citation: PROB § 19303

text: If trust property of the deceased settlor is subject to an execution lien at the time of the settlor’s death, enforcement against the property may proceed under the Enforcement of Judgments Law (Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure) to satisfy the judgment. The levying officer, as defined in Section 680.260 of the Code of Civil Procedure, shall account to the trustee for any surplus. If the judgment is not satisfied, the balance of the judgment remaining unsatisfied is payable in the course of administration.


kind: section

code: PROB

citation: PROB § 19304

text:
(a) An attachment lien may be converted into a judgment lien on property in the trust estate subject to the attachment lien, with the same priority as the attachment lien, in either of the following cases:

(1) Where the judgment debtor dies after entry of judgment in an action in which the property was attached.

(2) Where a judgment is entered after the death of the defendant in an action in which the property was attached.

(b) To convert the attachment lien into a judgment lien, the levying officer shall, after entry of judgment in the action in which the property was attached and before the expiration of the attachment lien, do one of the following:

(1) Serve an abstract of the judgment, and a notice that the attachment lien has become a judgment lien, on the trustee or other person holding property subject to the attachment lien.

(2) Record or file in any office where the writ of attachment and notice of attachment are recorded or filed an abstract of the judgment and a notice that the attachment lien has become a judgment lien. If the attached property is real property, the plaintiff or the plaintiff’s attorney may record the required abstract and notice with the same effect as if recorded by the levying officer.

(c) After the death of the settlor, any members of the deceased settlor’s family who were supported in whole or in part by the deceased settlor may claim an exemption provided in Section 487.020 of the Code of Civil Procedure for property levied on under the writ of attachment if the right to the exemption exists at the time the exemption is claimed. The trustee may claim the exemption on behalf of members of the deceased settlor’s family. The claim of exemption may be made at any time before the time the abstract and notice are served, recorded, or filed under subdivision (b) with respect to the property claimed to be exempt. The claim of exemption shall be made in the same manner as an exemption is claimed under Section 482.100 of the Code of Civil Procedure.

history: (History: Amended by Stats. 2007, Ch. 159, Sec. 29. Effective January 1, 2008.)

division: 9. TRUST LAW

chapter: 9. Claims Established by Judgment

path: 9. TRUST LAW > 8. PAYMENT OF CLAIMS, DEBTS, AND EXPENSES FROM REVOCABLE TRUST OF DECEASED SETTLOR > 9. Claims Established by Judgment


citation: PROB § 19320

text: If it appears that a debt of the deceased settlor has been paid or is payable in whole or in part from property in the deceased settlor’s trust, then the trustee, the surviving spouse, the personal representative, if any, of a deceased settlor’s probate estate, or a beneficiary may petition for an order to allocate the debt.

history: (History: Amended by Stats. 2015, Ch. 48, Sec. 8. (SB 785) Effective January 1, 2016.)

path: 9. TRUST LAW > 8. PAYMENT OF CLAIMS, DEBTS, AND EXPENSES FROM REVOCABLE TRUST OF DECEASED SETTLOR > 10. Allocation of Debts Between Trust and Surviving Spouse


citation: PROB § 19321

text:
A petition under Section 19320 shall include a statement of all of the following:

(a) All debts of the deceased settlor and surviving spouse known to the petitioner that are alleged to be subject to allocation and whether paid in whole or in part or unpaid.

(b) The reason why the debts should be allocated.

(c) The proposed allocation and the basis for allocation alleged by the petitioner.

history: (History: Added by Stats. 1991, Ch. 992, Sec. 3.)

part: 8. PAYMENT OF CLAIMS, DEBTS, AND EXPENSES FROM REVOCABLE TRUST OF DECEASED SETTLOR

chapter: 10. Allocation of Debts Between Trust and Surviving Spouse


citation: PROB § 19322

text: If it appears from the petition under Section 19320 that allocation would be affected by the value of the separate property of the surviving spouse and any community property and quasi-community property not administered in the trust, and if an inventory and appraisal of the property has not been provided by the surviving spouse, the court shall make an order to show cause why the information should not be provided.


citation: PROB § 19323

text:
(a) At least 30 days before the time set for the hearing on the petition, the petitioner shall cause notice of the time and place of the hearing and a copy of the petition to be served on the surviving spouse in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.

(b) At least 30 days before the time set for the hearing on the petition, the petitioner shall cause notice of the time and place of hearing, together with a copy of the petition, to be delivered pursuant to Section 1215 to each of the following persons who are not petitioners:

(1) All trustees of the trust and of any trusts to which an allocation of liability may be approved by the court pursuant to the petition.

(2) All beneficiaries affected.

(3) The personal representative of the deceased settlor’s probate estate, if any is known to the trustee.

(4) The Attorney General, if the petition relates to a charitable trust subject to the jurisdiction of the Attorney General, unless the Attorney General waives notice.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 105. (AB 976) Effective January 1, 2018.)


citation: PROB § 19324

text:
(a) The trustee, the personal representative, if any, of a deceased settlor’s probate estate, and the surviving spouse may provide for allocation of debts by agreement so long as the agreement substantially protects the rights of other interested persons. The trustee, the personal representative, or the spouse may request and obtain court approval of the allocation provided in the agreement.

(b) In the absence of an agreement, each debt subject to allocation shall first be characterized by the court as separate or community, in accordance with the laws of the state applicable to marital dissolution proceedings. Following that characterization, the debt or debts shall be allocated as follows:

(1) Separate debts of either spouse shall be allocated to that spouse’s separate property assets, and community debts shall be allocated to the spouses’ community property assets.

(2) If a separate property asset of either spouse is subject to a secured debt that is characterized as that spouse’s separate debt, and the net equity in that asset available to satisfy that secured debt is less than that secured debt, the unsatisfied portion of that secured debt shall be treated as an unsecured separate debt of that spouse and allocated to the net value of that spouse’s other separate property assets.

(3) If the net value of either spouse’s separate property assets is less than that spouse’s unsecured separate debt or debts, the unsatisfied portion of the debt or debts shall be allocated to the net value of that spouse’s one-half share of the community property assets. If the net value of that spouse’s one-half share of the community property assets is less than that spouse’s unsatisfied unsecured separate debt or debts, the remaining unsatisfied portion of the debt or debts shall be allocated to the net value of the other spouse’s one-half share of the community property assets.

(4) If a community property asset is subject to a secured debt that is characterized as a community debt, and the net equity in that asset available to satisfy that secured debt is less than that secured debt, the unsatisfied portion of that secured debt shall be treated as an unsecured community debt and allocated to the net value of the other community property assets.

(5) If the net value of the community property assets is less than the unsecured community debt or debts, the unsatisfied portion of the debt or debts shall be allocated equally between the separate property assets of the deceased settlor and the surviving spouse. If the net value of either spouse’s separate property assets is less than that spouse’s share of the unsatisfied portion of the unsecured community debt or debts, the remaining unsatisfied portion of the debt or debts shall be allocated to the net value of the other spouse’s separate property assets.

(c) For purposes of this section:

(1) The net value of either spouse’s separate property asset shall refer to its fair market value as of the date of the deceased settlor’s death, minus the date-of-death balance of any liens and encumbrances on that asset that have been characterized as that spouse’s separate debts.

(2) The net value of a community property asset shall refer to its fair market value as of the date of the deceased settlor’s death, minus the date-of-death balance of any liens and encumbrances on that asset that have been characterized as community debts.

(3) In the case of a nonrecourse debt, the amount of that debt shall be limited to the net equity in the collateral, based on the fair market value of the collateral as of the date of the decedent’s death, that is available to satisfy that debt. For the purposes of this paragraph, “nonrecourse debt” means a debt for which the debtor’s obligation to repay is limited to the collateral securing the debt, and for which a deficiency judgment against the debtor is not permitted by law.

(d) Notwithstanding the foregoing provisions of this section, the court may order a different allocation of debts between the deceased settlor’s probate estate, trust, and the surviving spouse if the court finds a different allocation to be equitable under the circumstances.

(e) Nothing contained in this section is intended to impair or affect the rights of third parties. If a trustee, a personal representative, if any, of a deceased settlor’s probate estate, or the surviving spouse incurs any damages or expense, including attorney’s fees, on account of the nonpayment of a debt that was allocated to the other party pursuant to subdivision (b), or as the result of a debt being misallocated due to fraud or intentional misrepresentation by the other party, the party incurring damages shall be entitled to recover from the other party for damages or expense deemed reasonable by the court that made the allocation.

history: (History: Amended by Stats. 2001, Ch. 72, Sec. 2. Effective January 1, 2002.)


citation: PROB § 19325

text:
On making a determination as provided in this chapter, the court shall make an order that:

(a) Directs the trustee to make payment of the amounts allocated to the trust by payment to the surviving spouse or creditors.

(b) Directs the trustee to charge amounts allocated to the surviving spouse against any property or interests of the surviving spouse that are in the possession or control of the trustee. To the extent that property or interests of the surviving spouse in the possession or control of the trustee are insufficient to satisfy the allocation, the court order shall summarily direct the surviving spouse to pay the allocation to the trustee.


citation: PROB § 19326

text: Notwithstanding any other statute, funeral expenses and expenses of last illness, in the absence of specific provisions in a will or trust to the contrary, shall be charged against the deceased settlor’s probate estate and thereafter, against the deceased settlor’s share of the trust and shall not be allocated to or charged against, the community share of the surviving spouse, whether or not the surviving spouse is financially able to pay the expenses and whether or not the surviving spouse or any other person is also liable for the expenses.


citation: PROB § 19330

text:
If proceedings are commenced under this part for the settlement of claims against the trust, and the time for filing claims has commenced, any action upon the liability of the surviving spouse under Chapter 3 (commencing with Section 13550) is barred to the same extent as provided for claims under this part, except as to the following:

(a) Any creditor who commences judicial proceedings to enforce a claim and serves the surviving spouse with the complaint prior to the expiration of the time for filing claims.

(b) Any creditor who has or who secures the surviving spouse’s acknowledgment in writing of the liability of the surviving spouse for the claim.

(c) Any creditor who files a timely claim in the proceedings for the administration of the estate of the deceased spouse.

path: 9. TRUST LAW > 8. PAYMENT OF CLAIMS, DEBTS, AND EXPENSES FROM REVOCABLE TRUST OF DECEASED SETTLOR > 11. Liability of Settlor’s Surviving Spouse


citation: PROB § 19400

text: Subject to Section 366.2 of the Code of Civil Procedure, if there is no proceeding to administer the probate estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then a beneficiary of the trust to whom payment, delivery, or transfer of the deceased settlor’s property is made pursuant to the terms of the trust is personally liable, to the extent provided in Section 19402, for the unsecured claims of the creditors of the deceased settlor’s probate estate.

history: (History: Amended by Stats. 2015, Ch. 48, Sec. 10. (SB 785) Effective January 1, 2016.)

chapter: 12. Distributee Liability

path: 9. TRUST LAW > 8. PAYMENT OF CLAIMS, DEBTS, AND EXPENSES FROM REVOCABLE TRUST OF DECEASED SETTLOR > 12. Distributee Liability


citation: PROB § 19401

text:
Subject to Section 19402, if the trustee filed a proposed notice to creditors pursuant to Section 19003 and published notice to creditors pursuant to Section 19040, and if the identity of the creditor was known to, or reasonably ascertainable by, the trustee within four months of the first publication of notice pursuant to Section 19040, then a person to whom property is distributed is personally liable for the claim of the creditor, without a claim first having been filed, if all of the following conditions are satisfied:

(a) The claim of the creditor was not merely conjectural.

(b) Notice to the creditor was not given to the creditor under Chapter 4 (commencing with Section 19050) and neither the creditor nor the attorney representing the creditor in the matter had actual knowledge of the administration of the trust estate sooner than one year after the date of first publication of notice pursuant to Section 19040.

(c) The statute of limitations applicable to the claim under Section 366.2 of the Code of Civil Procedure has not expired at the time of commencement of an action under this section.

history: (History: Amended by Stats. 1992, Ch. 178, Sec. 47. Effective January 1, 1993.)


citation: PROB § 19402

text:
(a) In any action under this chapter, subject to Section 366.2 of the Code of Civil Procedure, the distributee may assert any defenses, cross-complaints, or setoffs that would have been available to the deceased settlor if the settlor had not died.

(b) Personal liability under this chapter is applicable only to the extent the claim of the creditor cannot be satisfied out of the trust estate of the deceased settlor and is limited to a pro rata portion of the claim of the creditor, based on the proportion that the value of the property distributed to the person out of the trust estate bears to the total value of all property distributed to all persons out of the trust estate. Personal liability under this chapter for all claims of all creditors shall not exceed the value of the property distributed to the person out of the trust estate. As used in this chapter, the value of the property is the fair market value of the property on the date of its distribution, less the amount of any liens and encumbrances on the property at that time.

history: (History: Amended by Stats. 1992, Ch. 178, Sec. 48. Effective January 1, 1993.)


citation: PROB § 19403

text: Nothing in this chapter affects the rights of a purchaser or encumbrancer of property in good faith and for value from a person who is personally liable under this section.

history: (History: Amended by Stats. 2004, Ch. 183, Sec. 280. Effective January 1, 2005.)


citation: PROB § 19501

text: This part may be cited as the Uniform Trust Decanting Act.

history: (History: Added by Stats. 2018, Ch. 407, Sec. 1. (SB 909) Effective January 1, 2019.)

part: 9. Uniform Trust Decanting Act

path: 9. TRUST LAW > 9. Uniform Trust Decanting Act


citation: PROB § 19502

text:
For purposes of this part:

(a) “Appointive property” means the property or property interest subject to a power of appointment.

(b) “Ascertainable standard” means a standard relating to an individual’s health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code (26 U.S.C. Secs. 2041(b)(1)(A), 2514(c)(1)) and any applicable regulations.

(c) “Authorized fiduciary” means any of the following:

(1) A trustee or other fiduciary, other than a settlor, that has discretion to distribute or direct a trustee to distribute part or all of the principal of the first trust to one or more current beneficiaries.

(2) A special fiduciary appointed under Section 19509.

(3) A special-needs fiduciary under Section 19513.

(d) “Beneficiary” means a person that meets one of the following conditions:

(1) Has a present or future, vested or contingent, beneficial interest in a trust.

(2) Holds a power of appointment over trust property.

(3) Is an identified charitable organization that will or may receive distributions under the terms of the trust.

(e) “Charitable interest” means an interest in a trust that meets one of the following conditions:

(1) Is held by an identified charitable organization and makes the organization a qualified beneficiary.

(2) Benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.

(3) Is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.

(f) “Charitable organization” means either of the following:

(1) A person, other than an individual, organized and operated exclusively for charitable purposes.

(2) A government or governmental subdivision, agency, or instrumentality, to the extent it holds funds exclusively for a charitable purpose.

(g) “Charitable purpose” means the relief of poverty, the advancement of education or religion, the promotion of health, a municipal or other governmental purpose, or another purpose the achievement of which is beneficial to the community.

(h) “Court” means the court in this state having jurisdiction in matters relating to trusts.

(i) “Current beneficiary” means a beneficiary that on the date the beneficiary’s qualification is determined is a distributee or permissible distributee of trust income or principal. The term includes the holder of a presently exercisable general power of appointment but does not include a person that is a beneficiary only because the person holds any other power of appointment.

(j) “Decanting power” or “the decanting power” means the power of an authorized fiduciary under this part to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.

(k) “Expanded distributive discretion” means a discretionary power of distribution that is not limited to an ascertainable standard or a reasonably definite standard.

(l) “First trust” means a trust over which an authorized fiduciary may exercise the decanting power.

(m) “First trust instrument” means the trust instrument for a first trust.

(n) “General power of appointment” means a power of appointment exercisable in favor of a powerholder, the powerholder’s estate, a creditor of the powerholder, or a creditor of the powerholder’s estate.

(o) “Jurisdiction,” with respect to a geographic area, includes a state or country.

(p) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(q) “Power of appointment” means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in, or another power of appointment over, the appointive property. The term does not include a power of attorney.

(r) “Powerholder” means a person in which a donor creates a power of appointment.

(s) “Presently exercisable power of appointment” means a power of appointment exercisable by the powerholder at the relevant time.

(1) The term includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after one of the following, respectively:

(A) The occurrence of the specified event.

(B) The satisfaction of the ascertainable standard.

(C) The passage of the specified time.

(2) The term does not include a power exercisable only at the powerholder’s death.

(t) “Qualified beneficiary” means a beneficiary that, on the date the beneficiary’s qualification is determined, satisfies one of the following conditions:

(1) Is a distributee or permissible distributee of trust income or principal.

(2) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (1) terminated on that date without causing the trust to terminate.

(3) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

(u) “Reasonably definite standard” means a clearly measurable standard under which a holder of a power of distribution is legally accountable within the meaning of Section 674(b)(5)(A) of the Internal Revenue Code (26 U.S.C. Sec. 674(b)(5)(A)) and any applicable regulations.

(v) “Second trust” means either of the following:

(1) A first trust after modification under this part.

(2) A trust to which a distribution of property from a first trust is or may be made under this part.

(w) “Second trust instrument” means the trust instrument for a second trust.

(x) “Settlor,” except as otherwise provided in Section 19525, means a person, including a testator, that creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to the person’s contribution except to the extent another person has power to revoke or withdraw that portion.

(y) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(z) “Terms of the trust” means the manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust instrument, as may be established by other evidence that would be admissible in a judicial proceeding, or as may be established by court order or nonjudicial settlement agreement.

(aa) “Trust instrument” means a trust executed by the settlor to create a trust or by any person to create a second trust that contains some or all of the terms of the trust, including any amendments.


citation: PROB § 19503

text:
(a) Except as otherwise provided in subdivisions (b) and (c), this part applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest.

(b) This part does not apply to a trust held solely for charitable purposes.

(c) Subject to Section 19515, a trust instrument may restrict or prohibit exercise of the decanting power.

(d) This part does not limit the power of a trustee, powerholder, or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, law of this state other than this part, common law, a court order, or a nonjudicial settlement agreement.

(e) This part does not affect the ability of a settlor to provide in a trust instrument for the distribution of the trust property or appointment in further trust of the trust property or for modification of the trust instrument.


citation: PROB § 19504

text:
(a) In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust.

(b) This part does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of this part.

(c) Except as otherwise provided in a first trust instrument, for purposes of this part, the terms of the first trust are deemed to include the decanting power.


citation: PROB § 19505

text:
This part applies to a trust created before, on, or after January 1, 2019, that satisfies either of the following conditions:

(a) Has its principal place of administration in this state, including a trust whose principal place of administration has been changed to this state.

(b) Provides by its trust instrument that it is governed by the law of this state or is governed by the law of this state for the purpose of any of the following:

(1) Administration, including administration of a trust whose governing law for purposes of administration has been changed to the law of this state.

(2) Construction of terms of the trust.

(3) Determining the meaning or effect of terms of the trust.


citation: PROB § 19507

text:
(a) In this section, a notice period begins on the day notice is given under subdivision (c) and ends 59 days after the day notice is given.

(b) An authorized fiduciary may exercise the decanting power without the consent of any person and without court approval in compliance with this part.

(c) Except as otherwise provided in subdivision (h), an authorized fiduciary shall give notice of the intended exercise of the decanting power not later than 60 days before the exercise to all of the following:

(1) Each settlor of the first trust, if living or then in existence.

(2) Each qualified beneficiary of the first trust.

(3) Each holder of a presently exercisable power of appointment over any part or all of the first trust.

(4) Each person that currently has the right to remove or replace the authorized fiduciary.

(5) Each other fiduciary of the first trust.

(6) Each fiduciary of the second trust.

(7) The Attorney General, if subdivision (b) of Section 19514 applies.

(d) Unless the trust instrument provides otherwise, an authorized fiduciary shall give notice under subdivision (c) to the guardian ad litem for a qualified beneficiary who is a minor and has no representative or who is an unascertained or unborn beneficiary. If a guardian ad litem has not been appointed at the time of the notice, the authorized fiduciary shall seek the appointment of one. The court may appoint a guardian ad litem, for purposes of this section, in instances where the only matter before the court is that appointment.

(e) If an authorized fiduciary knows, or has reason to know, that a person entitled to notice under subdivision (c) is substantially unable to manage that person’s own financial resources or resist fraud or undue influence, the authorized fiduciary shall give notice under subdivision (c) to that person and to the individual appointed to act on that person’s behalf, including, but not limited to, an attorney-in-fact under a power of attorney. If no such individual has been appointed at the time of the notice, the authorized fiduciary shall seek the appointment of such an individual. The court may appoint a guardian ad litem, for purposes of this section, in instances where the only matter before the court is that appointment.

(f) An authorized fiduciary is not required to give notice under subdivision (c) to a person who is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.

(g) A notice under subdivision (c) shall include all of the following:

(1) A description of the manner in which the authorized fiduciary intends to exercise the decanting power, which shall include a statement as to the authorized fiduciary’s reason for the proposed decanting and an explanation as to the differences between the first trust and the second trust or trusts.

(2) The proposed effective date for exercise of the power.

(3) A copy of the first trust instrument.

(4) A copy of all second trust instruments.

(5) A warning, set out in a separate paragraph in not less than 10-point bold type, or a reasonable equivalent thereof, that states the following: “If you do not bring a court action to contest the proposed trust decanting (the proposed changes to the trust) within 59 days of this notice, you will lose your right to contest the decanting.” (h) The decanting power may be exercised before expiration of the notice period under subdivision (a) if all persons entitled to receive notice waive the period in a signed waiver.

(i) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under Section 19509 that asserts either of the following:

(1) An attempted exercise of the decanting power is ineffective because it did not comply with this part or was an abuse of discretion or breach of fiduciary duty.

(2) Section 19522 applies to the exercise of the decanting power.

(j) The notice required by this section shall be served by mail to the last known address, pursuant to Section 1215, or by personal delivery.

history: (History: Amended by Stats. 2023, Ch. 260, Sec. 23. (SB 345) Effective January 1, 2024.)


citation: PROB § 19508

text:
(a) Notice to a person with authority to represent and bind another person under this code or a first trust instrument has the same effect as notice given directly to the person represented.

(b) Consent of or waiver by a person with authority to represent and bind another person under this code or a first trust instrument is binding on the person represented unless the person represented objects to the representation before the consent or waiver otherwise would become effective.

(c) A person with authority to represent and bind another person under this code or a first trust instrument may file an application under Section 19509 on behalf of the person represented.

(d) A settlor may not represent or bind a beneficiary under this part.


citation: PROB § 19509

text:
(a) On application of an authorized fiduciary, a person entitled to notice under subdivision (c) of Section 19507, a beneficiary, or, with respect to a charitable interest, the Attorney General or other person that has standing to enforce the charitable interest, the court may do any of the following:

(1) Provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under this part and is consistent with the fiduciary duties of the authorized fiduciary.

(2) Appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under this part and to exercise the decanting power.

(3) Approve an exercise of the decanting power.

(4) Determine that a proposed or attempted exercise of the decanting power is ineffective because of either of the following:

(A) After applying Section 19522, the proposed or attempted exercise does not or did not comply with this part.

(B) The proposed or attempted exercise would be or was an abuse of the fiduciary’s discretion or a breach of fiduciary duty.

(5) Determine the extent to which Section 19522 applies to a prior exercise of the decanting power.

(6) Provide instructions to the trustee regarding the application of Section 19522 to a prior exercise of the decanting power.

(7) Order other relief to carry out the purposes of this part.

(b) If an application is made under subdivision (a), the burden is on the authorized fiduciary to establish that notice was given as required by Section 19507 and that the authorized fiduciary may exercise the decanting power.

(c) On application of an authorized fiduciary, the court may approve either or both of the following:

(1) An increase in the fiduciary’s compensation under Section 19516.

(2) A modification under Section 19518 of a provision granting a person the right to remove or replace the fiduciary.


citation: PROB § 19510

text: An exercise of the decanting power shall be made in a writing signed by an authorized fiduciary. The signed writing shall, directly or by reference to the notice required by Section 19507, identify the first trust and the second trust or trusts and state the property of the first trust being distributed to each second trust and the property, if any, that remains in the first trust.


citation: PROB § 19511

text:
(a) For purposes of this section:

(1) “Noncontingent right” means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. The term does not include a right held by a beneficiary if any person has discretion to distribute property subject to the right to any person other than the beneficiary or the beneficiary’s estate.

(2) “Presumptive remainder beneficiary” means a qualified beneficiary other than a current beneficiary.

(3) “Successor beneficiary” means a beneficiary that is not a qualified beneficiary on the date the beneficiary’s qualification is determined. The term does not include a person that is a beneficiary only because the person holds a nongeneral power of appointment.

(4) “Vested interest” means any of the following:

(A) A right to a mandatory distribution that is a noncontingent right as of the date of the exercise of the decanting power.

(B) A current and noncontingent right, annually or more frequently, to a mandatory distribution of income, a specified dollar amount, or a percentage of value of some or all of the trust property.

(C) A current and noncontingent right, annually or more frequently, to withdraw income, a specified dollar amount, or a percentage of value of some or all of the trust property.

(D) A presently exercisable general power of appointment.

(E) A right to receive an ascertainable part of the trust property on the trust’s termination that is not subject to the exercise of discretion or to the occurrence of a specified event that is not certain to occur.

(b) Subject to subdivision (c) and Section 19514, an authorized fiduciary that has expanded distributive discretion over the principal of a first trust for the benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.

(c) Subject to Section 19513, in an exercise of the decanting power under this section, a second trust may not do any of the following:

(1) Include as a current beneficiary a person that is not a current beneficiary of the first trust, except as otherwise provided in subdivision (d).

(2) Include as a presumptive remainder beneficiary or successor beneficiary a person that is not a current beneficiary, presumptive remainder beneficiary, or successor beneficiary of the first trust, except as otherwise provided in subdivision (d).

(3) Reduce or eliminate a vested interest.

(d) Subject to paragraph (3) of subdivision (c) and Section 19514, in an exercise of the decanting power under this section, a second trust may be a trust created or administered under the law of any jurisdiction and may do each of the following:

(1) Retain a power of appointment granted in the first trust.

(2) Omit a power of appointment granted in the first trust, other than a presently exercisable general power of appointment.

(3) Create or modify a power of appointment if the powerholder is a current beneficiary of the first trust and the authorized fiduciary has expanded distributive discretion to distribute principal to the beneficiary.

(4) Create or modify a power of appointment if the powerholder is a presumptive remainder beneficiary or successor beneficiary of the first trust, but the exercise of the power may take effect only after the powerholder becomes, or would have become if then living, a current beneficiary.

(e) A power of appointment described in paragraphs (1) to (4), inclusive, of subdivision (d) may be general or nongeneral. The class of permissible appointees in favor of which the power may be exercised may be broader than, or different from, the beneficiaries of the first trust.

(f) If an authorized fiduciary has expanded distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the principal over which the authorized fiduciary has expanded distributive discretion.


citation: PROB § 19512

text:
(a) For purposes of this section, “limited distributive discretion” means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard.

(b) An authorized fiduciary that has limited distributive discretion over the principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.

(c) Under this section and subject to Section 19514, a second trust may be created or administered under the law of any jurisdiction. Under this section, the second trusts, in the aggregate, shall grant each beneficiary of the first trust beneficial interests which are substantially similar to the beneficial interests of the beneficiary in the first trust. For purposes of this subdivision, “substantially similar” means that there is no material change in a beneficiary’s beneficial interests, except as provided in subdivision (d).

(d) A power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to a power under the first trust to make a distribution directly to the beneficiary. A distribution is for the benefit of a beneficiary if it satisfies any of the following conditions:

(1) The distribution is applied for the benefit of the beneficiary.

(2) The beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated, and the distribution is made as permitted under this code.

(3) The distribution is made as permitted under the terms of the first trust instrument and the second trust instrument for the benefit of the beneficiary.

(e) If an authorized fiduciary has limited distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the principal over which the authorized fiduciary has limited distributive discretion.


citation: PROB § 19513

text:
(a) For purposes of this section:

(1) “Beneficiary with a disability” means a beneficiary of a first trust who the special needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated legally incompetent.

(2) “Governmental benefits” means financial aid or services from a state, federal, or other public agency.

(3) “Special needs fiduciary” means, with respect to a trust that has a beneficiary with a disability, any of the following:

(A) A trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the principal of a first trust to one or more current beneficiaries.

(B) If no trustee or fiduciary has discretion under subparagraph (A), a trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the income of the first trust to one or more current beneficiaries.

(C) If no trustee or fiduciary has discretion under subparagraphs (A) and (B), a trustee or other fiduciary, other than a settlor, that is required to distribute part or all of the income or principal of the first trust to one or more current beneficiaries.

(4) “Special needs trust” means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits.

(b) A special needs fiduciary may exercise the decanting power under Section 19511 over the principal of a first trust as if the fiduciary had authority to distribute principal to a beneficiary with a disability subject to expanded distributive discretion if both of the following conditions are satisfied:

(1) A second trust is a special needs trust that benefits the beneficiary with a disability.

(2) The special needs fiduciary determines that exercise of the decanting power will further the purposes of the first trust.

(c) In an exercise of the decanting power under this section, all of the following rules apply:

(1) Notwithstanding paragraph (2) of subdivision (c) of Section 19511, the interest in the second trust of a beneficiary with a disability may fulfill either of the following:

(A) Be a pooled trust as defined by Medicaid law for the benefit of the beneficiary with a disability under Section 1396p(d)(4)(C) of the Public Health and Welfare Code (42 U.S.C. Sec. 1396p(d)(4)(C)).

(B) Contain payback provisions complying with reimbursement requirements of Medicaid law under Section 1396p(d)(4)(A) of the Public Health and Welfare Code (42 U.S.C. Sec. 1396p(d)(4)(A)).

(2) Paragraph (3) of subdivision (c) of Section 19511 does not apply to the interests of the beneficiary with a disability.

(3) Except as affected by any change to the interests of the beneficiary with a disability, the second trust, or if there are two or more second trusts, the second trusts in the aggregate, shall grant each other beneficiary of the first trust beneficial interests in the second trusts which are substantially similar to the beneficiary’s beneficial interests in the first trust.


citation: PROB § 19514

text:
(a) For purposes of this section:

(1) “Determinable charitable interest” means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time and that is unconditional or will be held solely for charitable purposes.

(2) “Unconditional” means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the United States Internal Revenue Code of 1986 on the date of the distribution, if the charitable organization meets the requirement on the date of determination.

(b) If a first trust contains a determinable charitable interest, the Attorney General has the rights of a qualified beneficiary and may represent and bind the charitable interest.

(c) If a first trust contains a charitable interest, the second trust or trusts may not do any of the following:

(1) Diminish the charitable interest.

(2) Diminish the interest of an identified charitable organization that holds the charitable interest.

(3) Alter any charitable purpose stated in the first trust instrument.

(4) Alter any condition or restriction related to the charitable interest.

(d) If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of subdivision (c).

(e) If a first trust contains a determinable charitable interest, the second trust or trusts that include a charitable interest pursuant to subdivision (c) shall be administered under the law of this state unless any of the following occur:

(1) The Attorney General, after receiving notice under Section 19507, fails to object in a signed writing delivered to the authorized fiduciary within the notice period.

(2) The Attorney General consents in a signed writing to the second trust or trusts being administered under the law of another jurisdiction.

(3) The court approves the exercise of the decanting power.

(f) This part does not limit the powers and duties of the Attorney General under law of this state other than this part.


citation: PROB § 19515

text:
(a) An authorized fiduciary may not exercise the decanting power to the extent the first trust instrument expressly prohibits exercise of either of the following:

(1) The decanting power.

(2) A power granted by state law to the fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.

(b) Exercise of the decanting power is subject to any restriction in the first trust instrument that expressly applies to exercise of either of the following:

(1) The decanting power.

(2) A power granted by state law to a fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.

(c) A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary’s interest does not preclude exercise of the decanting power.

(d) Subject to subdivisions (a) and (b), an authorized fiduciary may exercise the decanting power under this part even if the first trust instrument permits the authorized fiduciary or another person to modify the first trust instrument or to distribute part or all of the principal of the first trust to another trust.

(e) If a first trust instrument contains an express prohibition described in subdivision (a) or an express restriction described in subdivision (b), the authorized fiduciary shall include that provision or restriction in the second trust instrument.


citation: PROB § 19516

text:
(a) If a first trust instrument specifies an authorized fiduciary’s compensation, the fiduciary may not exercise the decanting power to increase the fiduciary’s compensation above the specified compensation unless either of the following occurs:

(1) All qualified beneficiaries of the second trust consent to the increase in a signed writing.

(2) The increase is approved by the court.

(b) If a first trust instrument does not specify an authorized fiduciary’s compensation, the fiduciary may not exercise the decanting power to increase the fiduciary’s compensation above the compensation permitted by this code unless either of the following occurs:

(1) All qualified beneficiaries of the second trust consent to the increase in a signed writing.

(2) The increase is approved by the court.

(c) (1) A change in an authorized fiduciary’s compensation which is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciary’s compensation for purposes of subdivisions (a) and (b).

(2) For purposes of this subdivision, an incidental change to an authorized fiduciary’s compensation includes, but is not limited to, an increase in the compensation of the authorized fiduciary for either of the following reasons:

(A) The second trust lasts longer than the first trust.

(B) The second trust has a greater value than the first trust.


citation: PROB § 19517

text:
(a) Except as otherwise provided in this section, a second trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first trust instrument.

(b) A second trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the first trust for any liability or claim that would have been payable from the first trust if the decanting power had not been exercised.

(c) A second trust instrument may not reduce fiduciary liability in the aggregate.

(d) Subject to subdivision (c), a second trust instrument may reallocate fiduciary powers among fiduciaries as permitted by the law of this state other than this part.


citation: PROB § 19518

text:
An authorized fiduciary may not exercise the decanting power to modify a provision in a first trust instrument granting another person power to remove or replace the fiduciary unless any of the following occurs:

(a) The person holding the power consents to the modification in a signed writing and the modification applies only to the person.

(b) The person holding the power and the qualified beneficiaries of the second trust consent to the modification in a signed writing and the modification grants a substantially similar power to another person.

(c) The court approves the modification and the modification grants a substantially similar power to another person.


citation: PROB § 19519

text:
(a) For purposes of this section:

(1) “Grantor trust” means a trust as to which a settlor of a first trust is considered the owner under Sections 671 to 677, inclusive, or Section 679 of the Internal Revenue Code (26 U.S.C. Secs. 671 to 677, 679).

(2) “Nongrantor trust” means a trust that is not a grantor trust.

(3) “Qualified benefits property” means property subject to the minimum distribution requirements of Section 401(a)(9) of the Internal Revenue Code (26 U.S.C. Sec. 401(a)(9)), and any applicable regulations, or to any similar requirements that refer to Section 401(a)(9) of the Internal Revenue Code (26 U.S.C. Sec. 401(a)(9)) or the regulations.

(b) An exercise of the decanting power is subject to all of the following limitations:

(1) If a first trust contains property that qualified, or would have qualified but for provisions of this part other than this section, for a marital deduction for purposes of the gift or estate tax under the Internal Revenue Code or a state gift, estate, or inheritance tax, the second trust instrument shall not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.

(2) If the first trust contains property that qualified, or would have qualified but for provisions of this part other than this section, for a charitable deduction for purposes of the income, gift, or estate tax under the Internal Revenue Code or a state income, gift, estate, or inheritance tax, the second trust instrument shall not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.

(3) If the first trust contains property that qualified, or would have qualified but for provisions of this part other than this section, for the exclusion from the gift tax described in Section 2503(b) of the Internal Revenue Code (26 U.S.C. Sec. 2503(b)), the second trust instrument shall not include or omit a term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under Section 2503(b) of the Internal Revenue Code (26 U.S.C. Sec. 2503(b)). If the first trust contains property that qualified, or would have qualified but for provisions of this part other than this section, for the exclusion from the gift tax described in Section 2503(b) of the Internal Revenue Code (26 U.S.C. Sec. 2503(b)) by application of Section 2503(c) of the Internal Revenue Code (26 U.S.C. Sec. 2503(c)), the second trust instrument shall not include or omit a term that, if included or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under Section 2503(c) of the Internal Revenue Code (26 U.S.C. Sec. 2503(c)).

(4) If the property of the first trust includes shares of stock in an S-corporation, as defined in Section 1361 of the Internal Revenue Code (26 U.S.C. Sec. 1361) and the first trust is, or but for provisions of this part other than this section would be, a permitted shareholder under any provision of Section 1361 of the Internal Revenue Code (26 U.S.C. Sec. 1361), an authorized fiduciary may exercise the power with respect to part or all of the S-corporation stock only if any second trust receiving the stock is a permitted shareholder under Section 1361(c)(2) of the Internal Revenue Code (26 U.S.C. Sec. 1361(c)(2)). If the property of the first trust includes shares of stock in an S-corporation and the first trust is, or but for provisions of this part other than this section would be, a qualified subchapter-S trust within the meaning of Section 1361(d) of the Internal Revenue Code (26 U.S.C. Sec. 1361(d)), the second trust instrument shall not include or omit a term that prevents the second trust from qualifying as a qualified subchapter-S trust.

(5) If the first trust contains property that qualified, or would have qualified but for provisions of this part other than this section, for a zero inclusion ratio for purposes of the generation-skipping transfer tax under Section 2642(c) of the Internal Revenue Code (26 U.S.C. Sec. 2642(c)), the second trust instrument shall not include or omit a term that, if included in or omitted from the first trust instrument, would have prevented the transfer to the first trust from qualifying for a zero inclusion ratio under Section 2642(c) of the Internal Revenue Code (26 U.S.C. Sec. 2642(c)).

(6) If the first trust is directly or indirectly the beneficiary of qualified benefits property, the second trust instrument may not include or omit any term that, if included in or omitted from the first trust instrument, would have increased the minimum distributions required with respect to the qualified benefits property under Section 401(a)(9) of the Internal Revenue Code (26 U.S.C. Sec. 401(a)(9)) and any applicable regulations, or any similar requirements that refer to Section 401(a)(9) of the Internal Revenue Code (26 U.S.C. Sec. 401(a)(9)) or the regulations. If an attempted exercise of the decanting power violates the preceding sentence, the trustee is deemed to have held the qualified benefits property and any reinvested distributions of the property as a separate share from the date of the exercise of the power and Section 19522 applies to the separate share.

(7) If the first trust qualifies as a grantor trust because of the application of Section 672(f)(2)(A) of the Internal Revenue Code (26 U.S.C. Sec. 672(f)(2)(A)), the second trust may not include or omit a term that, if included in or omitted from the first trust instrument, would have prevented the first trust from qualifying under Section 672(f)(2)(A) of the Internal Revenue Code (26 U.S.C. Sec. 672(f)(2)(A)).

(8) In this paragraph, “tax benefit” means a federal or state tax deduction, exemption, exclusion, or other benefit not otherwise listed in this section, except for a benefit arising from being a grantor trust. Subject to paragraph (9), a second trust instrument may not include or omit a term that, if included in or omitted from the first trust instrument, would have prevented qualification for a tax benefit if both of the following apply:

(A) The first trust instrument expressly indicates an intent to qualify for the benefit or the first trust instrument clearly is designed to enable the first trust to qualify for the benefit.

(B) The transfer of property held by the first trust or the first trust qualified, or, but for provisions of this part other than this section, would have qualified for the tax benefit.

(9) (A) Subject to paragraph (4), and except as otherwise provided in paragraph (7), the second trust may be a nongrantor trust, even if the first trust is a grantor trust.

(B) Subject to paragraph (4), and except as otherwise provided in paragraph (10), the second trust may be a grantor trust, even if the first trust is a nongrantor trust.

(10) An authorized fiduciary may not exercise the decanting power if a settlor objects in a signed writing delivered to the fiduciary within the notice period and either of the following conditions is satisfied:

(A) The first trust and a second trust are both grantor trusts, in whole or in part, the first trust grants the settlor or another person the power to cause the first trust to cease to be a grantor trust, and the second trust does not grant an equivalent power to the settlor or other person.

(B) The first trust is a nongrantor trust and a second trust is a grantor trust, in whole or in part, with respect to the settlor, unless either of the following apply:

(i) The settlor has the power at all times to cause the second trust to cease to be a grantor trust.

(ii) The first trust instrument contains a provision granting the settlor or another person a power that would cause the first trust to cease to be a grantor trust and the second trust instrument contains the same provision.


citation: PROB § 19520

text:
(a) Subject to subdivision (b), a second trust may have a duration that is the same as, or different from, the duration of the first trust.

(b) To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust is subject to any rules governing maximum perpetuity, accumulation, or suspension of the power of alienation that apply to property of the first trust.


citation: PROB § 19521

text: An authorized fiduciary may exercise the decanting power whether or not under the first trust’s discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise.


citation: PROB § 19522

text:
(a) If exercise of the decanting power would be effective under this part, except that the second trust instrument in part does not comply with this part, the exercise of the power is effective and the following rules apply with respect to the principal of the second trust attributable to the exercise of the power:

(1) A provision in the second trust instrument that is not permitted under this part is void to the extent necessary to comply with this part.

(2) A provision required by this part to be in the second trust instrument, which is not contained in the instrument, is deemed to be included in the instrument to the extent necessary to comply with this part.

(b) If a trustee or other fiduciary of a second trust determines that subdivision (a) applies to a prior exercise of the decanting power, the fiduciary shall take corrective action consistent with the fiduciary’s duties.


citation: PROB § 19523

text:
(a) For purposes of this section:

(1) “Animal trust” means a trust or an interest in a trust described in Section 15212.

(2) “Protector” means either of the following:

(A) A person appointed in an animal trust to enforce the trust on behalf of the animal as described in subdivision (c) of Section 15212 or, if no person is appointed in the trust for that purpose, a person appointed by the court for that purpose.

(B) A nonprofit charitable corporation described in subdivision (e) of Section 15212 that has requested an accounting in writing.

(b) The decanting power may be exercised over an animal trust that has a protector to the extent the trust could be decanted under this part if each animal that benefits from the trust were an individual, if the protector consents in a signed writing to the exercise of the power.

(c) A protector for an animal has the rights under this part of a qualified beneficiary.

(d) Notwithstanding any other provision of this part, if a first trust is an animal trust, in an exercise of the decanting power, the second trust shall provide that trust property may be applied only to its intended purpose for the period the first trust benefited the animal.


citation: PROB § 19524

text: A reference in this code to a trust instrument or terms of the trust includes a second trust instrument and the terms of the second trust.


citation: PROB § 19525

text:
(a) For purposes of the law of this state other than this part and subject to subdivision (b), a settlor of a first trust is deemed to be the settlor of the second trust with respect to the portion of the principal of the first trust subject to the exercise of the decanting power.

(b) In determining settlor intent with respect to a second trust, the intent of a settlor of the first trust, a settlor of the second trust, and the authorized fiduciary may be considered.


citation: PROB § 19526

text:
(a) Except as otherwise provided in subdivision (c), if exercise of the decanting power was intended to distribute all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the second trust or trusts.

(b) Except as otherwise provided in subdivision (c), if exercise of the decanting power was intended to distribute less than all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust.

(c) An authorized fiduciary may provide in an exercise of the decanting power or by the terms of a second trust for disposition of later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power.


citation: PROB § 19527

text: A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.


citation: PROB § 19529

text: This part does not limit a trustee’s ability to petition for instructions or other approval under a trust pursuant to Chapter 3 (commencing with Section 17200) of Part 5 or to petition for modification of a trust pursuant to Chapter 3 (commencing with Section 15400) of Part 2.

history: (History: Amended by Stats. 2019, Ch. 497, Sec. 212. (AB 991) Effective January 1, 2020.)


citation: PROB § 19530

text: The provisions of this part are severable. If any provision of this part or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.


citation: PROB § 20100

text:
Except where the context otherwise requires, the following definitions shall govern the construction of this chapter:

(a) “Estate tax” means a tax imposed by any federal or California estate tax law, now existing or hereafter enacted, and includes interest and penalties on any deficiency.

(b) “Person interested in the estate” means any person, including a personal representative, entitled to receive, or who has received, from a decedent while alive or by reason of the death of the decedent any property or interest therein.

(c) “Personal representative” includes a guardian, conservator, trustee, or other person charged with the responsibility of paying the estate tax.

(d) “Property” means property included in the gross estate for federal estate tax purposes.

(e) “Value” means fair market value as determined for federal estate tax purposes.

history: (History: Enacted by Stats. 1990, Ch. 79.)

division: 10. PRORATION OF TAXES

chapter: 1. Proration of Estate Taxes

article: 1. General Provisions

path: 10. PRORATION OF TAXES > 1. Proration of Estate Taxes > 1. General Provisions


citation: PROB § 20101

text:
(a) This chapter does not apply to persons interested in the estate of a decedent who died before January 1, 1987.

(b) Notwithstanding the repeal of former Article 4a (commencing with Section 970) of Chapter 15 of Division 3 of the Probate Code by Chapter 783 of the Statutes of 1986, the provisions of that former article remain applicable where the decedent died before January 1, 1987. No inference as to the applicable law in effect before January 1, 1987, shall be drawn from the enactment of this chapter.

article: 1. General Provisions


citation: PROB § 20110

text:
(a) Except as provided in subdivision (b), any estate tax shall be equitably prorated among the persons interested in the estate in the manner prescribed in this article.

(b) This section does not apply:

(1) To the extent the decedent in a written inter vivos or testamentary instrument disposing of property specifically directs that the property be applied to the satisfaction of an estate tax or that an estate tax be prorated to the property in the manner provided in the instrument. As used in this paragraph, an “instrument disposing of property” includes an instrument that creates an interest in property or an amendment to an instrument that disposes of property or creates an interest in property.

(2) Where federal law directs otherwise. If federal law directs the manner of proration of the federal estate tax, the California estate tax shall be prorated in the same manner.

article: 2. Proration

path: 10. PRORATION OF TAXES > 1. Proration of Estate Taxes > 2. Proration


citation: PROB § 20111

text: The proration required by this article shall be made in the proportion that the value of the property received by each person interested in the estate bears to the total value of all property received by all persons interested in the estate, subject to the provisions of this article.

article: 2. Proration


citation: PROB § 20112

text:
(a) In making a proration of the federal estate tax, allowances shall be made for credits allowed for state or foreign death taxes in determining the federal tax payable and for exemptions and deductions allowed for the purpose of determining the taxable estate.

(b) In making a proration of the California estate tax, allowances shall be made for (1) credits (other than the credit for state death taxes paid) allowed by the federal estate tax law and attributable to property located in this state, and (2) exemptions and deductions allowed by the federal estate tax law for the purpose of determining the taxable estate attributable to property located in this state.

(c) In making a proration of an estate tax, interest on extension of taxes and interest and penalties on any deficiency shall be charged to equitably reflect the benefits and burdens of the extension or deficiency and of any tax deductions associated with the interest and penalties.

article: 2. Proration


citation: PROB § 20113

text: If a trust is created, or other provision made whereby a person is given an interest in the income of, an estate for years or for life in, or other temporary interest in, any property, the estate tax on both the temporary interest and on the remainder thereafter shall be charged against and paid out of the corpus of the property without apportionment between remainders and temporary estates.

article: 2. Proration


citation: PROB § 20114

text:
(a) As used in this section, “qualified real property” means qualified real property as defined in Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A).

(b) If an election is made pursuant to Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A), the proration shall be based upon the amount of federal estate tax that would be payable but for the election. The amount of the reduction in federal estate tax resulting from an election pursuant to Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A) shall reduce the tax that is otherwise attributable to the qualified real property that is the subject of the election. If the tax that is otherwise attributable to the qualified real property is reduced to zero pursuant to this subdivision, any excess amount of reduction shall reduce the tax otherwise payable with respect to the other property, this amount to be equitably prorated in accordance with Section 20111.

(c) If additional federal estate tax is imposed under subsection (c) of Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A) by reason of early disposition or cessation of qualified use, the additional tax shall be a charge against the portion of the qualified real property to which the additional tax is attributable, and shall be equitably prorated among the persons interested in that portion of the qualified real property in proportion to their interests.

article: 2. Proration


text:
(a) As used in this section:

(1) A reference to Section 4980A of the Internal Revenue Code means Section 4980A of the federal Internal Revenue Code of 1986 as amended (26 U.S.C. Sec. 4980A) and also means former Section 4981A of the federal Internal Revenue Code of 1986.

(2) “Excess retirement accumulation” has the meaning given it in paragraph (3) of subsection (d) of Section 4980A.

(b) If the federal estate tax is increased under subsection (d) of Section 4980A of the Internal Revenue Code, the amount of the increase shall be a charge against the persons who receive the excess retirement accumulation that gives rise to the increase, and shall be equitably prorated among all persons who receive interests in qualified employer plans and individual retirement plans to which the excess retirement accumulation is attributable.

history: (History: Amended by Stats. 2004, Ch. 183, Sec. 281. Effective January 1, 2005.)

article: 2. Proration


citation: PROB § 20115

text: Where the payment of any portion of the federal estate tax is extended under the provisions of the federal estate tax law, the amount of extended tax shall be a charge against the persons who receive the specific property that gives rise to the extension.

article: 2. Proration


citation: PROB § 20116

text:
(a) If all property does not come into the possession of the personal representative, the personal representative is entitled, and has the duty, to recover from the persons interested in the estate the proportionate amount of the estate tax with which the persons are chargeable under this chapter.

(b) If the personal representative cannot collect from any person interested in the estate the amount of an estate tax apportioned to the person, the amount not recoverable shall be equitably prorated among the other persons interested in the estate who are subject to proration.

article: 2. Proration


citation: PROB § 20117

text:
(a) If a person is charged with or required to pay an estate tax greater than the amount prorated to that person because another person does not pay the amount of estate tax prorated to the other person, the person charged with or required to pay the greater amount has a right of reimbursement against the other person.

(b) The right of reimbursement may be enforced through the personal representative in the discretion of the personal representative, or may be enforced directly by the person charged with or required to pay the greater amount, and for the purpose of direct enforcement the person is subrogated to the position of the personal representative.

(c) The personal representative or person who has a right of reimbursement may commence a proceeding to have a court determine the right of reimbursement. The provisions of Article 3 (commencing with Section 20120) shall govern the proceeding, with changes necessary to make the provisions appropriate for application to the proceeding, and the court order determining the right of reimbursement is an enforceable judgment.

article: 2. Proration


citation: PROB § 20120

text:
(a) The personal representative or any person interested in the estate may commence a proceeding to have a court determine the proration pursuant to this chapter.

(b) A proceeding under this article shall be commenced in the court in which the estate of the decedent was administered or, if no administration proceedings have been commmenced, in the superior court of any county in which the estate of the decedent may be administered.

(c) If proceedings for the administration of the decedent’s estate are pending, a proceeding under this article shall be combined with the administration proceedings. If a proceeding is commenced at any time before final distribution, there shall be no additional filing fee.

article: 3. Judicial Proceedings

path: 10. PRORATION OF TAXES > 1. Proration of Estate Taxes > 3. Judicial Proceedings


citation: PROB § 20121

text:
A proceeding under this article shall be commenced by filing a petition that sets forth all of the following information:

(a) The jurisdictional facts.

(b) Other facts necessary for the court to determine the proration of estate taxes.

article: 3. Judicial Proceedings


citation: PROB § 20122

text:
Not less than 30 days before the hearing, the petitioner shall do both of the following:

(a) Cause notice of the hearing and a copy of the petition to be delivered pursuant to Section 1215 to the personal representative and to each person interested in the estate against whom prorated amounts may be charged pursuant to paragraph (1) of subdivision (a) of Section 20123.

(b) Cause a summons and a copy of the petition to be served on each person interested in the estate who may be directed to make payment of prorated amounts pursuant to paragraph (2) of subdivision (a) of Section 20123. The summons shall be in the form and shall be served in the manner prescribed in Title 5 (commencing with Section 410.10) of Part 2 of the Code of Civil Procedure.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 106. (AB 976) Effective January 1, 2018.)

article: 3. Judicial Proceedings


citation: PROB § 20123

text:
(a) The court, upon making a determination as provided in this article, shall make an order:

(1) Directing the personal representative to charge the prorated amounts against the persons against whom an estate tax has been prorated insofar as the personal representative is in possession of any property or interests of the persons against whom the charge may be made.

(2) Summarily directing all other persons against whom an estate tax has been prorated to make payment of the prorated amounts to the personal representative.

(b) A court order made under this section is a judgment that may be enforced against the persons against whom an estate tax has been prorated.

history: (History: Amended by Stats. 1997, Ch. 724, Sec. 31. Effective January 1, 1998.)

article: 3. Judicial Proceedings


citation: PROB § 20124

text: Upon petition by the personal representative or any person interested in the estate, the court shall modify an order made pursuant to this article whenever it appears that the amount of estate tax as actually determined is different from the amount of estate tax on which the court based the order.

article: 3. Judicial Proceedings


citation: PROB § 20125

text:
(a) A personal representative acting or resident in another state may commence an action in this state to recover from a person interested in the estate, who either is resident in this state or owns property in this state, the amount of the federal estate tax, or an estate tax or death duty payable to another state, apportioned to the person.

(b) The action shall be commenced in the superior court of any county in which administration of the estate of the decedent would be proper or, if none, in which any defendant resides.

(c) For purposes of the action the apportionment by the court having jurisdiction of the administration of the decedent’s estate in the other state is prima facie correct.

article: 3. Judicial Proceedings


citation: PROB § 20200

text:
Except where the context otherwise requires, the following definitions shall govern the construction of this chapter:

(a) “Generation-skipping transfer tax” means a tax imposed by any federal or California generation-skipping transfer tax law, now existing or hereafter enacted, and includes interest and penalties on any deficiency.

(b) “Property” means property on which a generation-skipping transfer tax is imposed.

(c) “Transferee” means any person who receives, who is deemed to receive, or who is the beneficiary of, any property.

(d) “Trustee” means any person who is a trustee within the meaning of the federal generation-skipping transfer tax law, or who is otherwise required to pay a generation-skipping transfer tax.

(e) “Value” means fair market value as determined for generation-skippi ng transfer tax purposes.

article: 1. General Provisions

path: 10. PRORATION OF TAXES > 2. Proration of Taxes on Generation-Skipping Transfer > 1. General Provisions


citation: PROB § 20201

text:
(a) This chapter does not apply to transferees of property of a decedent who died before January 1, 1987.

(b) No inference as to the applicable law in effect before January 1, 1987, shall be drawn from the enactment of this chapter.

chapter: 2. Proration of Taxes on Generation-Skipping Transfer

article: 1. General Provisions


citation: PROB § 20210

text:
(a) Except as provided in subdivision (b), any generation-skipping transfer tax shall be equitably prorated among the transferees in the manner prescribed in this article.

(b) This section does not apply:

(1) To the extent the transferor in a written instrument transferring property specifically directs that the property be applied to the satisfaction of a generation-skipping transfer tax or that a generation-skipping transfer tax be prorated to the property in the manner provided in the instrument.

(2) Where federal law directs otherwise. If federal law directs the manner of proration of the federal generation-skipping transfer tax, the California generation-skipping transfer tax shall be prorated in the same manner.

article: 2. Proration

path: 10. PRORATION OF TAXES > 2. Proration of Taxes on Generation-Skipping Transfer > 2. Proration


citation: PROB § 20211

text: The proration required by this article shall be made in the proportion that the value of the property received by each transferee bears to the total value of all property received by all transferees, subject to the provisions of this article.

article: 2. Proration


citation: PROB § 20212

text:
In making a proration required by this article:

(a) Allowances shall be made for credits, exemptions, and deductions allowed for the purpose of determining the tax payable.

(b) Interest and penalties on any deficiency shall be charged to equitably reflect the benefits and burdens of the deficiency and of any tax deductions associated with the interest and penalties.

article: 2. Proration


citation: PROB § 20213

text: If a trust is created or other provision made whereby a transferee is given an interest in income, or an estate for years or for life, or another temporary interest in property, the tax on both the temporary interest and other interests in the property shall be charged against, and paid out of, the corpus of the property without apportionment between the temporary and other interests.

article: 2. Proration


citation: PROB § 20214

text:
(a) If all property does not come into the possession of the trustee, the trustee is entitled, and has the duty, to recover from the transferees, the proportionate amount of the tax with which the transferees are chargeable under this chapter.

(b) If the trustee cannot collect from any transferee the amount of tax apportioned to the transferee, the amount not recoverable shall be equitably prorated among the other transferees who are subject to proration.

article: 2. Proration


citation: PROB § 20215

text:
(a) If a person is charged with, or required to pay, a generation-skipping transfer tax greater than the amount prorated to that person because another person does not pay the amount of generation-skipping transfer tax prorated to the other person, the person charged with or required to pay the greater amount has a right of reimbursement against the other person.

(b) The right of reimbursement may be enforced through the trustee in the discretion of the trustee, or may be enforced directly by the person charged with, or required to pay, the greater amount and, for the purpose of direct enforcement, the person is subrogated to the position of the trustee.

(c) The trustee or person who has a right of reimbursement may commence a proceeding to have a court determine the right of reimbursement. The provisions of Article 3 (commencing with Section 20220) shall govern the proceeding, with changes necessary to make the provisions appropriate for application to the proceeding, and the court order determining the right of reimbursement is an enforceable judgment.

article: 2. Proration


citation: PROB § 20220

text:
(a) The trustee or any transferee may commence a proceeding to have a court determine the proration pursuant to this chapter.

(b) A proceeding under this article shall be commenced in the court in which the estate of the decedent was administered or, if no administration proceedings have been commenced, in the superior court of any county in which the estate of the decedent may be administered.

(c) If proceedings for the administration of the decedent’s estate are pending, a proceeding under this article shall be combined with the administration proceedings. If a proceeding is commenced at any time before final distribution, there shall be no additional filing fee.

article: 3. Judicial Proceedings

path: 10. PRORATION OF TAXES > 2. Proration of Taxes on Generation-Skipping Transfer > 3. Judicial Proceedings


citation: PROB § 20221

text:
A proceeding under this article shall be commenced by filing a petition that sets forth all of the following information:

(a) The jurisdictional facts.

(b) Other facts necessary for the court to determine the proration of the generation-skipping transfer tax.

article: 3. Judicial Proceedings


citation: PROB § 20222

text:
Not less than 30 days before the hearing the petitioner shall do both of the following:

(a) Cause notice of the hearing and a copy of the petition to be delivered pursuant to Section 1215 to the trustee and each transferee against whom prorated amounts may be charged pursuant to paragraph (1) of subdivision (a) of Section 20223.

(b) Cause a summons and a copy of the petition to be served on each transferee who may be directed to make payment of prorated amounts pursuant to paragraph (2) of subdivision (a) of Section 20223. The summons shall be in the form and shall be served in the manner prescribed in Title 5 (commencing with Section 410.10) of Part 2 of the Code of Civil Procedure.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 107. (AB 976) Effective January 1, 2018.)

article: 3. Judicial Proceedings


citation: PROB § 20223

text:
(a) The court, upon making a determination as provided in this article, shall make an order:

(1) Directing the trustee to charge the prorated amounts against the transferees against whom the generation-skipping transfer tax has been prorated insofar as the trustee is in possession of any property or interests of the transferees against whom the charge may be made.

(2) Summarily directing all other transferees against whom the generation-skipping transfer tax has been prorated to make payment of the prorated amounts to the trustee.

(b) A court order made under this section is a judgment that may be enforced against the persons against whom a generation-skipping transfer tax has been prorated.

history: (History: Amended by Stats. 1997, Ch. 724, Sec. 32. Effective January 1, 1998.)

article: 3. Judicial Proceedings


citation: PROB § 20224

text: Upon petition by the trustee or any transferee, the court shall modify an order made pursuant to this article whenever it appears that the amount of generation-skipping transfer tax as actually determined is different from the amount of tax on which the court based the order.

article: 3. Judicial Proceedings


citation: PROB § 20225

text:
(a) A trustee acting or resident in another state may commence an action in this state to recover from a transferee, who either is resident in this state or owns property in this state, the amount of the federal generation-skipping transfer tax, or a generation-skipping transfer tax payable to another state, apportioned to the person.

(b) The action shall be commenced in the superior court of any county in which administration of the estate of the decedent would be proper or, if none, in which any defendant resides.

(c) For purposes of the action an apportionment by the court having jurisdiction of the administration of the decedent’s estate in the other state is prima facie correct.

article: 3. Judicial Proceedings


citation: PROB § 21101

text: Unless the provision or context otherwise requires, this part applies to a will, trust, deed, and any other instrument.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 10. Effective January 1, 2003.)

chapter: 1. General Provisions

path: 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS > 1. RULES FOR INTERPRETATION OF INSTRUMENTS > 1. General Provisions


citation: PROB § 21102

text:
(a) The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.

(b) The rules of construction in this part apply where the intention of the transferor is not indicated by the instrument.

(c) Nothing in this section limits the use of extrinsic evidence, to the extent otherwise authorized by law, to determine the intention of the transferor.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 11. Effective January 1, 2003.)

division: 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS

part: 1. RULES FOR INTERPRETATION OF INSTRUMENTS


citation: PROB § 21103

text: The meaning and legal effect of a disposition in an instrument is determined by the local law of a particular state selected by the transferor in the instrument unless the application of that law is contrary to the rights of the surviving spouse to community and quasi-community property, to any other public policy of this state applicable to the disposition, or, in the case of a will, to Part 3 (commencing with Section 6500) of Division 6.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 12. Effective January 1, 2003.)


citation: PROB § 21104

text: As used in this part, “at-death transfer” means a transfer that is revocable during the lifetime of the transferor, but does not include a joint tenancy or joint account with right of survivorship.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 13. Effective January 1, 2003.)


citation: PROB § 21105

text: Except as otherwise provided in Sections 641 and 642, a will passes all property the testator owns at death, including property acquired after execution of the will.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 14. Effective January 1, 2003.)


citation: PROB § 21107

text: If an instrument directs the conversion of real property into money at the transferor’s death, the real property and its proceeds shall be deemed personal property from the time of the transferor’s death.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 16. Effective January 1, 2003.)


citation: PROB § 21108

text: The law of this state does not include (a) the common law rule of worthier title that a transferor cannot devise an interest to his or her own heirs or (b) a presumption or rule of interpretation that a transferor does not intend, by a transfer to his or her own heirs or next of kin, to transfer an interest to them. The meaning of a transfer of a legal or equitable interest to a transferor’s own heirs or next of kin, however designated, shall be determined by the general rules applicable to the interpretation of instruments.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 17. Effective January 1, 2003.)


citation: PROB § 21109

text:
(a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument.

(b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 18. Effective January 1, 2003.)


citation: PROB § 21110

text:
(a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee’s place in the manner provided in Section 240. A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee’s death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed.

(b) The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for a specified period of time after the death of the transferor constitutes a contrary intention. A requirement that the initial transferee survive until a future time that is related to the probate of the transferor’s will or administration of the estate of the transferor constitutes a contrary intention.

(c) As used in this section, “transferee” means a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor, but does not mean a spouse of the transferor.

history: (History: Amended by Stats. 2018, Ch. 71, Sec. 1. (AB 1960) Effective January 1, 2019.)


citation: PROB § 21111

text:
(a) Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows:

(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.

(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.

(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent’s estate.

(b) Subject to Section 21110, if a residuary gift or a future interest is transferred to two or more persons and the share of a transferee fails for any reason, and no alternative disposition is provided, the share passes to the other transferees in proportion to their other interest in the residuary gift or the future interest.

(c) A transfer of “all my estate” or words of similar import is a residuary gift for purposes of this section.

(d) If failure of a future interest results in an intestacy, the property passes to the heirs of the transferor determined pursuant to Section 21114.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 20. Effective January 1, 2003.)


citation: PROB § 21112

text: A condition in a transfer of a present or future interest that refers to a person’s death “with” or “without” issue, or to a person’s “having” or “leaving” issue or no issue, or a condition based on words of similar import, is construed to refer to that person’s being dead at the time the transfer takes effect in enjoyment and to that person either having or not having, as the case may be, issue who are alive at the time of enjoyment.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 21. Effective January 1, 2003.)


citation: PROB § 21114

text:
(a) If a statute or an instrument provides for transfer of a present or future interest to, or creates a present or future interest in, a designated person’s “heirs,” “heirs at law,” “next of kin,” “relatives,” or “family,” or words of similar import, the transfer is to the persons, including the state under Section 6800, and in the shares that would succeed to the designated person’s intestate estate under the intestate succession law of the transferor’s domicile, if the designated person died when the transfer is to take effect in enjoyment. If the designated person’s surviving spouse is living but is remarried at the time the transfer is to take effect in enjoyment, the surviving spouse is not an heir of the designated person for purposes of this section.

(b) As used in this section, “designated person” includes the transferor.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 23. Effective January 1, 2003.)


citation: PROB § 21115

text:
(a) Except as provided in subdivision (b), halfbloods, adopted persons, persons born out of wedlock, stepchildren, foster children, and the issue of these persons when appropriate to the class, are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession.

(b) In construing a transfer by a transferor who is not the natural parent, a person born to the natural parent shall not be considered the child of that parent unless the person lived while a minor as a regular member of the household of the natural parent or of that parent’s parent, brother, sister, spouse, or surviving spouse. In construing a transfer by a transferor who is not the adoptive parent, a person adopted by the adoptive parent shall not be considered the child of that parent unless the person lived while a minor (either before or after the adoption) as a regular member of the household of the adopting parent or of that parent’s parent, brother, sister, or surviving spouse.

(c) Subdivisions (a) and (b) shall also apply in determining:

(1) Persons who would be kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor under Section 21110.

(2) Persons to be included as issue of a deceased transferee under Section 21110.

(3) Persons who would be the transferor’s or other designated person’s heirs under Section 21114.

(d) The rules for determining intestate succession under this section are those in effect at the time the transfer is to take effect in enjoyment.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 24. Effective January 1, 2003.)


citation: PROB § 21117

text:
At-death transfers are classified as follows:

(a) A specific gift is a transfer of specifically identifiable property.

(b) A general gift is a transfer from the general assets of the transferor that does not give specific property.

(c) A demonstrative gift is a general gift that specifies the fund or property from which the transfer is primarily to be made.

(d) A general pecuniary gift is a pecuniary gift within the meaning of Section 21118.

(e) An annuity is a general pecuniary gift that is payable periodically.

(f) A residuary gift is a transfer of property that remains after all specific and general gifts have been satisfied.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 26. Effective January 1, 2003.)


citation: PROB § 21118

text:
(a) If an instrument authorizes a fiduciary to satisfy a pecuniary gift wholly or partly by distribution of property other than money, property selected for that purpose shall be valued at its fair market value on the date of distribution, unless the instrument expressly provides otherwise. If the instrument permits the fiduciary to value the property selected for distribution as of a date other than the date of distribution, then, unless the instrument expressly provides otherwise, the property selected by the fiduciary for that purpose shall fairly reflect net appreciation and depreciation (occurring between the valuation date and the date of distribution) in all of the assets from which the distribution could have been made.

(b) As used in this section, “pecuniary gift” means a transfer of property made in an instrument that either is expressly stated as a fixed dollar amount or is a dollar amount determinable by the provisions of the instrument.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 27. Effective January 1, 2003.)


citation: PROB § 21120

text: The words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative. Preference is to be given to an interpretation of an instrument that will prevent intestacy or failure of a transfer, rather than one that will result in an intestacy or failure of a transfer.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 28. Effective January 1, 2003.)

path: 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS > 1. RULES FOR INTERPRETATION OF INSTRUMENTS > 2. Ascertaining Meaning of Language Used in the Instrument


citation: PROB § 21121

text: All parts of an instrument are to be construed in relation to each other and so as, if possible, to form a consistent whole. If the meaning of any part of an instrument is ambiguous or doubtful, it may be explained by any reference to or recital of that part in another part of the instrument.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 29. Effective January 1, 2003.)

chapter: 2. Ascertaining Meaning of Language Used in the Instrument


citation: PROB § 21122

text: The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained. Technical words are not necessary to give effect to a disposition in an instrument. Technical words are to be considered as having been used in their technical sense unless (a) the context clearly indicates a contrary intention or (b) it satisfactorily appears that the instrument was drawn solely by the transferor and that the transferor was unacquainted with the technical sense.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 30. Effective January 1, 2003.)


citation: PROB § 21131

text: A specific gift passes the property transferred subject to any mortgage, deed of trust, or other lien existing at the date of death, without right of exoneration, regardless of a general directive to pay debts contained in the instrument.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 31. Effective January 1, 2003.)

chapter: 3. Exoneration; Ademption

path: 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS > 1. RULES FOR INTERPRETATION OF INSTRUMENTS > 3. Exoneration; Ademption