refund
        • a. Procedure for Making Refund Claims 33.40
        • b. Distribution of Refund Claims 33.41
      • 7. Estimated Tax Payments Due From Decedent
        • a. In General 33.42
        • b. If Decedent Survived by Spouse 33.43
        • c. Crediting Payments Made by Decedent and Spouse 33.44
  • IV. INCOME TAXATION OF NONPROBATE ASSETS
    • A. Nonprobate Situations in General 33.45
    • B. Retirement Plans 33.46
      • 1. Tax Treatment 33.47
      • 2. Postdeath Required Minimum Distribution Rules 33.48
        • a. Distribution to Surviving Spouse 33.49
        • b. Distribution to Nonspouse Beneficiary 33.50
      • 3. Roth IRAs 33.51
    • C. Life Insurance 33.52
  • V. ESTATE'S FIDUCIARY INCOME TAX RETURNS
    • A. Notice to Franchise Tax Board [Deleted] 33.53
    • B. Tax Identification Number 33.54
    • C. Choice of Tax Year 33.55
    • D. Electing Qualified Revocable Trust 33.56
    • E. Reporting and Filing 33.57
      • 1. Federal Filing Requirements 33.58
      • 2. California Filing Requirements 33.59
      • 3. Interest and Penalties 33.60
    • F. Income of Estate
      • 1. Gross Income and Taxable Income 33.61
      • 2. Income in Respect of Decedent 33.62
        • a. Specific IRD Items 33.63
          • (1) Compensation for Services to Date of Death 33.64
          • (2) Installment Obligations 33.65
          • (3) Contracts for, e.g., Sale, Exchange of Assets 33.65A
          • (4) Dividends and Interest 33.66
          • (5) Required Distributions of Income From Trust 33.67
          • (6) Pass-Through Entities 33.68
        • b. Tax Basis and Character of IRD 33.69
        • c. Acceleration of Income Recognition in Certain Cases 33.70
      • 3. Capital Gains 33.71
      • 4. Estate's Final Year 33.72
    • G. Deductions of Estate
      • 1. In General 33.73
      • 2. Nondeductibility of Expenses Allocated to Tax-Exempt Income 33.74
      • 3. Administrative Expenses
        • a. In General 33.75
        • b. No Double Deduction 33.76
      • 4. Charitable Deduction
        • a. Allowance of Deduction 33.77
        • b. Transfer Pursuant to Governing Instrument 33.78
        • c. Qualified Charity 33.79
        • d. Gross Income Requirement 33.80
      • 5. Net Operating Losses 33.81
      • 6. Depreciation, Depletion, and Amortization 33.82
      • 7. Expenses in Respect of Decedent (Deductions in Respect of a Decedent) 33.83
      • 8. Income Tax Deduction for Estate Tax Paid on IRD 33.84
      • 9. Capital Expenditures 33.85
      • 10. Capital Losses 33.86
      • 11. Income Distribution Deduction
        • a. Allowance of Income Distribution Deduction 33.87
          • (1) Distributable Net Income
            • (a) Purposes of DNI 33.88
            • (b) Determination of DNI 33.89
            • (c) Separate Share Rule 33.90
          • (2) Fiduciary Accounting Income 33.91
          • (3) Classes of Beneficiaries 33.92
            • (a) Tier-1 Beneficiaries 33.93
            • (b) Tier-2 Beneficiaries 33.94
            • (c) Variable Tier 33.95
            • (d) Charity as "Middle Tier" 33.96
        • b. No Deduction for Bequests—IRC §663(a)(1) 33.97
        • c. Amount of Deduction for "In-Kind" Distribution 33.98
      • 12. Estate's Final Year 33.99
    • H. Distributions
      • 1. Gain or Loss Recognition 33.100
      • 2. Distributions of Income in Respect of Decedent
        • a. Transfer of IRD to Other Than Recipient 33.101
        • b. Use of IRD to Fund Pecuniary Bequest 33.102
        • c. Transfer of Installment Obligation to Obligor 33.103
      • 3. Distributions of S Corporation Stock 33.104
      • 4. Withholding on Distributions to Nonresident Beneficiaries
        • a. Distributions to Non-U.S. Beneficiaries 33.105
        • b. Distributions to Non-California Resident Beneficiaries 33.106
    • I. Tax Rates and Alternative Minimum Tax 33.107
    • J. Medicare Contribution Tax on Net Investment Income 33.107A
    • K. Estimated Tax 33.108
    • L. California Income Tax Rules 33.109
  • VI. TAXATION OF BENEFICIARIES
    • A. Income and Deductions 33.110
    • B. Character of Income 33.111
    • C. Character and Allocation of Deductions Among Items Included in DNI 33.112
    • D. Distributions on Termination of Estate 33.113
    • E. Distributee Liability 33.114
  • VII. TERMINATION OF ESTATE
    • A. Termination of Estate as Separate Taxpayer 33.115
    • B. Furnishing Information to Beneficiaries 33.116
    • C. California Estate Income Tax Clearance Certificate No Longer Required 33.117
    • D. Termination Notice—IRS Form 56 33.118
  • VIII. BASIS OF INHERITED PROPERTY
    • A. Basis Rules Before and After 2010
      • 1. Basis Rules for Transfers at Death, Generally 33.119
      • 2. New Basis Consistency Rules 33.119A
      • 3. Property of Surviving Spouse or Domestic Partner 33.120
      • 4. Exceptions to Date-of-Death Basis Rule 33.121
        • a. Income in Respect of Decedent (IRD) 33.122
        • b. Appreciated Property Acquired by Gift 33.123
      • 5. Application of Basis Rule to Particular Forms of Ownership
        • a. Joint Tenancy 33.124
        • b. Community Property and Community Property With Right of Survivorship 33.125
        • c. Tenancy in Common 33.126
      • 6. Postdeath Basis Adjustments 33.127
    • B. Holding Period of Assets Acquired From Decedent 33.128
    • C. Basis Rules in 2010 for Estates That Elected to Opt Out of Estate Tax 33.129

34

Estate Tax Concepts and Procedures

Jon R. Vaught

  • I. INTRODUCTION TO ESTATE TAX PROCEDURES
    • A. Scope of Chapter 34.1
    • B. American Taxpayer Relief Act of 2012 34.1A
      • 1. Effective Years 34.1B
      • 2. Portability of Applicable Exclusion Amount 34.1C
        • a. Effective Date 34.1D
        • b. Electing Portability 34.1E
        • c. Effect of Decision in Windsor for Portability 34.1F
    • C. Estate, Gift, and Generation-Skipping Transfer (GST) Laws for Transfers Made Before January 1, 2014 34.1G
      • 1. Filing Estate and GST Tax Returns 34.1H
      • 2. Opting Out of Federal Estate Tax Rules for Decedents Dying in 2010 34.1I
    • D. Basic Concepts
      • 1. Federal Estate Tax System
        • a. How Federal Estate Tax Is Computed 34.2
        • b. Key Terms
          • (1) Gross Estate 34.3
          • (2) Deductions 34.4
          • (3) Credits: Applicable Credit Amount and Applicable Exclusion Amount 34.5
      • 2. GST Tax 34.6
      • 3. California Estate Tax 34.7
  • II. INITIAL STEPS FOR PERSONAL REPRESENTATIVE
    • A. Collect Information and Documents 34.8
    • B. Determine Who Will Prepare Tax Returns 34.9
    • C. Initial Filings 34.10
  • III. FEDERAL ESTATE TAX PROCEDURE
    • A. Federal Estate Tax Return 34.11
      • 1. Which Estates Must File Federal Estate Tax Return
        • a. Citizens and Residents of United States 34.12
        • b. Nonresidents With Property in United States 34.13
        • c. Decedents Dying in 2010 34.14
      • 2. Other Reasons to File 34.15
      • 3. Date Federal Estate Tax Return Is Due 34.16
      • 4. Extension of Time to File Federal Estate Tax Return 34.17
      • 5. Who Is Required to File Federal Estate Tax Return 34.18
      • 6. How and Where to File Federal Estate Tax Return 34.19
      • 7. Claiming Refund After Federal Estate Tax Return Has Been Filed
        • a. Amending Return to Claim Refund 34.20
        • b. Effect of Protective Claim for Refund 34.20A
      • 8. New Basis Reporting and Consistency Rules 34.20B
        • a. Applies to Returns Filed After July 31, 2015 34.20C
        • b. Applies Only to Returns Required to Be Filed Under IRC §6018(a) 34.20D
        • c. Notification to the IRS and Beneficiaries 34.20E
        • d. Valuation Adjustment Notification 34.20F
        • e. Penalties 34.20G
    • B. Paying Federal Estate Tax
      • 1. When Estate Tax Is Due 34.21
      • 2. Extensions of Time to Pay Estate Tax 34.22
        • a. Extension of Time to Pay Tax (IRC §6161) 34.23
        • b. Election to Postpone Payment of Tax on Reversionary and Remainder Interests (IRC §6163) 34.24
        • c. Election to Make Installment Payments for Closely Held Business Interests (IRC §6166) 34.25
          • (1) Installment Plan 34.26
          • (2) Loss of Election 34.27
          • (3) Declaratory Judgments 34.28
      • 3. Fiduciary Liability for Payment of Tax 34.29
      • 4. Request for Discharge From Personal Liability 34.30
      • 5. Proration of Estate Taxes 34.31
        • a. California Rule of Equitable Proration 34.32
        • b. Allowances for Credits, Deductions, Exemptions, and IRC §2032A Elections 34.33
        • c. Special Rule Concerning Interests in Trusts 34.34
        • d. Collection From Nonprobate Beneficiaries 34.35
        • e. Right of Reimbursement 34.36
    • C. Penalties and Interest
      • 1. Delinquency Penalties
        • a. Failure to Timely File Estate Tax Return 34.37
        • b. Failure to Timely Pay Estate Taxes 34.38
        • c. Failure to Provide Basis Statements 34.38A
      • 2. Penalties for Underpayment
        • a. Accuracy-Related Penalties 34.39
        • b. Fraud 34.40
        • c. Return Preparer Penalties 34.40A
      • 3. Reasonable-Cause Exceptions May Avoid Imposition of Penalties 34.41
      • 4. Interest on Late Payment of Taxes 34.42
    • D. Collection of Federal Estate Tax
      • 1. General Rules Concerning Collection of Estate Taxes 34.43
      • 2. Liens
        • a. Estate Tax Lien 34.44
          • (1) Divestment of Estate Tax Lien 34.45
          • (2) Lien Continues After Fiduciary's Discharge 34.46
          • (3) Lien Follows to Bona Fide Purchaser if No Discharge Obtained 34.47
        • b. Special Estate Tax Lien for IRC §6166 Deferrals 34.48
        • c. Special Estate Tax Lien for IRC §2032A Elections 34.49
      • 3. Third Party and Transferee Liability 34.50
    • E. Audit, Appeal, Litigation, and Refund 34.51
      • 1. Examination of Return 34.52
      • 2. Appeal of Examination Determination 34.53
      • 3. Notice of Deficiency 34.54
      • 4. Statute of Limitations for Assessing Additional Tax 34.55
      • 5. Litigation of Tax Issues 34.56
      • 6. Notice to State Controller on Final Determination of Deficiency 34.57
      • 7. Refund 34.58
  • IV. CALIFORNIA ESTATE TAX PROCEDURE
    • A. California Estate Tax Return 34.59
      • 1. Which Estates Must File California Estate Tax Return 34.60
      • 2. Date California Estate Tax Return Is Due 34.61
      • 3. Who Is Required to File California Estate Tax Return 34.62
      • 4. Amended Estate Tax Returns 34.63
    • B. Paying California Estate Tax 34.64
    • C. Collection of California Estate Tax; Lien 34.65
    • D. Procedures for Determining California Estate Tax Deficiencies 34.66

 

CALIFORNIA DECEDENT ESTATE PRACTICE

(2d Edition)

May 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH01

Chapter 1

Initial Considerations

01-028

§1.28

Verification by Declaration

01-047

§1.47

Checklist: Estate Record

CH02

Chapter 2

Nonprobate Transfers

02-016

§2.16

Affidavit—Death of Joint Tenant

02-021

§2.21

Petition to Establish Fact of Death of Joint Tenant

02-023

§2.23

Order Establishing Fact of Death

CH03

Chapter 3

Transfer of Personal and Real Property in Small Estates

03-019

§3.19

Declaration Under Probate Code §§13100–13116

CH04

Chapter 4

Spouses and Registered Domestic Partners: Rights, Liabilities, and Special Transfer Procedures

04-029

§4.29

If No Consent to Transfer

04-047

§4.47

Election by Surviving Spouse or Registered Domestic Partner to Administer Survivor’s Community Property in Deceased Spouse’s or Partner’s Estate

04-052

§4.52

Election and Agreement by Surviving Spouse or Registered Domestic Partner to Transfer Community Property to Trustee

04-058

§4.58

Declaration to Collect Compensation Owed to Deceased Spouse or Registered Domestic Partner (Prob C §§13600–13606)

04-086

§4.86

Petition to Set Aside and Assign Estate

04-091

§4.91

Order Setting Aside Estate and Assigning Estate

CH06

Chapter 6

Notice

06-017

§6.17

Memorandum to Newspaper for Publication

06-037

§6.37

Waiver of Special Notice

06-038

§6.38

Withdrawal of Request for Special Notice

06-042

§6.42

Application for Order Shortening Time

06-044

§6.44

Order Shortening Time

06-047

§6.47

Waiver of Notice

CH07

Chapter 7

Petition for Probate, Letters, and Qualification

07-028

§7.28

Grounds for Appointment

07-037

§7.37

Notice

07-042

§7.42

Petition for General Powers to Special Administrator

07-043

§7.43

Order Granting General Powers to Special Administrator

07-046

§7.46

Procedural Checklist: Initiating Probate Proceeding

07-048

§7.48

Checklist: Most Common Errors in Petition for Probate

07-053

§7.53

Conditional Declination to Serve

07-064

§7.64

Certification of Translation of Foreign Language Will (Attachment 3f(2)–3)

07-086

§7.86

Sample Information Letter to Beneficiary

07-100

§7.100

Petition for Order to Supplement Title of Proceedings

07-101

§7.101

Order Supplementing Title of Proceedings

07-103

§7.103

Attachment 3g(1)(d) to Petition for Probate on Death or Disqualification of Executor

CH08

Chapter 8

Determination of Order of Death and Proceeding to Determine Survival

08-021

§8.21

Petition to Determine Survival

08-024

§8.24

Objections to Petition

08-026

§8.26

Order

CH09

Chapter 9

Bonds

09-010

§9.10

Receipt and Agreement by Depository

09-012

§9.12

Application to Deposit Assets Under Prob C §9703

09-022

§9.22

Income in Blocked Account to Be Distributed to Personal Representative

09-027A

§9.27A

Ex Parte Application to Increase Bond

09-032

§9.32

Petition to Reduce Bond

09-033

§9.33

Declaration in Support of Petition to Reduce Bond

09-034

§9.34

Order Reducing Bond

09-047A

§9.47A

Notice of Motion and Motion for Judgment Enforcing Liability on Bond

CH10

Chapter 10

Initial Duties of Personal Representative

10-005

§10.5

Sample Letter of Instructions

10-028

§10.28

Receipt for Anticipatory Distribution and Indemnity Agreement

10-048

§10.48

CHECKLIST: ISSUES FOR CONSIDERATION AT BEGINNING OF ESTATE ADMINISTRATION

CH11

Chapter 11

Ancillary Administration

11-023

§11.23

Attachment to Petition for Probate

11-029

§11.29

Attachment to Order for Probate

11-032

§11.32

Appointment of Representative

11-033

§11.33

Delivery of Assets; Request for Distribution

CH13

Chapter 13

Inventory and Appraisal

13-012

§13.12

Petition for Waiver of Appraisal by Probate Referee (Prob C §8903)

13-028

§13.28

Sample Form: Community Property Item

13-031

§13.31

Sample Form: Fractional Interest and Fractional Discount in Property

13-044

§13.44

Remainder Interest Subject to Life Tenancy

13-045

§13.45

Improved Real Property

13-052

§13.52

Sample Mortgage and Note Listings

13-068

§13.68

Checklist: Common Errors in Preparation of Inventory

13-076

§13.76

Notice of Filing of Inventory and Appraisal

13-082

§13.82

Corrected Inventory

CH14

Chapter 14

Creditors’ Claims

14-003

§14.3

Checklist: Personal Representative’s Handling of Creditors’ Claims

14-080

§14.80

Procedural Guide: Suit on Claim

14-083

§14.83

Notice of Pendency of Action

14-085

§14.85

Complaint

CH15

Chapter 15

Independent Administration of Estates

15-008

§15.8

Petition for Authority Under IAEA

15-010

§15.10

Warning That Must Be Included in Notice of Hearing

15-012

§15.12

Order Granting Authority Under IAEA

15-032

§15.32

Ex Parte Application for Restraining Order

15-033

§15.33

Restraining Order

CH16

Chapter 16

Petition for Instructions or Confirmation

16-008

§16.8

Petition to Authorize and Instruct or Approve and Confirm Action of Personal Representative

16-012

§16.12

Order Authorizing and Instructing or Approving and Confirming Acts of Personal Representative

CH17

Chapter 17

Statutory Protections for Family Members

17-012

§17.12

Petition for Order Modifying Period of Temporary Possession of Family Dwelling and Exempt Property

17-013

§17.13

Order Modifying Period for Temporary Possession of Family Dwelling and Exempt Property

17-016

§17.16

Petition for Order Setting Aside Exempt Personal Property

17-017

§17.17

Order Setting Aside Exempt Personal Property

17-032

§17.32

Petition for Order Setting Aside Probate Homestead

17-033

§17.33

Order Setting Aside Probate Homestead

17-061

§17.61

Petition for Payment of Family Allowance

17-062

§17.62

Order for Family Allowance

17-066

§17.66

Petition to Modify or Terminate Family Allowance

17-067

§17.67

Order Modifying or Terminating Family Allowance

CH18

Chapter 18

Sales of Estate Property

18-024

§18.24

Ex Parte Petition to Execute Exclusive Listing Agreement

18-025

§18.25

Order Authorizing Execution of Exclusive Listing Agreement

18-039

§18.39

Checklist: Reasons for Delay in Confirming Sales of Real Property

18-045

§18.45

Order Shortening Time of Notice of Sale

18-052

§18.52

Notice of Sale

18-057

§18.57

Bid to Purchase Real Property; Representative’s and Broker’s Acceptance

18-061

§18.61

Buyer Has Not Relied on Representations by Seller

18-077

§18.77

Increased Bid in Open Court

18-083

§18.83

Deed to Real Property

18-114

§18.114

Notice of Sale

18-119

§18.119

Report of Sale and Petition for Order Confirming Sale of Personal Property

18-123

§18.123

Order Confirming Sale of Personal Property

18-126

§18.126

Bill of Sale

CH19

Chapter 19

Investments and Purchases of Property

19-006

§19.6

Petition for Authority to Employ Investment Advisor

19-007

§19.7

Order Authorizing Employment of Investment Advisor

19-029

§19.29

Petition for Authority to Purchase Annuity

19-030

§19.30

Order Authorizing Representative to Purchase Annuity Policy

19-036

§19.36

Petition for Authority to Invest Money

19-037

§19.37

Order for Investment of Funds

CH20

Chapter 20

Compromise and Settlement of Claims

20-023

§20.23

Petition for Order Authorizing Compromise and Settlement of Creditor’s Claim or Suit

20-024

§20.24

Order Authorizing Compromise and Settlement of Creditor’s Claim or Suit

20-026

§20.26

Petition for Order Authorizing Discharge of Obligation Due Decedent

20-027

§20.27

Order Authorizing Representative to Discharge Obligation Due Decedent

20-033

§20.33

Petition for Order Authorizing Compromise of Claim Against Estate and Conveyance of Property to Lender in Complete Satisfaction of Estate’s Obligation Under Purchase Money Note

20-034

§20.34

Order Authorizing Compromise of Claim Against Estate and Conveyance of Property to Lender in Complete Satisfaction of Estate’s Obligation Under Purchase Money Note

20-037

§20.37

Petition for Order Authorizing Acceptance of Deed in Lieu of Foreclosure

20-038

§20.38

Order Authorizing Acceptance of Deed in Lieu of Foreclosure

20-040

§20.40

Petition for Order Authorizing Partial Satisfaction and Reconveyance

20-041

§20.41

Order Authorizing Partial Satisfaction and Reconveyance

CH21

Chapter 21

Borrowing Money

21-018

§21.18

Petition for Authority to Borrow Money and Execute Security Instrument

21-021

§21.21

Order Authorizing Representative to Borrow Money and to Execute Security Instrument

CH22

Chapter 22

Options and Leases

22-005

§22.5

Petition by Beneficiary of Testamentary Option for Order Authorizing and Directing Sale of Estate Property to Petitioner

22-007

§22.7

Order Authorizing and Directing Representative to Sell Estate Property to Beneficiary of Testamentary Option

22-012

§22.12

Petition for Order Authorizing and Directing Representative to Grant Option to Buy Estate Real Property

22-016

§22.16

Order Authorizing and Directing Representative to Grant Option to Buy Estate Real Property

22-030

§22.30

Petition for Order Authorizing Lease of Real Property

22-035

§22.35

Order Authorizing and Directing Lease of Real Property

22-036

§22.36

Lease Under Authority of Order

CH23

Chapter 23

Handling a Decedent’s Business Interests

23-008

§23.8

Potential Conflicts Disclosure and Waiver for Personal Representative and Family Member Beneficiary

23-035

§23.35

Petition to Authorize Continuation of Business or to Direct Discontinuance of Business

23-036

§23.36

Order Authorizing Continuation of Business or Directing Discontinuance of Business

23-063

§23.63

Petition for Authority for Personal Representative to Serve as Partner in Decedent’s Partnership

23-064

§23.64

Order Authorizing Personal Representative to Serve as Partner in Decedent’s Partnership

23-085

§23.85

Checklist for Law Firm Practice Administrator

23-086

§23.86

Ex Parte Petition for Appointment of Practice Administrator

23-087

§23.87

Order Appointing Practice Administrator

23-100

§23.100

Petition for Authority to Transfer Business Interest Subject to Agreement

23-101

§23.101

Order Authorizing Transfer of Business Interest Subject to Agreement

CH24

Chapter 24

Accounts

24-003

§24.3

Letter Advising Personal Representative Regarding Ongoing Recordkeeping

24-004

§24.4

Sample Timesheet for Personal Representative

24-009

§24.9

Authorization to Disclose Information

24-017

§24.17

Example Reconciliation to Statements

24-020

§24.20

Sample Ledger

24-034

§24.34

Waiver of Account by Distributee

24-035

§24.35

Acknowledgment of Satisfaction of Interest by Distributee

24-046

§24.46

Sample Summary of Account

24-047

§24.47

Sample Summary of Account if Real Property Specifically Devised

24-050

§24.50

Property on Hand at Beginning of Account Period

24-052

§24.52

Additional Assets Received

24-054

§24.54

Receipts—Chronological

24-055

§24.55

Receipts—Categorized

24-057

§24.57

Receipts When All or Part of the Estate to Be Distributed to an Income Beneficiary

24-061

§24.61

Net Income From Trade or Business (Rental Property)

24-062

§24.62

Net Income From Trade or Business (Business)

24-064

§24.64

Disbursements—Chronological Account

24-065

§24.65

Disbursements—Categorized Account

24-069

§24.69

Disbursements When All or Part of Estate to Be Distributed to Income Beneficiary

24-073

§24.73

Distributions

24-075

§24.75

Other Credits

24-078

§24.78

Property on Hand at Close of Account Period

CH25

Chapter 25

Preliminary Distributions

25-030

§25.30

Procedural Checklist

25-039

§25.39

Trustee’s Declaration Consenting to Act

25-040

§§25.40-25.64

Title and Introductory Paragraphs

 

§25.41

Compliance With Notice Requirements

 

§25.42

Inventory and Appraisal

 

§25.43

Character of Estate Property

 

§25.44

Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration

 

§25.45

Actions Taken Under Independent Administration of Estates Act (IAEA)

 

§25.46

Debts Paid Without Creditors’ Claims

 

§25.47

Creditors’ Claims

 

§25.48

Estate Taxes

 

§25.49

Provisions for Payment of Estate Taxes

 

§25.50

Income Taxes

 

§25.53

Personal Property Taxes

 

§25.54

Names and Residences of Heirs and Beneficiaries

 

§25.55

Allegation Regarding Prior Distributions

 

§25.56

Description of Property to Be Distributed

 

§25.58

Proposed Distribution

 

§25.59

Propriety of Proposed Distribution

 

§25.60

Compliance With 50-Percent Limitation of Prob C §11623

 

§25.62

Requirement of Bond for Distributees

 

§25.63

Allowance on Account of Compensation

 

§25.64

Request for Order

25-073

§§25.73-25.93

Caption and Introduction

 

§25.74

Notice

 

§25.75

Petition True

 

§25.76

Date of Death and Domicile

 

§25.77

Appointment and Qualification of Representative

 

§25.78

Authority Under Independent Administration of Estates Act

 

§25.79

Passage of Time Since Issuance of Letters

 

§25.80

Inventory and Appraisal

 

§25.81

Character of Estate Property

 

§25.82

Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration

 

§25.83

Disposition of Creditors’ Claims

 

§25.84

Payment of Debts and Expenses

 

§25.85

Estate Taxes

 

§25.86

Payment of State and Federal Income Taxes

 

§25.88

Personal Property Taxes

 

§25.89

Allegation Regarding Financial Status of Estate

 

§25.90

Propriety of Distribution

 

§25.91

Compliance With 50-Percent Limitation of Prob C §11623

 

§25.92

Requirement of Distributee’s Bond

 

§25.93

Order

25-095

§25.95

Receipt of Distributee

CH27

Chapter 27

Probate Code §850 Petitions: Title Disputes and Executory Contracts

27-012

§27.12

Petition by Personal Representative to Establish Estate’s Ownership of Property

27-013

§27.13

Petition by Personal Representative to Determine Ownership of Estate Property

27-014

§27.14

Petition by Third Party Claimant to Determine Ownership of Estate Property

27-015

§27.15

Petition by Personal Representative for Specific Performance of Executory Contract for Sale of Property

27-016

§27.16

Petition by Purchaser for Specific Performance of Executory Contract of Sale for Property

27-025

§27.25

Objections to Personal Representative’s Petition to Determine Ownership of Estate Property

27-030

§27.30

Order Determining Ownership of Estate Property and Transferring Property to Claimant

27-031

§27.31

Order Establishing Estate’s Ownership of Property and Directing Transfer

27-032

§27.32

Order for Specific Performance and Directing Conveyance of Property

CH28

Chapter 28

Proceedings to Determine Entitlement to Estate Distribution

28-012

§28.12

Petition for Determination of Entitlement to Estate Distribution

28-018

§28.18

Statement of Interest

28-047

§28.47

Order Determining Entitlement to Estate Distribution

CH29

Chapter 29

Actions By and Against Personal Representative

29-061

§29.61

Complaint in Action by Representative or Successor in Interest

29-062

§29.62

Declaration by Successor in Interest

29-071

§29.71

Notice of Motion and Motion for Order Substituting Personal Representative as Defendant and for Leave to File Supplemental Complaint

29-109

§29.109

Petition for Order Compelling Personal Representative or Other Named Person to Account

29-110

§29.110

Order Compelling Personal Representative or Other Named Person to Account

29-112

§29.112

Petition for Issuance of Citation Requiring Personal Representative to Appear and Show Cause Why He or She Should Not Be Punished for Contempt

29-125

§29.125

Objections to Account and Request for Surcharge of Personal Representative and Other Remedies

29-130

§29.130

Petition for Removal of Representative

29-131

§29.131

Order for Issuance of Citation

29-132

§29.132

Order Removing Representative

29-137

§29.137

Notice of Motion Objecting to Bond

29-139

§29.139

Order Requiring Further Bond

CH30

Chapter 30

Compensation and Fees

30-004

§30.4

Retainer Agreement Between Personal Representative and Attorney

30-008

§30.8

Petition by Personal Representative for Relief From Will Provision for Compensation

30-010

§30.10

Order Granting Relief From Will Provision for Compensation of Personal Representative

30-015

§30.15

Waiver of Compensation as Representative

30-018

§30.18

Petition for Authority to Enter Into Contingent Fee Agreement

30-020

§30.20

Order Authorizing Contingent Fee Agreement

30-024

§30.24

Sample Agreement on Performance of and Compensation for Duties of Representative

30-026

§30.26

Petition for Prior Approval of Dual Compensation for Services as Personal Representative and Attorney for Personal Representative

30-028

§30.28

Order Approving Right to Compensation as Personal Representative and for Services as Attorney for Personal Representative

30-030

§30.30

Agreement Not to Participate in Fees Received by Attorneys for Personal Representative

30-034

§30.34

Checklist: “Ordinary” Attorney Services

30-061

§30.61

Petition for Allowance of Compensation

30-062

§30.62

Sample Declaration in Support of Request for Fees for Extraordinary Legal Services

30-064

§30.64

Order for Allowance of Ordinary Compensation to Personal Representative and Ordinary and Extraordinary Fees to Attorney

CH31

Chapter 31

Account, Report, and Petition for Final Distribution

31-015

§§31.15-31.93

Waiver of Account by Distributee

 

§31.17

Caption and Introduction

 

§31.18

Date of Death and Domicile; Ancillary Administration

 

§31.19

Appointment of Executor or Administrator; Authority Under Independent Administration of Estates Act

 

§31.20

Petition to Administer Estate Published

 

§31.22

Notice to Public Entities

 

§31.23A

Special Notice

 

§31.24

Inventory and Appraisal

 

§31.26

Character of Estate Property

 

§31.28

Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration

 

§31.30

Summary of Account

 

§31.32

Allegations of Waiver of Account

 

§31.34

Transactions During Account Period

 

§31.35

Unusual Expenditures

 

§31.36

Compensation Paid During Account Period

 

§31.37

Family or Affiliate Relationship

 

§31.38

Investment of Cash

 

§31.39

Sale of Assets

 

§31.40

Purchase, Exchange, or Change in Form of Assets

 

§31.42

Actions Taken Under Independent Administration of Estates Act

 

§31.44

Notice to Creditors

 

§31.46

Debts Paid Without Creditors’ Claims

 

§31.48

Creditors’ Claims

 

§31.48B

Allocation of Debts

 

§31.50

Estate Taxes

 

§31.52

Income Taxes

 

§31.56

Personal Property Taxes

 

§31.59

Allowance or Waiver of Statutory Compensation

 

§31.61

Request for Compensation for Extraordinary Services

 

§31.63

Status of Estate

 

§31.65

Assets on Hand

 

§31.67

Reserve for Closing Expenses

 

§31.69

Names and Residences of Heirs and Beneficiaries

 

§31.76

Proposed Distribution

 

§31.79

Distribution to Trustee of Testamentary Trust

 

§31.81

Whereabouts of Distributee Unknown

 

§31.83

Gift to Minor Not Exceeding $5000

 

§31.83A

Written Assurance of Parent

 

§31.84

Gift to Custodian for Minor

 

§31.85

Gift to Minor Exceeding $5000

 

§31.87

Gift to Predeceased Beneficiary

 

§31.88B

Abatement

 

§31.88C

Chart: General Gifts to Nonrelatives to Be Abated

 

§31.88E

Ademption by Extinction

 

§31.90

Proration of Estate Taxes

 

§31.92

Omnibus Clause

 

§31.93

Request for Orders

31-096

§31.96

Checklist: Final Review

31-107

§§31.107-31.146

Caption and Introductory Paragraph

 

§31.109

Compliance With Notice Requirements

 

§31.111

Account and Petition True

 

§31.113

Date of Death and Domicile; Ancillary Administration

 

§31.114

Appointment and Qualification of Representative

 

§31.115

Authority Under Independent Administration of Estates Act

 

§31.116

Estate in Condition to Be Closed; Waiver of Account

 

§31.117

Character of Estate Property

 

§31.118

Election by Surviving Spouse or Registered Domestic Partner to Subject Property to Administration

 

§31.119

Disposition of Claims

 

§31.120

Payment of Debts and Expenses

 

§31.121

Estate Tax

 

§31.122

Payment of State and Federal Income Taxes

 

§31.123

Payment of Personal Property Taxes

 

§31.124

Closing Expenses and Distribution of Reserve

 

§31.125

Proposed Distribution

 

§31.127

Compensation Allowed

 

§31.128

Administration of Estate Closed With/Without Waiver of Account

 

§31.130

Account Settled

 

§31.132

Personal Representative’s Acts Approved

 

§31.133

Personal Representative’s Compensation

 

§31.134

Attorney’s Compensation

 

§31.135

Closing Expenses

 

§31.136

Testamentary Trustee to Pay Tax Deficiencies

 

§31.137

Surviving Spouse or Domestic Partner’s Community and Quasi-Community Property Administered in Proceeding

 

§31.139

Distribution Plan (Testate/Intestate)

 

§31.140

Distributee’s Whereabouts Unknown

 

§31.141

Distributee Is Minor

 

§31.142

Distribution to Trustee

 

§31.144

Omnibus Clause

 

§31.146

Judge’s Signature

31-148

§31.148

Short Order Form

31-150

§31.150

Receipt of Distributee

CH32

Chapter 32

Transfer of Assets and Discharge of Representative

32-005

§32.5

Deed

32-010

§32.10

Cover Sheet for Order of Distribution

32-036

§32.36

Affidavit of Domicile

32-039

§32.39

Assignment Separate From Certificate

32-041

§32.41

Sample Letter of Instructions to Accompany Certificates

32-059

§32.59

Assignment of Partnership or LLC Interest

32-063

§32.63

Assignment of Promissory Note

32-067

§32.67

Assignment (Transfer) of Copyright

32-068

§32.68

Letter to Copyright Office

32-071

§32.71

Assignment (Transfer) of Patent

32-072

§32.72

Assignment (Transfer) of Trademark

32-074A

§32.74A

Assignment of Judgment

32-077

§32.77

Receipt on Distribution

 

Selected Developments

May 2017 Update

Under Welf & I C §14009.5, for individuals who die on or after January 1, 2017, the Department of Health Care Services (DHCS) may only recover from the probate estate (subject to exceptions). Thus, a Transfer on Death (TOD) deed for a decedent who dies on or after January 1, 2017, should be immune from recovery. Note also that the DHCS has yet to implement regulations in accordance with Welf & I C §14009.5, as amended. See §§2.35, 2.35D.

If a contestant of a revocable TOD deed records a lis pendens within 120 days of the transferor's death, the TOD transfer will be void and the court will order that the property be transferred to the person entitled to receive it. Prob C §5694(a). If a lis pendens was not so filed, a successful contestant may be awarded "appropriate relief," but the rights of a good faith purchaser or encumbrancer may not be affected. Prob C §5694(b). See §2.35F.

Enforcement of a judgment against property in the judgment debtor's estate is governed by the Probate Code, and not by the provisions of the Code of Civil Procedure regarding enforcement of judgments. CCP §686.020. See Torjesen v Mansdorf (2016) 1 CA5th 111. In Torjesen, the trial court's order invalidating a third party claim was voidable, but not void, and became final once the time to appeal that order ran. See §§2.43, 27.7, 29.87A.

Under Fam C §910, for purposes of debt apportionment and liability, the term "during marriage" "does not include the period after the date of separation of the spouses (as defined in Fam C §70), and before a judgment of dissolution of marriage or legal separation of the parties." See §§4.20—4.21.

The superior court sitting in probate "has the same power and authority with respect to the proceedings as otherwise provided by law for a superior court, or a judge of the superior court, including, but not limited to, the matters authorized by" CCP §128. See Prob C §800. The probate court, therefore, wields the power of contempt, which includes the power and authority to make orders and take certain actions. A new section has been added regarding contempt powers. See §5.7A.

Judicial Council Form DE-111, "Petition for Probate," has been revised. As of January 1, 2017, the form provides boxes to complete if the original will is lost or destroyed. See revised form at §7.49. While parts have been renumbered, there is a discrepancy between the waiver box on Judicial Council Form DE-111 (box 3e) and the Attachment box (A-3d) on Judicial Council Form DE-142/DE-111 (A-3d). See §9.4A. Practitioners need to be aware of the discrepancy when using these forms. See §§7.52—7.103.

An increasingly important issue is the handling of a decedent's digital assets and accounts. Many companies or businesses have privacy policies that make it difficult for a personal representative or trustee to access a decedent's accounts, particularly without knowing the user's password. New sections discussing the Revised Uniform Fiduciary Access to Digital Assets Act have been added. See §§10.38A, 13.59A. See also §23.17. The Act became effective January 1, 2017, and was added to the California Probate Code. See Prob C §§870—884.

In Funsten v Wells Fargo Bank (2016) 2 CA5th 959, the court held that a trustee's actions did not violate a trust's no-contest clause under former law applicable to instruments that became irrevocable before 2001. The trustee's actions did not violate the will's no-contest clause because the trustee was not a beneficiary of the will. See §26.43.

Some title disputes can be brought before a probate court. In Carne v Worthington (2016) 216 CA4th 548, the appellate court found that signing a trust document was sufficient to transfer real property without necessity of a formal deed. The transfer was from decedent as trustee of his revocable living trust to his irrevocable trust. See §27.2.

The double damages provided for under Prob C §859 are not punitive damages; therefore, double damages can be collected from decedent's estate (punitive damages cannot be collected after the death of the tortfeasor). See Hill v Superior Court (2016) 244 CA4th 1281. See §§27.9A, 29.32, 29.63.

Relying on language in a CEB book on drafting revocable trusts as evidence of the decedent's intention in including such language, the court in Doolittle v Exchange Bank (2015) 241 CA4th 529 found that the defense of claims provision was not part of the no-contest clause because it did not have the effect of penalizing a beneficiary for launching the contest. See §28.6.

On July 1, 2016, all applicable sections of the California Probate Code were amended to include a "registered domestic partner" in the definitions of "spouse," "predeceased spouse," and "surviving spouse" for purposes of applying provisions of the Probate Code that are generally applicable to a "spouse," a "predeceased spouse," and/or a "surviving spouse." See Stats 2016, ch 50, §77. Probate Code §78 (amended and effective January 1, 2017) defines a person who is not a "surviving spouse" as a person whose domestic partnership with the decedent has been terminated, except as otherwise provided in Prob C §78. See §28.38. For more information, see §§33.43, 33.120.

For 2017, a trust or estate will be taxed at the top marginal rate for taxable income in excess of $12,500, whereas an individual will not be taxed at the top marginal rate until his or her taxable income exceeds $418,400. See §§33.107—33.107A.

The exemption from alternative minimum tax for trusts and estates is $24,100 in 2017 and is reduced by 25 percent of alternative minimum taxable income in excess of $80,450. The AMT is 26 percent on the first $186,300 in 2016 and $187,800 in 2017 of AMTI in excess of the exemption plus 28 percent on AMTI over those amounts. Rev Proc 2016—55, 2016—45 Int Rev Bull 707. See also IRC §55(d)(1)(D), (3)(A), (3)(C). See §33.107.

For 2017, the applicable exclusion amount for the estate tax and GST tax is $5.49 million. Rev Proc 2016—55, 2016—45 Int Rev Bull 707. See §§33.1, 34.1A, 34.1G, 34.5—34.6, 34.12.

Now that the U.S. Supreme Court, in Obergefell v Hodges (2015) 576 US ___, 135 S Ct 2584, has determined that same-sex marriage is a protected right under the due process clause of the Fourteenth Amendment and that all states are required to license and recognize such marriages, the regulations defining marriage have been finalized. See Treas Reg §301.7701—18. See §33.120.

If a federal estate tax return is filed after July 31, 2015, the executor may be required to notify the IRS and the estate's beneficiaries of the value of the beneficiary's interest in the estate's assets. IRC §6035. Generally, under IRC §1014(a)(1), the income tax basis of property included in a decedent's gross estate is adjusted to the fair market value of the asset as of the date of death. The executor must report basis information on IRS Form 8971, which provides information about the TIN for the executor and decedent, and a listing of all assets of the estate (e.g., gross value unreduced by any debt, mortgage, deed of trust), other than assets that were sold prior to the due date of the return. See new sections discussing the new basis reporting and consistency rules in §§33.119A, 34.20B—34.20G.

There is a reasonable-cause exception for failure to timely file a return or pay the estate tax due. IRC §6651(a)(1)—(2). See West v Koskinen (ED Va 2015) 141 F Supp 3d 498 (reliance on advice of attorney as to when tax return was due was not reasonable), Specht v U.S. (6th Cir 2016) 661 Fed Appx 357 (attorney's incompetence not reasonable basis for failure to timely file estate tax return and pay taxes), and Bandelio Lopez Ibana, TC Summary Opinion 2015—70 (failure to file and pay penalties abated due to taxpayer illness and death of his spouse). See §34.41.

There were updates and changes to charts and forms in chaps 2—3, 7, 9—10, 13—15, 18, 24—25, and 30—32.

About the Authors

ALEX R. BORDEN established the Borden Law Office in Torrance and specializes in conservatorship, estate and trust administration, and litigation. Mr. Borden received his B.A. in Economics with a business emphasis (cum laude) in 1991 from the University of Colorado (Boulder) and his J.D. in 1995 from Loyola Law School (Los Angeles). Mr. Borden serves on and actively participates in the Los Angeles Superior Court Probate Volunteer Panel and Pro Per Guardianship Program of the South Bay Bar Association Estates and Trusts Section and regularly serves as court-appointed personal representative in decedent estate proceedings.

JANICE CROSETTI-TITMUS practices with the Law Offices of Crosetti & Titmus in Lafayette. She received a B.A., with honors, in English from the University of California, Berkeley, and her J.D. in 1981 from John F. Kennedy University School of Law. She is a member of the Alameda County, Contra Costa County, and Los Angeles County bar associations and is the former chair and founding and current board member of the Conservatorship/Guardianship/Probate/Trust Section of the Contra Costa County Bar Association. She has served as Pro Tem Judge, Probate Department, Contra Costa County Superior Court. She is a member of the Estate Planning Council of Diablo Valley, Lafayette Chamber of Commerce. Her practice focuses on the estate planning areas of wills, trusts, decedent estates, and conservatorship. She is Martindale-Hubbell AV-rated.

PAIGE T. ELDREDGE is the principal of Estate Minders, Inc., with locations in San Rafael and Sebastopol. She has specialized in preparing fiduciary accountings since 1995. Ms. Eldredge teaches ongoing courses in "Accounting and Record Keeping for Positions of Trust" through California State University Fullerton Extended Education and is a member of both the Professional Fiduciary Association of California and the San Francisco Paralegal Association. She received her B.A. from Humboldt State University in 1985.

DAVID J. ELEFANT practices in Walnut Creek. His practice emphasizes estate planning and trust and probate administration. He received his B.A. in 1974 from the University of California, Berkeley, and his J.D. in 1977 from the University of California, Hastings College of the Law. Following graduation, he served as a law clerk to Judge William East, Senior U.S. District Judge, District of Oregon. Mr. Elefant served as an instructor in the School of Extended Education at St. Mary's College in Moraga, teaching estate planning and probate administration from 1996 to 2006, and currently serves as an instructor at JFK University in the School of Management, Paralegal and Legal Studies Program. He was also a visiting professor in the School of Law at the University of Debrecen, Hungary, in the fall of 2008. He serves as a California Probate Referee in Contra Costa County and served as President of the California Probate Referees Association in 1998 and 2008. Mr. Elefant also serves as Judge Pro Tem for the Contra Costa County Superior Court probate department and has served as an editor for various CEB publications in this field. Mr. Elefant is active in the Contra Costa County Bar Association and is one of the co-chairs of its Probate and Trusts Section.

FATIMA BRUNSON EVANS is a partner in the law firm of Fitzgerald Abbott & Beardsley LLP and is a member of its Estates & Trusts Practice Group. Ms. Evans handles a variety of probate, trust, conservatorship, and estate planning matters and advises fiduciaries regarding their duties with respect to those matters. She also has extensive experience in preparing special needs trusts in the estate planning context as well as for the purpose of protecting litigation proceeds. She graduated cum laude with a B.A. degree from the University of California, Los Angeles, and received her J.D. degree from the University of California, Berkeley, School of Law. Ms. Evans is a former Chair of the Elder Law Committee of the Trusts and Estates Section of the Alameda County Bar Association. She is currently a member of the Trusts and Estates Section of the Alameda County Bar Association, the Estate Planning Council of Diablo Valley, the Charles Houston Bar Association, and Black Women Lawyers of Northern California.

MARIE E. GALANTI was a sole practitioner in Santa Rosa. In addition to estate planning, probate, and trust administration, she specialized in international private transactions, including estate planning with foreign assets, and settling estates for Americans with assets in foreign countries and for nonresident aliens in the United States. A former journalist and publisher of a French-language newspaper in San Francisco, Ms. Galanti received her Ph.D. in French Civilization from the University of Kansas and her J.D. from Golden Gate University in San Francisco. She served as a Director and Attorney Representative of the Redwood Empire Estate Planning Council in Santa Rosa and was a member of the Dean's Advisory Council at Golden Gate University. Ms. Galanti passed away in 2013.

ANDREA GEE is a partner in Ashworth & Ashworth, LLP, Santa Ana, emphasizing estate planning, probate, and trust law. Ms. Gee received her B.Journ. in 1983 from the University of Texas (Austin) and her J.D. in 1992 from Western State University School of Law.

MICHAEL C. GERSON is an attorney at the firm of Hartog, Baer & Hand, PC, in Orinda. His practice focuses on tax, estate planning, probate, and trust administration. Mr. Gerson received his LL.M. in Estate Planning from the University of Miami (Florida) in 1999 and his J.D. from the University of California, Davis, School of Law in 1995. Mr. Gerson is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and is certified as a specialist in Estate Planning, Trust, and Probate Law and in Taxation Law by the State Bar of California Board of Legal Specialization.

MARY F. GILLICK is of counsel with Withers Bergman LLP, San Diego, where she focuses on trust and estate litigation. She has experience in handling elder abuse cases, conservatorships and other protective proceedings. Ms. Gillick received her B.S. in Nursing from the University of Maryland in 1972 and her J.D. (magna cum laude) from the University of San Diego in 1984. She has served on the Executive Committee of the Trusts and Estates Section of the California State Bar, where she served as Chair of the Litigation Committee, and has spoken frequently at State Bar meetings, authored legislation, and contributed regularly to the California Trusts and Estates Quarterly. Additionally, Ms. Gillick is a coauthor of West Publishing's California Civil Practice—Probate and Trust Proceedings and has authored many other publications in this area of the law. Currently, she is on the Fiduciary Litigation Committee of the American College of Trust and Estate Counsel.

RICHARD A. GORINI is a principal in the San Jose law firm of Boskovich, Gorini & Vanasse, LLP. He graduated from Creighton University in 1977 summa cum laude with a bachelor's degree in Accounting. He received his J.D. from Santa Clara University in 1980. He has been a certified specialist in the area of estate planning, trust, and probate law of the State Bar of California since 1990; a former member and advisor (1994—2000) to the Executive Committee of the Estate Planning, Trust and Probate Law Section (now Trusts and Estates Section) of the State Bar of California; a past chairman of the Estate Planning, Trust and Probate Law Section of the Santa Clara County Bar Association; a former Trustee of the Silicon Valley Bar Association; and a Fellow of the American College of Trust and Estate Counsel (ACTEC) since 1996. He has served as a court-appointed referee for the superior courts of Santa Clara and Monterey counties in cases involving trust and estate litigation. He taught courses on probate administration, conservatorship law, and fiduciary tax law and procedure for the Santa Clara University Paralegal Institute from 1984 to 1992. He has authored numerous articles for the California Trusts and Estates Quarterly (and its predecessor publication) and is a frequent lecturer for the CEB, Silicon Valley Bar Association, Santa Clara County Bar Association, Bar Association of San Francisco, and other professional associations on matters of estate planning, probate and trust law, and related ethical and legal malpractice issues. He was a consultant to CEB for the 2007 Action Guide Handling a Probate.

MARGARET M. HAND is an attorney at Hartog, Baer & Hand, PC, which specializes in estate planning, trusts, and estates. She is a fellow of the American College of Trust and Estate Counsel (ACTEC), a Certified Specialist in Estate Planning, Trust and Probate Law and has been a California SuperLawyer for many years. She is the author of many book chapters and articles, as well as the book California Fiduciary Accounting (CEB 2015). She is a graduate of University of California, Berkeley, School of Law.

ANN C. HARRIS received her J.D. in 1980 from the University of San Diego and her LL.M. in Taxation in 1981 from Boston University. She is an Adjunct Professor of Law at the University of San Diego and has taught Federal Income Taxation of Trusts and Estates and Federal Gift, Estate and Generation-Skipping Transfer Taxation. She has authored various articles for the American Bar Association, the Practicing Law Institute, and Estate Planning magazine and is a contributing author to Drafting California Irrevocable Trusts (3d ed Cal CEB) and the West Group's California Transaction Forms, Estate Planning set. Ms. Harris received the Spirit of CEB award in 2013.

CRAIG L. JUDSON is a partner with the Walnut Creek firm of Bold, Polisner, Maddow, Nelson & Judson, a professional corporation. He received his B.A. in 1981 from the University of California, Davis (political science/public service major and graduation with summa cum laude and Phi Beta Kappa honors) and his J.D. in 1984 from the University of California, Davis, School of Law. His practice focuses on probate, estate, and trust planning and litigation, as well as real estate, construction defect, personal injury, and civil litigation, including representation of numerous local public agencies. In addition, he regularly serves as a Judge Pro Tem for the Superior Court of Contra Costa County Probate Department and three branch traffic departments. Mr. Judson is a member of the American, California, and Contra Costa County bar associations and serves as a private arbitrator and mediator.

JANET KAHN is a licensed professional fiduciary and sole proprietor of Janet Kahn Professional Fiduciary Services. Her practice focuses on conservatorships, guardianships, probate administration, and trust administration. Ms. Kahn received a B.A. from Douglass College of Rutgers University, an M.B.A. from Golden Gate University, and a J.D. from San Francisco Law School. She is a member of the East Bay Estate Planning Council, the Trusts and Estates Section of the Alameda County Bar Association, and the Elder Law and the Conservatorship/Guardianship, Probate and Trust sections of the Contra Costa County Bar Association. Ms. Kahn is coauthor of Handling a Fiduciary Accounting (Cal CEB Action Guide).

SANDY KASTEN is a sole practitioner in Berkeley. Her practice focuses on fiduciary and estate taxation, with an emphasis on tax return preparation and planning for trusts, estates, and individuals. Ms. Kasten is a 1976 graduate of the University of California, Hastings College of the Law, and received her M.B.A. in Taxation from Golden Gate University in 1981. She studied accounting at California State University East Bay (formerly CSU Hayward). She is a member of the Alameda County Bar Association and currently serves as treasurer of the Calaveras County Bar Association. She is a past board member of Women Lawyers of Alameda County.

SEAN R. KENNEY is an associate at The Myers Law Firm, P.C., a San Francisco estate planning law firm. He received his B.A. from the University of Vermont and his J.D. from Golden Gate University School of Law. He was named top tax student in his class, receiving the academic excellence award from the faculty of Golden Gate University School of Law's tax department. His practice consists of advising high-net-worth individuals in the areas of tax and estate planning, in addition to closely held business succession.

DAVID A. LEVIN is Senior Trust Officer at Union Bank. Mr. Levin was formerly in private practice with a primary emphasis on estate planning, administration, and mediation and litigation of trust and estate matters. He received his B.A. from the University of California, Berkeley, his J.D. from the University of San Francisco School of Law, and his LL.M. in Taxation from Golden Gate University School of Law. Mr. Levin has served as President of the East Bay Estate Planning Council, as Chair of the Trust and Estate Administration subcommittee of the Alameda County Bar Association, and as an adjunct professor of law at John F. Kennedy University School of Law, where he taught courses on Wills and Trusts. He is a member of the East Bay Trusts and Estates Lawyers and serves on the Board of Directors for the Cerebral Palsy Center for the Bay Area (in Oakland).

DEANNA D. LYON is a partner with the firm of Wendel, Rosen, Black & Dean LLP in Oakland. Her practice focuses on estate planning, probate, and trust administration. Ms. Lyon received her B.A., with honors, in 1969 from California State University, Fullerton, and her J.D. in 1972 from the University of California, Berkeley, School of Law. Ms. Lyon is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. She is a member of the Trusts and Estates sections of the State Bar of California and a member of the East Bay Estate Planning Council. Ms. Lyon is a former Director of the Alameda County Bar Association, a former member of the Executive Committee of the Probate Section of the Alameda County Bar Association, and a former chair of the Community Service Committee of the Alameda County Bar Association.

PATINA A. MADISON graduated from California State University, Long Beach, in 1973 with a degree in Psychology. While working toward a master's degree in special education, she joined the California Probate Referee's office in Long Beach. She received a certification as a paralegal in 1982, having completed the paralegal studies program at the University of California, Irvine. Ms. Madison graduated from Western State University College of Law in 1991 with an emphasis in Taxation. Since her admission to the bar, she has been a sole practitioner, limiting her practice to probate, conservatorship, and estate planning matters. She has served as a Judge Pro Tem in the Probate Department of the Orange County Superior Court, lectured for CEB, and acted as an expert witness.

AMY L. McEVOY is an associate with the firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. Her practice focuses on estate planning, trust administration, and probate. Ms. McEvoy received her B.A. in 1999 from the University of Southern California and her J.D. with Distinction in 2003 from McGeorge School of Law (University of the Pacific). Ms. McEvoy is a member of the Executive Committee of the Trusts and Estates Section of the Los Angeles County Bar Association.

ANNE BRUNER NASH is of counsel to the firm of Roisman Henel LLP in Oakland. Her practice focuses on estate planning, probate, and trust administration. Ms. Nash received her B.A. with Distinction in 1984 from Stanford University and her J.D. in 1987 from the University of California, Berkeley, School of Law. Ms. Nash is certified as a specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. She is a member of the Estate Planning Council of the East Bay, East Bay Tax Club, and the Trusts and Estates Section of the California State Bar.

GENEVIEVE S. ORTA is a partner with Osterloh & Orta, LLP. Her practice focuses on estate planning, probate, and trust administration. Ms. Orta received a B.S. from Syracuse University in 1990, a J.D. from the University of San Francisco School of Law (magna cum laude) in 1996, and an LL.M. in Taxation with honors from Golden Gate University in 2008. Ms. Orta is a founding member of East Bay Trusts & Estates Lawyers and belongs to the East Bay Estate Planning Council, the San Francisco Estate Planning Council, the Asian American Bar Association, and the California Bar Association Trusts and Estates Section. She is also an adjunct professor of law at John F. Kennedy University School of Law, where she teaches Wills & Trusts, Estate Planning, and Community Property. Ms. Orta has been a Northern California "Super Lawyer" in the area of estate planning and probate from 2007 to the present.

MELINDA MacDONALD OSTERLOH is a partner with Osterloh & Orta, LLP, specializing in estate planning, probate, and trust administration. In 1993, Ms. Osterloh received dual undergraduate degrees in English Literature and Psychology from Randolph-Macon Woman's College. She graduated from the University of San Francisco School of Law in 1996 and was a clerk for Justice Carl W. Anderson, Ret., California Court of Appeal, Second District, and the Honorable Marshall Whitley, Alameda County Superior Court. Ms. Osterloh is a member of East Bay Trusts & Estates Lawyers, the California Bar Association, and American Bar Association.

RUTH A. PHELPS, of Phelps Law Group, Pasadena, received her undergraduate degree in Mathematics in 1972 from Immaculate Heart College in Los Angeles. She received her J.D. in 1975 and LL.M. (Taxation) in 2004, both from Loyola Law School. She is a fellow, member of the Board of Directors, and vice-president of the National Academy of Elder Law Attorneys, past president of the Southern California chapter of that organization, a former member of the Executive Committee of the Trusts and Estates Section of the State Bar of California, a fellow of the American College of Trust and Estate Counsel, and a member of the Board of Overseers of Loyola Law School, Los Angeles. She is a member of the adjunct faculty of Loyola Law School, teaching elder law. Mrs. Phelps serves as a member of the probate Volunteer Panel of Attorneys for Los Angeles County Superior Court. She is certified as an Elder Law Attorney by the National Elder Law Foundation and certified by the California State Bar Board of Legal Specialization as an Estate Planning, Trust and Probate Law specialist. Mrs. Phelps has contributed as an author to many other CEB estate planning publications and has participated as a panelist for many CEB estate planning programs.

LEONARD W. POLLARD II is a Senior Deputy in the Office of the San Diego County Counsel. He is a former executive committee member and current reporter of the State Bar Trusts and Estates Section. Mr. Pollard's practice focuses both on probate and conservatorship administration, including related litigation. He received a B.A. in 1968 from the University of Kentucky and a J.D. in 1971 from the University of California, Hastings College of the Law.

NANCY BALDWIN REIMANN is a partner in the Tax and Estate Planning Practice Group in the Los Angeles office of Sheppard, Mullin, Richer & Hampton LLP. Ms. Reimann received her Bachelor of Science degree from the University of Santa Clara (magna cum laude) and her J.D. from the University of California, Los Angeles, School of Law. Ms. Reimann's areas of specialization include estate planning, the administration of trusts and probate estates, creditors' rights analysis, loan documentation, and work-outs. She has lectured on various estate planning topics for the clinical department of the University of California, Los Angeles, School of Law and is a frequent speaker on the topic of creditors' rights against trusts and probate estates. She served on the Executive Committee of the Los Angeles County Bar Trust & Estates Section for 9 years, including a term as Committee Chair. She currently serves on the Executive Committee of the California State Bar Trust & Estate Section. Ms. Reimann is a fellow of the American College of Trust and Estate Counsel.

PATRICK Z. RILEY is a sole practitioner in Oakland specializing in estate planning, probate and trust administration, and estate and gift taxation. Since 1997, Mr. Riley has been certified as a specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. He received his B.A. cum laude in 1967 from Santa Clara University and his J.D. in 1970 from the University of California, Berkeley, School of Law. He is a member of the East Bay Estate Planning Council, the Southern Alameda County Estate Planning Council, and the Trusts and Estates sections of the Alameda County Bar Association and the State Bar of California.

CYNTHIA V. ROEHL is a shareholder in Roehl & Glowacki, P.C. in Laguna Hills. Her practice focuses on probate and trust administration, estate planning, probate and trust litigation, and conservatorships. Ms. Roehl received her B.A. cum laude in 1985 from the University of California, Irvine, and her J.D. magna cum laude in 1996 from the University of Houston. She was a research editor for the Houston Journal of International Law. Ms. Roehl is a member of the Trusts and Estates Section of the Orange County Bar Association and the State Bar of California. She is a past chair of the Trusts and Estates Section of the Orange County Bar Association.

JONATHAN L. ROSENBLOOM is a graduate of the University of California, Berkeley, and Northwestern University School of Law, where he was Articles Editor of the Northwestern Journal of International Law & Business. He is a partner in the law firm of Rosenbloom & Rosenbloom, LLP, where his practice focuses on estate planning and administration, conservatorship, and real estate and business law. He is the Vice-Chair of the Trusts and Estates Section of the Los Angeles County Bar Association and has coordinated the Los Angeles Superior Court Probate Department's training programs for court-appointed counsel since 2003.

MARY M. RUDSER is a partner in Donahue Gallagher Woods LLP, where she specializes in estate planning, trust administration, and probate law. Ms. Rudser is a past Chair of the Trusts and Estates Section of the Alameda County Bar Association and a former Chair of its Trust Committee. She has also served two terms on the board of directors of the Alameda County Bar Association. In addition, she has served on multiple occasions as a court-appointed guardian ad litem for minors and conservatees. Before joining Donahue Gallagher Woods LLP, Ms. Rudser formed Stein, Rudser, Cohen & Magid LLP, and before that she was a partner in Brody & Satz and an associate at Miller, Starr & Regalia, all in Oakland. Ms. Rudser was admitted to the bar in 1981 in New York and in 1985 in California. She received her B.A. degree in English from Carleton College and an M.L.S. from the University of Maryland. She received her J.D. magna cum laude from Boston College Law School and an LL.M. in Taxation from New York University. She is a member of the California and New York state bars and the Alameda County Bar Association. She is also a member of the East Bay Tax Club and the East Bay Women's Forum.

MARC L. SALLUS is a partner in Oldman, Cooley, Leighton, Sallus, Gold, Birnberg & Coleman LLP, in Encino. He went to the University of California, Hastings College of the Law. His undergraduate school was Claremont Men's College. He was Chair of the Conference of Delegates of the Conference of California Bar Associations. He was the former chair of the Beverly Hills Bar Probate, Trust and Estate Planning Section. He served as President of the Beverly Hills Bar Association. He also served on the Executive Committee of the State Bar of California's Trust and Estate Section and Los Angeles County Bar's Probate Section. He is a Fellow of the American College of Trust and Estate Counsel. He is a coauthor of the will contest chapters in CEB's California Decedent Estate Practice, Vol. III and California Trust and Probate Litigation (Cal CEB). He has lectured on trust, estate, probate, and conservatorship matters to numerous bars and on behalf of CEB.

BART J. SCHENONE practices with Temmerman Cilley & Kohlmann, LLP, Danville, in the areas of estate planning, trust, and probate law, as well as in the related areas of real property and business law. He received his B.A. from Stanford University in 1971 and his J.D. from the University of Michigan Law School in 1974. Mr. Schenone is a certified specialist in Estate Planning, Trust and Probate Law and a fellow with the American College of Trust and Estate Counsel.

MAY LEE TONG practices in Oakland. Her practice emphasizes estate planning, probate, and trust administration. She is certified as a specialist in Estate Planning, Trust and Probate Law by the California Board of Legal Specialization. Ms. Tong graduated from Pomona College in 1970 and from Golden Gate University School of Law in 1983. She is admitted to practice in California and Hawaii. She is the current chair of the Executive Committee of the Trusts and Estates Section of the State Bar of California and has served as chair of two of its subcommittees: Educating Seniors and Incapacity.

JON R. VAUGHT is a partner in the firm of Vaught & Boutris, LLP, in Oakland. His practice is focused on counseling and litigation in the areas of tax, estate planning, probate and trust administration, asset protection, and business law. Mr. Vaught received a B.A. degree with honors from the University of California, Berkeley, in 1981, a J.D. degree from the University of California, Davis, School of Law in 1984—where he was editor of the U.C. Davis Law Review and copublished an article—and an LL.M. degree in Tax Law from Golden Gate University School of Law in 1994. Mr. Vaught is certified as a specialist in Tax Law by the State Bar of California Board of Legal Specialization. Since 1994, Mr. Vaught has been an adjunct professor at Golden Gate University School of Law's LL.M. Tax Program, teaching classes in estate and gift taxation, estate planning, advanced estate planning, and professional responsibility for tax attorneys.

MARC WAHRHAFTIG, with the Law Offices of Marc Wahrhaftig in Oakland, specializes in estate planning, probate, trust law, and related areas. He received his B.A. in 1986 from the University of California, Los Angeles, and his J.D. in 1992 from the University of California, Hastings College of the Law. He chairs the Administration Committee of the Alameda County Bar Association Trusts and Estates Section and is also a member of the East Bay Estate Planning Council and the State Bar of California Trusts and Estates Section. He is a regular volunteer for the Lawyers in the Library program and has served as a Judge Pro Tem in small claims court. He is also an active classical musician. In addition to his work on this book, he has assisted with editing California Trust Administration (2d ed Cal CEB) and California Durable Powers of Attorney (Cal CEB).

CHARLES P. WOLFF is a member of Evans, Latham & Campisi in San Francisco. He specializes in probate and trust litigation. He received his B.A. from Wesleyan University in 1974 and his J.D. from the University of Michigan Law School in 1977. He is a fellow of the American College of Trust and Estate Counsel and a former member of the Executive Committee of the Trusts and Estates Section of the State Bar of California and former chair of the section's Ethics Committee.

ERIC R. YAMAMOTO, of the Law Offices of Eric R. Yamamoto in West Los Angeles, focuses his practice on probate, conservatorship, and trust matters. Mr. Yamamoto received his B.S. from the University of Southern California School of Business in 1971 and his J.D. from Loyola University School of Law in 1974. He belongs to the Trusts and Estates sections of the Santa Monica Bar Association, the Los Angeles County Bar Association, and the State Bar of California. He is a co-chair of the Santa Monica Bar Association Probate, Trust and Estate Planning Section. Mr. Yamamoto has taught at the University of West Los Angeles School of Law and at UCLA Extension and has been a speaker at numerous seminars sponsored by the Los Angeles County Bar Association. He periodically acts as an interviewer for the California State Controller's Advisory Probate Referee.

About the 2017 Update Authors

ALEX R. BORDEN, update author of chapters 10, 21, and 22. See bio in About the Authors.

SARAH S. BROOMER, update author of chapter 15, is an attorney with the law firm of Hinojosa & Forer LLP in Los Angeles. Her practice emphasizes estate planning, conservatorships, and trust and estate litigation. She received her B.A. degree in Political Science in 2004 from the University of California, Berkeley, and her J.D. in 2008 from Southwestern University School of Law. Mrs. Broomer was a judicial extern for the Honorable Aviva K. Bobb (Ret.), the supervising probate judge of the Los Angeles Superior Court. She is on the executive committee of the Beverly Hills Bar Association Trusts and Estates section.

LEIGHTON A. BURREY, update author of chapter 32, is an associate at Hartog, Baer & Hand, PC, Orinda, and focuses his practice on domestic and international estate, gift, and income tax planning. He assists clients with estate, income, and gift tax mitigation strategies, including domestic and offshore tax compliance, business succession planning, estate and trust administration, and multigenerational wealth preservation. Mr. Burrey has also advised high-net-worth individuals with sophisticated tax and wealth transfer planning and implementation. Mr. Burrey received his B.A. in 2001 from the University of California, Davis, and his J.D. in 2010 from the University of the Pacific, McGeorge School of Law. He earned an LL.M. in Taxation with honors in 2013 from Golden Gate University School of Law.

STEFANIE S. CUTLER, update author of chapter 9, has been employed at Bloom & Ruttenberg, Los Angeles, since 2007. Her practice focuses on trust and estate and fiduciary litigation as well as trust and estate administration. She also handles contested and noncontested conservatorship and guardianship matters. She earned two B.A. degrees from the University of Southern California in 2004 in Political Science and Environmental Studies. She is the current Chair of the Executive Committee of the Trust & Estate Committee of the Beverly Hills Bar Association. In addition, she serves as a co-editor of the Trusts & Estates Bulletin and is a member of the executive committee for the Trusts and Estates Section of the Los Angeles County Bar Association.

DAVID J. ELEFANT, update author of chapter 13. See bio in About the Authors.

LINDA ESHOE, update coauthor of chapters 6 and 7, is a Senior Deputy County Counsel with the Office of the Los Angeles County Counsel and currently practices in probate. She previously specialized in litigation and employment matters. Ms. Eshoe received her B.S. degree from the University of Southern California and her J.D. degree from Southwestern University School of Law. She belongs to the Trusts and Estates sections of the California State Bar and the Los Angeles County Bar Association, in addition to the Litigation, Inn of Courts, and Labor and Employment sections of the State Bar of California and the Los Angeles County Bar Association.

ANDREA GEE, update author of chapter 20. See bio in About the Authors.

MICHAEL C. GERSON, update author of chapter 4. See bio in About the Authors.

MARY F. GILLICK, update author of chapter 29. See bio in About the Authors.

PETA-GAY GORDON, update author of chapter 12, is an associate at Oldman, Cooley, Sallus, Birnberg & Coleman, LLP, in Encino. Ms. Gordon received her J.D. from the University of Southern California. She specializes in trusts and estates administration and litigation, guardianships, family law, and conservatorships.

RICHARD A. GORINI, update coauthor of chapters 27 and 28. See bio in About the Authors.

MARGARET M. HAND, update author of chapter 14. See bio in About the Authors.

ANN C. HARRIS, update author of chapter 33. See bio in About the Authors.

KELLY L. HINOJOSA, update author of chapter 28, is a trust and estate attorney who practices in Los Angeles at Hinojosa & Forer LLP. Her practice focuses on all aspects of fiduciary, estate, trust, and conservatorship litigation, including trust and will contests, disputes between trustees or executors and beneficiaries, fiduciary accountings and surcharge issues, contested conservatorship matters, and trust and will interpretation issues, as well as appeals. Ms. Hinojosa received her B.A. from University of Michigan in 2005 and her J.D. from Loyola Law School, Los Angeles, in 2008. She is a member of the Trust and Estates sections of the Beverly Hills Bar Association and the Los Angeles County Bar Association.

CRAIG L. JUDSON, update coauthor of chapters 16 and 17. See bio in About the Authors.

LAUREN C. LIEBES, update coauthor of chapter 2, is an associate with Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. Ms. Liebes received her B.S. from Boston University and her J.D. from Southwestern Law School. She also received an LL.M. in Taxation and a Certificate in Estate Planning from Georgetown University Law Center. Her individual and family wealth planning practice includes estate planning, probate, estate and gift tax, and trust administration matters.

AMY L. McEVOY, update coauthor of chapter 2. See bio in About the Authors.

SHARON M. NAGLE, update coauthor of chapters 16 and 17, is an attorney with the law firm of Bold, Polisner, Maddow, Nelson, & Judson in Walnut Creek. Her practice involves probate and trust litigation. She received her B.A. in Literature from the University of California, Santa Cruz, and her J.D. from the University of San Diego.

ANNE BRUNER NASH, update author of chapter 31. See bio in About the Authors.

GENEVIEVE S. ORTA, update author of chapter 8. See bio in About the Authors.

RUTH A. PHELPS, update author of chapters 24 and 25. See bio in About the Authors.

NANCY BALDWIN REIMANN, update coauthor of chapter 2. See bio in About the Authors.

CYNTHIA V. ROEHL, update author of chapter 30. See bio in About the Authors.

MARC L. SALLUS, update author of chapter 26. See bio in About the Authors.

BART J. SCHENONE, update author chapters 11 and 18. See bio in About the Authors.

ADAM L. STRELTZER, update author of chapters 5 and 23, practices in the Century City area of Los Angeles. Mr. Streltzer is a trust, estate, and fiduciary litigator with a special emphasis in creditor rights and judgment enforcement. His practice focuses on litigation concerning the rights, duties, money, and property of the deceased, incompetent, spendthrift, and bankrupt. Mr. Streltzer received his B.A. degree from San Diego State University in 1991 and his J.D. degree from the University of the Pacific School of Law in 1994. He is a member of the Trust and Estates sections of the Beverly Hills Bar Association and Los Angeles County Bar Association, a member of the Commercial Law League of America, and a participant in the Los Angeles County Superior Court's Probate Volunteer Panel (PVP) program.

CATHERINE SWAFFORD, update coauthor of chapter 29, is an associate at Withers Bergman LLP in San Diego. She practices exclusively in trust, estate, and fiduciary litigation. Ms. Swafford graduated cum laude from the University of California, Los Angeles, with a B.S. degree and obtained her J.D. degree from Pepperdine University School of Law. She has experience litigating cases from the initial stage of filing a petition through trial and post-judgment.

SARAH TALEI, update author of chapter 3, is an associate at Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP, in Encino. Ms. Talei graduated from the University of Southern California with a B.S. degree in Business Administration and obtained her J.D. degree from Whittier Law School, where she specialized in children's rights. She was an extern at the Children's Law Center and the Probate Department of the Los Angeles Superior Court. She has served as the Secretary and Treasurer on the Barrister Board of the Beverly Hills Bar Association and is a 2005 recipient of the Barristers Lawrence J. Blake Award for dedicated service. She is also a member of the Los Angeles County Bar Association, the San Fernando Valley Bar Association, and the Iranian Bar Association.

MAY LEE TONG, update author of chapter 19. See bio in About the Authors.

JON R. VAUGHT, update author of chapter 34. See bio in About the Authors.

MARC WAHRHAFTIG, update author of chapter 7. See bio in About the Authors.

ERIC R. YAMAMOTO, update author of chapters 6, 7, and 9. See bio in About the Authors.

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