citation: PROB § 331

text:
(a) This section applies only to a safe deposit box in a financial institution held by the decedent in the decedent’s sole name, or held by the decedent and others where all are deceased. Nothing in this section affects the rights of a surviving coholder.

(b) A person who has a key to the safe deposit box may, before letters have been issued, obtain access to the safe deposit box only for the purposes specified in this section by providing the financial institution with both of the following:

(1) Proof of the decedent’s death. Proof shall be provided by a certified copy of the decedent’s death certificate or by a written statement of death from the coroner, treating physician, or hospital or institution where the decedent died.

(2) Reasonable proof of the identity of the person seeking access. Reasonable proof of identity is provided for the purpose of this paragraph if the requirements of Section 13104 are satisfied.

(c) The financial institution has no duty to inquire into the truth of any statement, declaration, certificate, affidavit, or document offered as proof of the decedent’s death or proof of identity of the person seeking access.

(d) If the person seeking access has satisfied the requirements of subdivision (b), the financial institution shall do all of the following:

(1) Keep a record of the identity of the person.

(2) Permit the person to open the safe deposit box under the supervision of an officer or employee of the financial institution, and to make an inventory of its contents.

(3) Make a photocopy of all wills and trust instruments removed from the safe deposit box, and keep the photocopy in the safe deposit box until the contents of the box are removed by the personal representative of the estate or other legally authorized person. The financial institution may charge the person given access a reasonable fee for photocopying.

(4) Permit the person given access to remove instructions for the disposition of the decedent’s remains, and, after a photocopy is made, to remove the wills and trust instruments.

(e) The person given access shall deliver all wills found in the safe deposit box to the clerk of the superior court and deliver a copy pursuant to Section 1215 to the person named in the will as executor or beneficiary as provided in Section 8200.

(f) Except as provided in subdivision (d), the person given access shall not remove any of the contents of the decedent’s safe deposit box.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 6. (AB 976) Effective January 1, 2018.)

part: 10. IMMEDIATE STEPS CONCERNING DECEDENT'S TANGIBLE PERSONAL PROPERTY AND SAFE DEPOSIT BOX


kind: section

code: PROB

citation: PROB § 350

text: This part may be cited as the Fiduciaries’ Wartime Substitution Law.

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

division: 2. GENERAL PROVISIONS

chapter: 1. General Provisions

article: 1. Short Title and Definitions

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 1. General Provisions > 1. Short Title and Definitions


citation: PROB § 351

text: Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.

part: 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW

article: 1. Short Title and Definitions


citation: PROB § 352

text: “Consultant” means a person, other than a trustee, designated in a trust to advise or direct the trustee concerning the trust, or whose consent or approval is required for a purchase, sale, exchange, or other transaction by the trustee, and includes a settlor who reserves the power of a consultant.

article: 1. Short Title and Definitions


citation: PROB § 353

text: “Estate” means a trust estate, a decedent’s estate, a guardianship or conservatorship estate, or other property that is the subject of a donative transfer.

article: 1. Short Title and Definitions


citation: PROB § 354

text: “Interested person” means, in addition to the meaning given that term in Section 48, a person having a property right in or claim against a guardianship or conservatorship estate or other estate that may be affected by the proceeding.

article: 1. Short Title and Definitions


citation: PROB § 355

text: “Original fiduciary” means a fiduciary who is replaced by a substitute fiduciary or who makes a delegation of power under this part.

article: 1. Short Title and Definitions


citation: PROB § 356

text:
A fiduciary or consultant is engaged in war service for the purpose of this part in each of the following cases:

(a) Where the person is a member of the armed forces of the United States or like forces of any nation with which the United States is allied or associated in time of war, including all of the following:

(1) Members of the Army, Navy, Marine Corps, Air Force, and Coast Guard.

(2) Members of the Public Health Service detailed by proper authority for duty with the armed forces.

(3) Members of all other organizations or services recognized by the laws of the United States as a part of or auxiliary to the armed forces of the United States.

(b) Where the person has been accepted for and is awaiting induction into the armed forces, or is receiving training or education under government supervision preliminary to induction into any of these forces, in time of war.

(c) Where the person is engaged, outside the 50 states of the United States, in any work in connection with a governmental agency of the United States or with the American Red Cross or any other body with similar objects operating with the approval and sanction of the government of the United States or of any nation with which the United States is allied or associated in time of war.

(d) Where the person is engaged in time of war in service on any ship of United States registry.

(e) Where the person is interned or a prisoner of war in a foreign country or in the United States or any possession or dependency of the United States.

(f) Where the person is absent from the 50 states of the United States and, due to war conditions, is unable to return freely at his or her own volition.

(g) Where the person is engaged in any service in the United States or abroad arising out of or connected with a state of war that the court having jurisdiction of the estate finds prevents the person from giving proper attention to his or her duties.

article: 1. Short Title and Definitions


citation: PROB § 360

text: This part applies to all fiduciaries and consultants, whether appointed or acting before, on, or after July 1, 1989.

article: 2. Scope of Part

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 1. General Provisions > 2. Scope of Part


citation: PROB § 361

text: This part does not apply to the extent an otherwise valid provision in an instrument provides a different or contrary rule or is otherwise inconsistent with this part.

article: 2. Scope of Part


citation: PROB § 365

text: Proceedings under this part are in the court having jurisdiction over the estate or, if none, any court in which jurisdiction of the estate is proper.

article: 3. Procedural Provisions

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 1. General Provisions > 3. Procedural Provisions


citation: PROB § 366

text:
Notice of a hearing under this part shall be delivered pursuant to Section 1215 at least 15 days before the hearing to each fiduciary and consultant, and to the following persons:

(a) In the case of a trust, to each known beneficiary, subject to the provisions of Chapter 2 (commencing with Section 15800) of Part 3 of Division 9.

(b) In the case of a decedent’s estate, as provided in Section 1220, to both of the following:

(1) Each known heir whose interest in the estate would be affected by the proceedings.

(2) Each known devisee whose interest in the estate would be affected by the proceedings.

(c) In the case of a guardianship or conservatorship estate, as provided in Section 1460.

(d) In other cases, to any additional interested persons required by the court to receive notice.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 7. (AB 976) Effective January 1, 2018.)

article: 3. Procedural Provisions


citation: PROB § 370

text:
If a fiduciary is engaged in war service, on petition of the fiduciary, a cofiduciary, or an interested person, the court may do any one or more of the following:

(a) Appoint a substitute fiduciary. If there is a qualified and acting cofiduciary, the court is not required to appoint a substitute fiduciary but may vest in the cofiduciary the powers of the original fiduciary engaged in war service.

(b) Order a suspension of the powers and duties of the original fiduciary for the period the original fiduciary is engaged in war service and until further order of the court.

(c) Order an account by the original fiduciary.

chapter: 2. Appointment of Substitute Fiduciary

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 2. Appointment of Substitute Fiduciary


citation: PROB § 371

text: A substitute fiduciary has all the powers, including discretionary powers, that the original fiduciary had, except powers that the court determines are purely personal to the original fiduciary, and is subject to the same duties as the original fiduciary.


citation: PROB § 372

text: Except as otherwise ordered by the court, a substitute fiduciary shall give a bond in the manner and to the extent provided by law for the original fiduciary.


citation: PROB § 373

text: After the expiration of an original fiduciary’s war service, if the estate has not been closed, the original fiduciary, on petition, is entitled to reinstatement as fiduciary. On reinstatement, the substitute fiduciary may, in the discretion of the court, be removed and may be discharged on conditions prescribed by the court.


citation: PROB § 374

text: A substitute fiduciary or an original fiduciary reinstated under Section 373 is not liable for the acts or omissions of the predecessor fiduciary.


citation: PROB § 380

text:
(a) A fiduciary who is or will be engaged in war service may delegate the fiduciary’s powers, including discretionary powers, to a fiduciary who is not engaged in war service. Delegation may be made for the period during which the original fiduciary is engaged in war service and not to exceed six months following the expiration of that period.

(b) Approval of the court, on petition of the original fiduciary, the delegate, or an interested person, is required for delegation.

chapter: 3. Delegation of Powers

article: 1. Delegation by Fiduciary

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 3. Delegation of Powers > 1. Delegation by Fiduciary


citation: PROB § 381

text: The right of delegation does not exist to the extent the court determines that powers to be delegated are purely personal to the original fiduciary.

article: 1. Delegation by Fiduciary


citation: PROB § 382

text: After the expiration of the original fiduciary’s war service, the court may, on petition of the original fiduciary, authorize the original fiduciary to resume the exercise of the fiduciary functions, and the delegated powers cease.

article: 1. Delegation by Fiduciary


citation: PROB § 383

text: The original fiduciary is not liable for the acts or omissions of the delegate.

article: 1. Delegation by Fiduciary


citation: PROB § 385

text:
(a) A consultant who is or will be engaged in war service may delegate the powers of the consultant, including discretionary powers, to a coconsultant who is not engaged in war service, or to the trustee administering the trust. The procedure for delegation by a fiduciary governs delegation by a consultant.

(b) The right of delegation does not exist to the extent the court determines that powers to be delegated are purely personal to the consultant. These powers are suspended until their exercise is resumed pursuant to this article.

article: 2. Delegation by Consultant

path: 2. GENERAL PROVISIONS > 11. FIDUCIARIES' WARTIME SUBSTITUTION LAW > 3. Delegation of Powers > 2. Delegation by Consultant


citation: PROB § 386

text:
If a consultant who is engaged in war service does not delegate the consultant’s powers, the court, on petition of the trustee or an interested person, may do either of the following:

(a) Suspend the consultant’s powers for the period of the consultant’s war service and not to exceed six months following the expiration of that period.

(b) Confer the powers, except discretionary powers that the court determines are purely personal to the consultant, on a coconsultant designated in the trust, the trustee, or any other qualified person.

article: 2. Delegation by Consultant


citation: PROB § 387

text: If a consultant has delegated or the court has suspended the powers of the consultant, the court may, on petition by the consultant within six months following the expiration of the period of the consultant’s war service, authorize the consultant to resume the exercise of the consultant’s functions. All powers delegated to or conferred on other persons thereupon cease.

article: 2. Delegation by Consultant


citation: PROB § 388

text: A consultant who delegates powers under this article is not liable for the acts or omissions of the delegate.

article: 2. Delegation by Consultant


citation: PROB § 400

text:
(a) The Controller shall appoint at least one person in each county to act as a probate referee for the county.

(b) If there are fewer than three qualified applicants to serve in a county, the Controller may designate a probate referee from another county or make an interim appointment, to serve until the vacancy has been filled by a qualified applicant.

part: 12. PROBATE REFEREES

chapter: 1. Appointment and Revocation

path: 2. GENERAL PROVISIONS > 12. PROBATE REFEREES > 1. Appointment and Revocation


citation: PROB § 401

text:
(a) Appointment shall be from among persons passing a qualification examination. A person who passes the examination is eligible for appointment for a period of five years from the date of the examination.

(b) Appointment shall be on the basis of merit without regard to sex, race, religious creed, color, national origin, ancestry, marital status, or political affiliation.


citation: PROB § 402

text:
(a) The qualification examination for applicants for appointment to act as a probate referee shall be held at times and places within the state determined by the Controller.

(b) The Controller may contract with another agency to administer the qualification examination. Administration of the examination shall include:

(1) Development of standards for passage of the examination.

(2) Preparation of examination questions.

(3) Giving the examination.

(4) Scoring the examination.

(c) Each applicant shall pay a fee for taking the qualification examination. The agency administering the examination shall transmit to the Controller a list of candidates who have received a passing score in the examination. The list is a public record.


citation: PROB § 403

text:
(a) The term of office of a probate referee is four years, expiring June 30. A person may be appointed to complete the unexpired term of office of a probate referee whose appointment is revoked or is otherwise terminated. For a period of five years from the date of expiration of the term of office, a person who had been appointed to act as a probate referee is eligible for reappointment.

(b) If the Controller increases the number of probate referees in a county, the Controller shall stagger the terms of the new appointees so that one-quarter, or as close to one-quarter as possible, of the terms of the probate referees in that county expire on June 30 of each succeeding year.


citation: PROB § 404

text:
(a) The Controller shall establish and may amend standards of training, performance, and ethics of probate referees. The standards are a public record.

(b) The Controller may revoke the appointment of a person to act as a probate referee for noncompliance with any standard of training, performance, or ethics established under subdivision (a). The Controller may revoke an appointment under this subdivision without notice or a hearing, but the revocation is subject to review by writ of mandate in a court of competent jurisdiction.


citation: PROB § 405

text: Notwithstanding Section 404, the Controller may, at the Controller’s pleasure, revoke the appointment of a person to act as a probate referee. Under this section, the Controller may revoke the appointment of not more than 10 percent of the probate referees in each county in any one calendar year, but may revoke the appointment of at least one probate referee in each county in any one calendar year.


citation: PROB § 406

text:
(a) The authority of a person to act as a probate referee ceases immediately upon expiration of the person’s term of office, revocation of the person’s appointment, or other termination pursuant to law.

(b) Upon cessation of authority of a person to act as a probate referee, the Controller shall notify the superior court of the county for which the probate referee was appointed. Upon receipt of notice, or if it otherwise comes to the attention of the court that the authority of a person to act as a probate referee has ceased, the court shall reassign any estate for which the person had been designated as probate referee to another probate referee.


citation: PROB § 407

text:
(a) As used in this section, “prohibited political activity” means directly or indirectly soliciting, receiving, or contributing, or being in any manner involved in soliciting, receiving, or contributing, any of the following:

(1) An assessment, subscription, or contribution to any party, incumbent, committee, or candidate exceeding two hundred dollars ($200) in any one calendar year for any partisan public office of this state.

(2) An assessment, subscription, contribution, or political service in any amount for any campaign for the office of Controller.

(b) Upon a person’s appointment and thereafter in January of each year during the person’s tenure as a probate referee, the person shall file with the Controller a verified statement indicating whether the person has engaged in prohibited political activity during the preceding two calendar years.

(c) The Controller may not appoint or reappoint as a probate referee a person who within the preceding two calendar years has engaged in prohibited political activity, and any such appointment or reappointment is void and shall be revoked. The Controller shall revoke the appointment of a person who, during the person’s tenure as a probate referee, engages in prohibited political activity. However, all acts not otherwise invalid, performed by the person before revocation of the person’s appointment, are valid.

(d) A person shall not engage in prohibited political activity during the time the person is an applicant for appointment or reappointment, or during the person’s tenure as a probate referee. A violation of this subdivision is a misdemeanor.

(e) Subdivisions (a), (c), and (d) do not apply to any prohibited political activity that occurred before July 1, 1989, and the applicable law in effect before July 1, 1989, continues to apply. Subdivision (b) applies on July 1, 1989, to persons who apply for appointment on or after July 1, 1989. A person who applied for appointment or who was appointed before July 1, 1989, shall file the first statement required by subdivision (b) on or before July 1, 1989, and thereafter as prescribed in subdivision (b).


citation: PROB § 408

text: The appointment of a probate referee by the Controller before July 1, 1989, is not invalidated by the repeal of the law under which the appointment was made. Appointment of a probate referee before July 1, 1989, may be revoked under this chapter only if revocation would otherwise be proper under this chapter.


citation: PROB § 450

text: Upon designation by the court, the probate referee has all the powers of a referee of the superior court and all other powers provided in this chapter.

chapter: 2. Powers of Probate Referee

path: 2. GENERAL PROVISIONS > 12. PROBATE REFEREES > 2. Powers of Probate Referee


citation: PROB § 451

text:
(a) For the purpose of appraisal of property in the estate, the probate referee may require, and may issue a subpoena to compel, the appearance before the referee of the personal representative, guardian, conservator, or other fiduciary, an interested person, or any other person the referee has reason to believe has knowledge of the property.

(b) A subpoena issued under subdivision (a) is subject to the provisions of Chapter 6 (commencing with Section 2020.010) of Title 4 of Part 4 of the Code of Civil Procedure governing deposition subpoenas.

history: (History: Amended by Stats. 2004, Ch. 182, Sec. 52. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.)


citation: PROB § 452

text:
(a) The probate referee may:

(1) Examine and take the testimony under oath of a person appearing before the referee.

(2) Require, and issue a subpoena to compel, the person to produce any document in the person’s possession or control, concerning the value of any property in the estate.

(b) A subpoena issued under subdivision (a) is subject to the provisions of Chapter 6 (commencing with Section 2020.010) of Title 4 of Part 4 of the Code of Civil Procedure governing deposition subpoenas.

history: (History: Amended by Stats. 2004, Ch. 182, Sec. 53. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.)


citation: PROB § 453

text:
(a) On petition of a person required to appear before the probate referee pursuant to this chapter, the court may make a protective order to protect the person from annoyance, embarrassment, or oppression. The petitioner shall deliver pursuant to Section 1215 notice of the hearing on the petition to the probate referee and to the personal representative, guardian, conservator, or other fiduciary at least 15 days before the date set for the hearing. Any subpoena issued by the probate referee is stayed during the pendency of the petition.

(b) On petition of the probate referee, the court may make an order to show cause why a person who is required, but fails, to appear before the probate referee pursuant to this chapter, should not be compelled to do so. The probate referee shall deliver pursuant to Section 1215 notice of the hearing on the petition to the person at least 15 days before the date set for the hearing.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 8. (AB 976) Effective January 1, 2018.)


citation: PROB § 550

text:
(a) Subject to the provisions of this chapter, an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.

(b) The remedy provided in this chapter is cumulative and may be pursued concurrently with other remedies.

part: 13. LITIGATION INVOLVING DECEDENT

path: 2. GENERAL PROVISIONS > 13. LITIGATION INVOLVING DECEDENT > 1. Liability of Decedent Covered byInsurance


citation: PROB § 551

text: Notwithstanding Section 366.2 of the Code of Civil Procedure, if the limitations period otherwise applicable to the action has not expired at the time of the decedent’s death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable.

history: (History: Amended by Stats. 1992, Ch. 178, Sec. 30. Effective January 1, 1993.)

chapter: 1. Liability of Decedent Covered byInsurance


citation: PROB § 552

text:
(a) An action under this chapter shall name as the defendant, “Estate of (name of decedent), Deceased.” Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.

(b) On motion of an interested person, or on its own motion, the court in which the action is pending may, for good cause, order the appointment and substitution of a personal representative as the defendant.

(c) An action against the estate of the decedent under this chapter may be consolidated with an action against the personal representative.


citation: PROB § 553

text: The insurer may deny or otherwise contest its liability in an action under this chapter or by an independent action. Unless the personal representative is joined as a party, a judgment in the action under this chapter or in the independent action does not adjudicate rights by or against the estate.


citation: PROB § 554

text:
(a) Except as provided in subdivision (b), either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.

(b) Where the amount of damages sought in the action exceeds the coverage of the insurance, subdivision (a) does not apply if both of the following conditions are satisfied:

(1) The personal representative is joined as a party to the action.

(2) The plaintiff files a claim in compliance with Section 9390.

history: (History: Amended by Stats. 1990, Ch. 710, Sec. 3. Operative July 1, 1991, by Sec. 48 of Ch. 710.)


citation: PROB § 555

text:
(a) This chapter does not apply to an action commenced before July 1, 1989.

(b) The applicable law in effect before July 1, 1989, continues to apply to an action commenced before July 1, 1989, notwithstanding its repeal by Chapter 1199 of the Statutes of 1988.


citation: PROB § 600

text: Except to the extent that the common law rules governing powers of appointment are modified by statute, the common law as to powers of appointment is the law of this state.

history: (History: Added by Stats. 1992, Ch. 30, Sec. 2. Effective January 1, 1993.)

part: 14. POWERS OF APPOINTMENT

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 1. General Provisions


citation: PROB § 601

text: If the law existing at the time of the creation of a power of appointment and the law existing at the time of the release or exercise of the power of appointment or at the time of the assertion of a right given by this part differ, the law existing at the time of the release, exercise, or assertion of a right controls. Nothing in this section makes invalid a power of appointment created before July 1, 1970, that was valid under the law in existence at the time it was created.


citation: PROB § 610

text:
As used in this part:

(a) “Appointee” means the person in whose favor a power of appointment is exercised.

(b) “Appointive property” means the property or interest in property that is the subject of the power of appointment.

(c) “Creating instrument” means the deed, will, trust, or other writing or document that creates or reserves the power of appointment.

(d) “Donor” means the person who creates or reserves a power of appointment.

(e) “Permissible appointee” means a person in whose favor a power of appointment can be exercised.

(f) “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.

(g) “Powerholder” means the person to whom a power of appointment is given or in whose favor a power of appointment is reserved.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 1. (AB 2846) Effective January 1, 2017.)

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 2. Definitions; Classification of Powers of Appointment


citation: PROB § 611

text:
(a) A power of appointment is “general” only to the extent that it is exercisable in favor of the powerholder, the powerholder’s estate, the powerholder’s creditors, or creditors of the powerholder’s estate, whether or not it is exercisable in favor of others.

(b) A power to consume, invade, or appropriate property for the benefit of a person in discharge of the powerholder’s obligation of support that is limited by an ascertainable standard relating to the person’s health, education, support, or maintenance is not a general power of appointment.

(c) A power exercisable by the powerholder only in conjunction with a person having a substantial interest in the appointive property that is adverse to the exercise of the power in favor of the powerholder, the powerholder’s estate, the powerholder’s creditors, or creditors of the powerholder’s estate is not a general power of appointment.

(d) A power of appointment that is not “general” is “special.”

(e) A power of appointment may be general as to some appointive property, or an interest in or a specific portion of appointive property, and be special as to other appointive property.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 2. (AB 2846) Effective January 1, 2017.)

chapter: 2. Definitions; Classification of Powers of Appointment


citation: PROB § 612

text:
(a) A power of appointment is “testamentary” if it is exercisable only by a will.

(b) A power of appointment is “presently exercisable” at the time in question to the extent that an irrevocable appointment can be made.

(c) A power of appointment is “not presently exercisable” if it is “postponed.” A power of appointment is “postponed” in either of the following circumstances:

(1) The creating instrument provides that the power of appointment may be exercised only after a specified act or event occurs or a specified condition is met, and the act or event has not occurred or the condition has not been met.

(2) The creating instrument provides that an exercise of the power of appointment is revocable until a specified act or event occurs or a specified condition is met, and the act or event has not occurred or the condition has not been met.


citation: PROB § 613

text: A power of appointment is “imperative” where the creating instrument manifests an intent that the permissible appointees be benefited even if the powerholder fails to exercise the power. An imperative power can exist even though the powerholder has the privilege of selecting some and excluding others of the designated permissible appointees. All other powers of appointment are “discretionary.” The powerholder of a discretionary power is privileged to exercise, or not to exercise, the power as the powerholder chooses.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 3. (AB 2846) Effective January 1, 2017.)


citation: PROB § 620

text: A power of appointment can be created only by a donor having the capacity to transfer the interest in property to which the power relates.

chapter: 3. Creation of Powers of Appointment

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 3. Creation of Powers of Appointment


citation: PROB § 621

text:
(a) A power of appointment is created only if all of the following are satisfied:

(1) There is a creating instrument.

(2) The creating instrument is valid under applicable law.

(3) Except as provided in subdivision (b), the creating instrument transfers the appointive property.

(4) The terms of the creating instrument manifest the donor’s intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.

(b) Paragraph (3) of subdivision (a) does not apply to the creation of a power of appointment by the exercise of a power of appointment.

history: (History: Added by Stats. 2016, Ch. 81, Sec. 4. (AB 2846) Effective January 1, 2017.)


citation: PROB § 625

text:
(a) A power of appointment can be exercised only by a powerholder having the capacity to transfer the interest in property to which the power relates.

(b) Unless the creating instrument otherwise provides, a powerholder who is a minor may not exercise a power of appointment during minority.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 5. (AB 2846) Effective January 1, 2017.)

chapter: 4. Exercise of Powers of Appointment

article: 1. Donee’s Capacity

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 4. Exercise of Powers of Appointment > 1. Donee’s Capacity


citation: PROB § 630

text:
(a) Except as otherwise provided in this part, if the creating instrument specifies requirements as to the manner, time, and conditions of the exercise of a power of appointment, the power can be exercised only by complying with those requirements.

(b) Unless expressly prohibited by the creating instrument, a power stated to be exercisable by an inter vivos instrument is also exercisable by a written will.

article: 2. Scope of Donee’s Authority

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 4. Exercise of Powers of Appointment > 2. Scope of Donee’s Authority


citation: PROB § 631

text:
(a) Where an appointment does not satisfy the formal requirements specified in the creating instrument as provided in subdivision (a) of Section 630, the court may excuse compliance with the formal requirements and determine that exercise of the appointment was effective if both of the following requirements are satisfied:

(1) The appointment approximates the manner of appointment prescribed by the donor.

(2) The failure to satisfy the formal requirements does not defeat the accomplishment of a significant purpose of the donor.

(b) This section does not permit a court to excuse compliance with a specific reference requirement under Section 632.

article: 2. Scope of Donee’s Authority


citation: PROB § 632

text: If the creating instrument expressly directs that a power of appointment be exercised by an instrument that makes a specific reference to the power or to the instrument that created the power, the power can be exercised only by an instrument containing the required reference.

article: 2. Scope of Donee’s Authority


citation: PROB § 633

text:
(a) If the creating instrument requires the consent of the donor or other person to exercise a power of appointment, the power can only be exercised when the required consent is contained in the instrument of exercise or in a separate written instrument, signed in each case by the person whose consent is required.

(b) Unless expressly prohibited by the creating instrument:

(1) If a person whose consent is required dies, the power may be exercised by the powerholder without the consent of that person.

(2) If a person whose consent is required becomes legally incapable of consenting, the person’s guardian or conservator may consent to an exercise of the power.

(3) A consent may be given before or after the exercise of the power by the powerholder.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 6. (AB 2846) Effective January 1, 2017.)

article: 2. Scope of Donee’s Authority


citation: PROB § 634

text: A power of appointment created in favor of two or more powerholders can only be exercised when all of the powerholders unite in its exercise. If one or more of the powerholders dies, becomes legally incapable of exercising the power, or releases the power, the power may be exercised by the others, unless expressly prohibited by the creating instrument.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 7. (AB 2846) Effective January 1, 2017.)

article: 2. Scope of Donee’s Authority


citation: PROB § 635

text: Nothing in this chapter affects the power of a court of competent jurisdiction to remedy a defective exercise of an imperative power of appointment.

article: 2. Scope of Donee’s Authority


citation: PROB § 640

text:
(a) The exercise of a power of appointment requires a manifestation of the powerholder’s intent to exercise the power.

(b) A manifestation of the powerholder’s intent to exercise a power of appointment exists in any of the following circumstances:

(1) The powerholder declares, in substance, that the powerholder exercises specific powers or all the powers the powerholder has.

(2) The powerholder purports to transfer an interest in the appointive property that the powerholder would have no power to transfer except by virtue of the power.

(3) The powerholder makes a disposition that, when considered with reference to the property owned and the circumstances existing at the time of the disposition, manifests the powerholder’s understanding that the powerholder was disposing of the appointive property.

(c) The circumstances described in subdivision (b) are illustrative, not exclusive.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 8. (AB 2846) Effective January 1, 2017.)

article: 3. Donee’s Required Intent

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 4. Exercise of Powers of Appointment > 3. Donee’s Required Intent


citation: PROB § 641

text:
(a) A general residuary clause in a will, or a will making general disposition of all the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to exercise the power.

(b) This section applies in a case where the powerholder dies on or after July 1, 1982.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 9. (AB 2846) Effective January 1, 2017.)

article: 3. Donee’s Required Intent


citation: PROB § 642

text:
If a power of appointment existing at the powerholder’s death, but created after the execution of the powerholder’s will, is exercised by the will, the appointment is effective except in either of the following cases:

(a) The creating instrument manifests an intent that the power may not be exercised by a will previously executed.

(b) The will manifests an intent not to exercise a power subsequently acquired.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 10. (AB 2846) Effective January 1, 2017.)

article: 3. Donee’s Required Intent


citation: PROB § 650

text:
(a) The powerholder of a general power of appointment may make an appointment:

(1) Of all of the appointive property at one time, or several partial appointments at different times, where the power is exercisable inter vivos.

(2) Of present or future interests or both.

(3) Subject to conditions or charges.

(4) Subject to otherwise lawful restraints on the alienation of the appointed interest.

(5) In trust.

(6) Creating a new power of appointment.

(b) The listing in subdivision (a) is illustrative, not exclusive.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 11. (AB 2846) Effective January 1, 2017.)

article: 4. Types of Appointments

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 4. Exercise of Powers of Appointment > 4. Types of Appointments


citation: PROB § 651

text: Subject to the limitations imposed by the creating instrument, the powerholder of a special power may make any of the types of appointment permissible for the powerholder of a general power under Section 650.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 12. (AB 2846) Effective January 1, 2017.)

article: 4. Types of Appointments


citation: PROB § 652

text:
(a) Except as provided in subdivision (b), the powerholder of a special power of appointment may appoint the whole or any part of the appointive property to any one or more of the permissible appointees and exclude others.

(b) If the donor specifies either a minimum or maximum share or amount to be appointed to one or more of the permissible appointees, the exercise of the power must conform to the specification.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 13. (AB 2846) Effective January 1, 2017.)

article: 4. Types of Appointments


citation: PROB § 660

text:
(a) The powerholder of a power of appointment that is presently exercisable, whether general or special, can contract to make an appointment to the same extent that the powerholder could make an effective appointment.

(b) The powerholder of a power of appointment cannot contract to make an appointment while the power of appointment is not presently exercisable. If a promise to make an appointment under such a power is not performed, the promisee cannot obtain either specific performance or damages, but the promisee is not prevented from obtaining restitution of the value given by the promisee for the promise.

(c) Unless the creating instrument expressly provides that the powerholder may not contract to make an appointment while the power of appointment is not presently exercisable, subdivision (b) does not apply to the case where the donor and the powerholder are the same person. In this case, the powerholder can contract to make an appointment to the same extent that the powerholder could make an effective appointment if the power of appointment were presently exercisable.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 14. (AB 2846) Effective January 1, 2017.)

article: 5. Contracts to Appoint; Releases

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 4. Exercise of Powers of Appointment > 5. Contracts to Appoint; Releases


citation: PROB § 661

text:
(a) Unless the creating instrument otherwise provides, a general or special power of appointment that is a discretionary power, whether testamentary or otherwise, may be released, either with or without consideration, by a written instrument signed by the powerholder and delivered as provided in subdivision (c).

(b) A releasable power may be released with respect to the whole or any part of the appointive property and may also be released in such manner as to reduce or limit the permissible appointees. No partial release of a power shall be deemed to make imperative the remaining power that was not imperative before the release unless the instrument of release expressly so provides. No release of a power that is not presently exercisable is permissible where the donor designated persons or a class to take in default of the powerholder’s exercise of the power unless the release serves to benefit all persons designated as provided by the donor.

(c) A release shall be delivered as follows:

(1) If the creating instrument specifies a person to whom a release is to be delivered, the release shall be delivered to that person, but delivery need not be made as provided in this paragraph if the person cannot with due diligence be found.

(2) In a case where the property to which the power relates is held by a trustee, the release shall be delivered to the trustee.

(3) In a case not covered by paragraph (1) or (2), the release may be delivered to any of the following:

(A) A person, other than the powerholder, who could be adversely affected by the exercise of the power.

(B) The county recorder of the county in which the powerholder resides or in which the deed, will, or other instrument creating the power is filed.

(d) A release of a power of appointment that affects real property or obligations secured by real property shall be acknowledged and proved, and may be certified and recorded, in like manner and with like effect as grants of real property, and all statutory provisions relating to the recordation or nonrecordation of conveyances of real property and to the effect thereof apply to a release with like effect, without regard to the date when the release was delivered, if at all, pursuant to subdivision (c). Failure to deliver, pursuant to subdivision (c), a release that is recorded pursuant to this subdivision does not affect the validity of any transaction with respect to the real property or obligation secured thereby, and the general laws of this state on recording and its effect govern the transaction.

(e) This section does not impair the validity of a release made before July 1, 1970.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 15. (AB 2846) Effective January 1, 2017.)

article: 5. Contracts to Appoint; Releases


citation: PROB § 662

text:
(a) A release on behalf of a minor powerholder shall be made by the guardian of the estate of the minor pursuant to an order of court obtained under this section.

(b) The guardian or other interested person may file a petition with the court in which the guardianship of the estate proceeding is pending for an order of the court authorizing or requiring the guardian to release the ward’s powers as a powerholder or a power of appointment in whole or in part.

(c) Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1 of Division 4 to all of the following (other than the petitioner or persons joining in the petition):

(1) The persons required to be given notice under Chapter 3 (commencing with Section 1460) of Part 1 of Division 4.

(2) The donor of the power, if alive.

(3) The trustee, if the property to which the power relates is held by a trustee.

(4) Other persons as ordered by the court.

(d) After hearing, the court in its discretion may make an order authorizing or requiring the guardian to release on behalf of the ward a general or special power of appointment as permitted under Section 661, if the court determines, taking into consideration all the relevant circumstances, that the ward as a prudent person would make the release of the power of appointment if the ward had the capacity to do so.

(e) Nothing in this section imposes any duty on the guardian to file a petition under this section, and the guardian is not liable for failure to file a petition under this section.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 16. (AB 2846) Effective January 1, 2017.)

article: 5. Contracts to Appoint; Releases


citation: PROB § 670

text: An exercise of a power of appointment is not void solely because it is more extensive than authorized by the power, but is valid to the extent that the exercise was permissible under the terms of the power.

history: (History: Added by Stats. 1992, Ch. 30, Sec. 2. Effective January 1, 1993.)

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 5. Effect of Failure to Make Effective Appointment


citation: PROB § 671

text:
(a) Unless the creating instrument or the powerholder, in writing, manifests a contrary intent, where the powerholder dies without having exercised an imperative power of appointment either in whole or in part, the persons designated as permissible appointees take equally of the property not already appointed. Where the creating instrument establishes a minimum distribution requirement that is not satisfied by an equal division of the property not already appointed, the appointees who have received a partial appointment are required to return a pro rata portion of the property they would otherwise be entitled to receive in an amount sufficient to meet the minimum distribution requirement.

(b) Where an imperative power of appointment has been exercised defectively, either in whole or in part, its proper execution may be adjudged in favor of the person intended to be benefited by the defective exercise.

(c) Where an imperative power of appointment has been created so that it confers on a person a right to have the power exercised in the person’s favor, the proper exercise of the power can be compelled in favor of the person, or the person’s assigns, creditors, guardian, or conservator.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 17. (AB 2846) Effective January 1, 2017.)

chapter: 5. Effect of Failure to Make Effective Appointment


citation: PROB § 672

text:
(a) Except as provided in subdivision (b), if the powerholder of a discretionary power of appointment fails to appoint the property, releases the entire power, or makes an ineffective appointment, in whole or in part, the appointive property not effectively appointed passes to the person named by the donor as taker in default or, if there is none, reverts to the donor.

(b) If the powerholder of a general power of appointment makes an ineffective appointment, an implied alternative appointment to the powerholder’s estate may be found if the powerholder has manifested an intent that the appointive property be disposed of as property of the powerholder rather than as in default of appointment.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 18. (AB 2846) Effective January 1, 2017.)


citation: PROB § 673

text:
(a) Except as provided in subdivision (b), if an appointment by will or by instrument effective only at the death of the powerholder is ineffective because of the death of an appointee before the appointment becomes effective and the appointee leaves issue surviving the powerholder, the surviving issue of the appointee take the appointed property in the same manner as the appointee would have taken had the appointee survived the powerholder, except that the property passes only to persons who are permissible appointees, including appointees permitted under Section 674. If the surviving issue are all of the same degree of kinship to the deceased appointee, they take equally, but if of unequal degree, then those of more remote degree take in the manner provided in Section 240.

(b) This section does not apply if either the donor or powerholder manifests an intent that some other disposition of the appointive property shall be made.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 19. (AB 2846) Effective January 1, 2017.)


citation: PROB § 674

text:
(a) Unless the creating instrument expressly provides otherwise, if a permissible appointee dies before the exercise of a special power of appointment, the powerholder has the power to appoint to the issue of the deceased permissible appointee, whether or not the issue was included within the description of the permissible appointees, if the deceased permissible appointee was alive at the time of the execution of the creating instrument or was born thereafter.

(b) This section applies whether the special power of appointment is exercisable by inter vivos instrument, by will, or otherwise.

(c) This section applies to a case where the power of appointment is exercised on or after July 1, 1982, but does not affect the validity of any exercise of a power of appointment made before July 1, 1982.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 20. (AB 2846) Effective January 1, 2017.)


citation: PROB § 675

text: If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property shall be allocated in the permissible manner in accordance with the terms of the creating instrument and that best carries out the powerholder’s intent.

history: (History: Added by Stats. 2016, Ch. 81, Sec. 21. (AB 2846) Effective January 1, 2017.)


citation: PROB § 676

text: Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property.

history: (History: Added by Stats. 2016, Ch. 81, Sec. 22. (AB 2846) Effective January 1, 2017.)


citation: PROB § 680

text: The donor of a power of appointment cannot nullify or alter the rights given creditors of the powerholder by Sections 682, 683, and 684 by any language in the instrument creating the power.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 23. (AB 2846) Effective January 1, 2017.)

chapter: 6. Rights of Creditors

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 6. Rights of Creditors


citation: PROB § 681

text:
(a) Except as provided in subdivision (b), property covered by a special power of appointment is not subject to the claims of creditors of the powerholder or of the powerholder’s estate or to the expenses of the administration of the powerholder’s estate.

(b) Property subject to a special power of appointment shall be subject to the claims of creditors of the powerholder or of the powerholder’s estate or the expenses of administration of the powerholder’s estate under either of the following circumstances:

(1) To the extent that the powerholder owned the property and, reserving the special power, transferred the property in violation of the Uniform Voidable Transactions Act (Chapter 1 (commencing with Section 3439) of Title 2 of Part 2 of Division 4 of the Civil Code).

(2) If the initial gift in default of the exercise of the power is to the powerholder or the powerholder’s estate.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 24. (AB 2846) Effective January 1, 2017.)


citation: PROB § 682

text:
(a) To the extent that the property owned by the powerholder is inadequate to satisfy the claims of the powerholder’s creditors, property subject to a general power of appointment that is presently exercisable is subject to the claims to the same extent that it would be subject to the claims if the property were owned by the powerholder.

(b) Upon the death of the powerholder, to the extent that the powerholder’s estate is inadequate to satisfy the claims of creditors of the estate and the expenses of administration of the estate, property subject to a general testamentary power of appointment or to a general power of appointment that was presently exercisable at the time of the powerholder’s death is subject to the claims and expenses to the same extent that it would be subject to the claims and expenses if the property had been owned by the powerholder.

(c) This section applies whether or not the power of appointment has been exercised.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 25. (AB 2846) Effective January 1, 2017.)


citation: PROB § 683

text: Property subject to a general power of appointment created by the donor in the donor’s favor, whether or not presently exercisable, is subject to the claims of the donor’s creditors or the donor’s estate and to the expenses of the administration of the donor’s estate, except to the extent the donor effectively irrevocably appointed the property subject to the general power of appointment in favor of a person other than the donor or the donor’s estate.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 26. (AB 2846) Effective January 1, 2017.)


citation: PROB § 684

text: For the purposes of Sections 682 and 683, a person to whom the powerholder owes an obligation of support shall be considered a creditor of the powerholder to the extent that a legal obligation exists for the powerholder to provide the support.

history: (History: Amended by Stats. 2016, Ch. 81, Sec. 27. (AB 2846) Effective January 1, 2017.)


citation: PROB § 690

text: The statutory rule against perpetuities provided by Part 2 (commencing with Section 21200) of Division 11 applies to powers of appointment governed by this part.

chapter: 7. Rule Against Perpetuities

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 7. Rule Against Perpetuities


citation: PROB § 695

text:
(a) Unless the power to revoke is in the creating instrument or exists pursuant to Section 15400, the creation of a power of appointment is irrevocable.

(b) Unless made expressly irrevocable by the creating instrument or the instrument of exercise, an exercise of a power of appointment is revocable if the power to revoke exists pursuant to Section 15400 or so long as the interest in the appointive property, whether present or future, has not been transferred or become distributable pursuant to the appointment.

(c) Unless the power to revoke is reserved in the instrument releasing the power, a release of a power of appointment is irrevocable.

path: 2. GENERAL PROVISIONS > 14. POWERS OF APPOINTMENT > 8. Revocability of Creation, Exercise, or Release of Power of Appointment


citation: PROB § 700

text: Unless the provision or context otherwise requires, the definitions in this chapter govern the construction of this part.

history: (History: Added by Stats. 1993, Ch. 519, Sec. 4. Effective January 1, 1994.)

chapter: 1. Definitions

path: 2. GENERAL PROVISIONS > 15. DEPOSIT OF ESTATE PLANNING DOCUMENTS WITH ATTORNEY > 1. Definitions


citation: PROB § 701

text: “Attorney” means an individual licensed to practice law in this state.

part: 15. DEPOSIT OF ESTATE PLANNING DOCUMENTS WITH ATTORNEY


citation: PROB § 702

text: “Deposit” means delivery of a document by a depositor to an attorney for safekeeping or authorization by a depositor for an attorney to retain a document for safekeeping.


citation: PROB § 703

text: “Depositor” means a natural person who deposits the person’s document with an attorney.


citation: PROB § 704

text:
“Document” means any of the following:

(a) A signed original will, declaration of trust, trust amendment, or other document modifying a will or trust.

(b) A signed original power of attorney.

(c) A signed original nomination of conservator.

(d) Any other signed original instrument that the attorney and depositor agree in writing to make subject to this part.


citation: PROB § 710

text: If a document is deposited with an attorney, the attorney, and a successor attorney that accepts transfer of the document, shall use ordinary care for preservation of the document on and after July 1, 1994, whether or not consideration is given, and shall hold the document in a safe, vault, safe deposit box, or other secure place where it will be reasonably protected against loss or destruction.

chapter: 2. Duties and Liabilities of Attorney

path: 2. GENERAL PROVISIONS > 15. DEPOSIT OF ESTATE PLANNING DOCUMENTS WITH ATTORNEY > 2. Duties and Liabilities of Attorney


citation: PROB § 711

text:
If a document deposited with an attorney is lost or destroyed, the attorney shall give notice of the loss or destruction to the depositor by one of the following methods:

(a) By delivering pursuant to Section 1215 the notice to the depositor’s last known address.

(b) By the method most likely to give the depositor actual notice.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 9. (AB 976) Effective January 1, 2018.)


citation: PROB § 712

text: Notwithstanding failure of an attorney to satisfy the standard of care required by Section 710 or 716, the attorney is not liable for loss or destruction of the document if the depositor has actual notice of the loss or destruction and a reasonable opportunity to replace the document, and the attorney offers without charge either to assist the depositor in replacing the document, or to prepare a substantially similar document and assist in its execution.


citation: PROB § 713

text:
The acceptance by an attorney of a document for deposit imposes no duty on the attorney to do either of the following:

(a) Inquire into the content, validity, invalidity, or completeness of the document, or the correctness of any information in the document.

(b) Provide continuing legal services to the depositor or to any beneficiary under the document. This subdivision does not affect the duty, if any, of the drafter of the document to provide continuing legal services to any person.


citation: PROB § 714

text:
(a) If so provided in a written agreement signed by the depositor, an attorney may charge the depositor for compensation and expenses incurred in safekeeping or delivery of a document deposited with the attorney.

(b) No lien arises for the benefit of an attorney on a document deposited with the attorney, whether before or after its transfer, even if provided by agreement.


citation: PROB § 715

text:
An attorney may give written notice to a depositor, and obtain written acknowledgment from the depositor, in the following form:

NOTICE AND ACKNOWLEDGMENTTo:(Name of depositor)(Address)(City, state, and ZIP)(Electronic address)I have accepted your will or other estate planning document for safekeeping. I must use ordinary care for preservation of the document.

You must keep me advised of any change in your addresses shown above. If you do not and I cannot return this document to you when necessary, I will no longer be required to use ordinary care for preservation of the document, and I may transfer it to another attorney, or I may transfer it to the clerk of the superior court of the county of your last known domicile, and give notice of the transfer to the State Bar of California.(Signature of attorney)(Address of attorney)(City, state, and ZIP)(Electronic address)My addresses shown above are correct. I understand that I must keep you advised of any change in these addresses.Dated: (Signature of depositor)

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 10. (AB 976) Effective January 1, 2018.)


citation: PROB § 716

text: Notwithstanding Section 710, if an attorney has given written notice to the depositor, and has obtained written acknowledgment from the depositor, in substantially the form provided in Section 715, and the requirements of subdivision (a) of Section 732 are satisfied, the attorney, and a successor attorney that accepts transfer of a document, shall use at least slight care for preservation of a document deposited with the attorney.


citation: PROB § 720

text: A depositor may terminate a deposit on demand, in which case the attorney shall deliver the document to the depositor.

chapter: 3. Termination of Deposit

article: 1. Termination by Depositor

path: 2. GENERAL PROVISIONS > 15. DEPOSIT OF ESTATE PLANNING DOCUMENTS WITH ATTORNEY > 3. Termination of Deposit > 1. Termination by Depositor


citation: PROB § 730

text: An attorney with whom a document has been deposited, or to whom a document has been transferred pursuant to this article, may terminate the deposit only as provided in this article.

article: 2. Termination by Attorney

path: 2. GENERAL PROVISIONS > 15. DEPOSIT OF ESTATE PLANNING DOCUMENTS WITH ATTORNEY > 3. Termination of Deposit > 2. Termination by Attorney


citation: PROB § 731

text:
An attorney may terminate the deposit by one of the following methods:

(a) Personal delivery of the document to the depositor.

(b) Mailing the document to the depositor’s last known address, by registered or certified mail with return receipt requested, and receiving a signed receipt.

(c) The method agreed on by the depositor and attorney.

article: 2. Termination by Attorney


citation: PROB § 732

text:
(a) An attorney may terminate a deposit under this section if the attorney has delivered notice pursuant to Section 1215 to reclaim the document to the depositor’s last known address and the depositor has failed to reclaim the document within 90 days after delivery.

(b) Subject to subdivision (f), an attorney may terminate a deposit under this section by transferring the document to another attorney. All documents transferred under this subdivision shall be transferred to the same attorney.

(c) Subject to subdivision (f), if an attorney is deceased, lacks legal capacity, or is no longer an active member of the State Bar, a deposit may be terminated under this section by transferring the document to the clerk of the superior court of the county of the depositor’s last known domicile. The attorney shall advise the clerk that the document is being transferred pursuant to this section.

(d) An attorney may not accept a fee or compensation from a transferee for transferring a document under this section. An attorney may charge a fee for receiving a document under this section.

(e) Transfer of a document by an attorney under this section is not a waiver or breach of any privilege or confidentiality associated with the document, and is not a violation of the rules of professional conduct. If the document is privileged under Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code, the document remains privileged after the transfer.

(f) If the document is a will and the attorney has actual notice that the depositor has died, the attorney may terminate a deposit only as provided in Section 734.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 11. (AB 976) Effective January 1, 2018.)

article: 2. Termination by Attorney


citation: PROB § 733

text:
(a) An attorney transferring one or more documents under Section 732 shall deliver notice pursuant to Section 1215 of the transfer to the State Bar of California. The notice shall contain all of the following information:

(1) The name of the depositor.

(2) The date of the transfer.

(3) The name, address, and State Bar number of the transferring attorney.

(4) Whether any documents are transferred to an attorney, and the name, address, and State Bar number of the attorney to whom the documents are transferred.

(5) Whether any documents are transferred to a superior court clerk.

(b) The State Bar shall record only one notice of transfer for each transferring attorney. The State Bar shall prescribe the form for the notice of transfer. On request by any person, the State Bar shall give that person information in the notice of transfer. At its sole election, the State Bar may give the information orally or in writing.

history: (History: Amended by Stats. 2017, Ch. 319, Sec. 12. (AB 976) Effective January 1, 2018.)

article: 2. Termination by Attorney


citation: PROB § 734

text:
(a) In cases not governed by subdivision (b) or (c), after the death of the depositor an attorney may terminate a deposit by personal delivery of the document to the depositor’s personal representative.

(b) If the document is a will and the attorney has actual notice that the depositor has died but does not have actual notice that a personal representative has been appointed for the depositor, an attorney may terminate a deposit only as provided in Section 8200.

(c) If the document is a trust, after the death of the depositor an attorney may terminate a deposit by personal delivery of the document either to the depositor’s personal representative or to the trustee named in the document.

article: 2. Termination by Attorney


citation: PROB § 735

text:
(a) If the attorney is deceased or lacks legal capacity, a deposit may be terminated as provided in this article by the attorney’s law partner, by a shareholder of the attorney’s law corporation, or by a lawyer or nonlawyer employee of the attorney’s firm, partnership, or corporation.

(b) If the attorney lacks legal capacity and there is no person to act under subdivision (a), a deposit may be terminated by the conservator of the attorney’s estate or by an attorney in fact acting under a durable power of attorney. A conservator of the attorney’s estate may act without court approval.

(c) If the attorney is deceased and there is no person to act under subdivision (a), a deposit may be terminated by the attorney’s personal representative.

(d) If a person authorized under this section terminates a deposit as provided in Section 732, the person shall give the notice required by Section 733.

article: 2. Termination by Attorney


citation: PROB § 800

text: The court in proceedings under this code is a court of general jurisdiction and the court, or a judge of the court, has the same power and authority with respect to the proceedings as otherwise provided by law for a superior court, or a judge of the superior court, including, but not limited to, the matters authorized by Section 128 of the Code of Civil Procedure.

history: (History: Added by Stats. 1994, Ch. 806, Sec. 4. Effective January 1, 1995.)

part: 16. JURISDICTION

path: 2. GENERAL PROVISIONS > 16. JURISDICTION


citation: PROB § 801

text: The court, on its own motion or on the motion of any interested party, may order that an action or proceeding not specifically provided in this code be determined in a separate civil action. Upon the payment of the appropriate filing fees, the court may order transfer of the severed action or proceeding to the separate civil action.

history: (History: Added by Stats. 1996, Ch. 862, Sec. 2. Effective January 1, 1997.)


citation: PROB § 810

text:
The Legislature finds and declares the following:

(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.

(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.

(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.

history: (History: Amended by Stats. 1998, Ch. 581, Sec. 19. Effective January 1, 1999.)

part: 17. LEGAL MENTAL CAPACITY

path: 2. GENERAL PROVISIONS > 17. LEGAL MENTAL CAPACITY


citation: PROB § 811

text:
(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question:

(1) Alertness and attention, including, but not limited to, the following:

(A) Level of arousal or consciousness.

(B) Orientation to time, place, person, and situation.

(C) Ability to attend and concentrate.

(2) Information processing, including, but not limited to, the following:

(A) Short- and long-term memory, including immediate recall.

(B) Ability to understand or communicate with others, either verbally or otherwise.

(C) Recognition of familiar objects and familiar persons.

(D) Ability to understand and appreciate quantities.

(E) Ability to reason using abstract concepts.

(F) Ability to plan, organize, and carry out actions in one’s own rational self-interest.

(G) Ability to reason logically.

(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following:

(A) Severely disorganized thinking.

(B) Hallucinations.

(C) Delusions.

(D) Uncontrollable, repetitive, or intrusive thoughts.

(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances.

(b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.

(c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment.

(d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.

(e) This part applies only to the evidence that is presented to, and the findings that are made by, a court determining the capacity of a person to do a certain act or make a decision, including, but not limited to, making medical decisions. Nothing in this part shall affect the decisionmaking process set forth in Section 1418.8 of the Health and Safety Code, nor increase or decrease the burdens of documentation on, or potential liability of, health care providers who, outside the judicial context, determine the capacity of patients to make a medical decision.

history: (History: Amended by Stats. 1998, Ch. 581, Sec. 20. Effective January 1, 1999.)


citation: PROB § 812

text:
Except where otherwise provided by law, including, but not limited to, Section 813 and the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:

(a) The rights, duties, and responsibilities created by, or affected by the decision.

(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.

(c) The significant risks, benefits, and reasonable alternatives involved in the decision.

history: (History: Repealed and added by Stats. 1996, Ch. 178, Sec. 5. Effective January 1, 1997.)


citation: PROB § 813

text:
(a) For purposes of a judicial determination, a person has the capacity to give informed consent to a proposed medical treatment if the person is able to do all of the following:

(1) Respond knowingly and intelligently to queries about that medical treatment.

(2) Participate in that treatment decision by means of a rational thought process.

(3) Understand all of the following items of minimum basic medical treatment information with respect to that treatment:

(A) The nature and seriousness of the illness, disorder, or defect that the person has.

(B) The nature of the medical treatment that is being recommended by the person’s health care providers.

(C) The probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person’s health care providers, and the consequences of lack of treatment.

(D) The nature, risks, and benefits of any reasonable alternatives.

(b) A person who has the capacity to give informed consent to a proposed medical treatment also has the capacity to refuse consent to that treatment.

history: (History: Amended by Stats. 1996, Ch. 178, Sec. 6. Effective January 1, 1997.)


citation: PROB § 825

text: Except as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code.

history: (History: Added by Stats. 1999, Ch. 175, Sec. 1. Effective January 1, 2000.)

part: 18. RIGHT TO TRIAL

path: 2. GENERAL PROVISIONS > 18. RIGHT TO TRIAL


citation: PROB § 850

text:
(a) The following persons may file a petition requesting that the court make an order under this part:

(1) A guardian, conservator, or any claimant, in the following cases:

(A) Where the conservatee is bound by a contract in writing to convey real property or to transfer personal property, executed by the conservatee while competent or executed by the conservatee’s predecessor in interest, and the contract is one that can be specifically enforced.

(B) Where the minor has succeeded to the interest of a person bound by a contract in writing to convey real property or to transfer personal property, and the contract is one that can be specifically enforced.

(C) Where the guardian or conservator or the minor or conservatee is in possession of, or holds title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the minor or conservatee has a claim to real or personal property title to or possession of which is held by another.

(2) The personal representative or any interested person in any of the following cases:

(A) Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

(B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

(C)Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

(3) The trustee or any interested person in any of the following cases:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

(b) The petition shall set forth facts upon which the claim is based.

history: (History: Added by Stats. 2001, Ch. 49, Sec. 1. Effective January 1, 2002.)

path: 2. GENERAL PROVISIONS > 19. CONVEYANCE OR TRANSFER OF PROPERTY CLAIMED TO BELONG TO DECEDENT OR OTHER PERSON


citation: PROB § 851

text:
(a) At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable:

(1) The personal representative, conservator, guardian, or trustee as appropriate.

(2) Each person claiming an interest in, or having title to or possession of, the property.

(b) Except for those persons given notice pursuant to subdivision (a), notice of the hearing, together with a copy of the petition, shall be given as provided in Section 1220 if the matter concerns a decedent estate, as provided in Section 1460 if the matter concerns a conservatorship or guardianship, or as provided in Section 17203 if the matter concerns a trust to all of the following persons:

(1) Each person listed in Section 1220 along with any heir or devisee whose interest in the property may be affected by the petition if the matter concerns a decedent estate.

(2) Each person listed in Section 1460 if the matter concerns a conservatorship or guardianship.

(3) Each person listed in Section 17203 if the matter concerns a trust.

(c) A notice of hearing shall contain all of the following:

(1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.

(2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.

(3) A statement advising any person interested in the property that he or she may file a response to the petition.

(d) The court may not shorten the time for giving the notice of hearing under this section.

history: (History: Amended by Stats. 2017, Ch. 32, Sec. 1. (AB 308) Effective January 1, 2018.)

part: 19. CONVEYANCE OR TRANSFER OF PROPERTY CLAIMED TO BELONG TO DECEDENT OR OTHER PERSON


citation: PROB § 851.1

text: A petitioner in a proceeding under Section 850 may commence discovery upon any person who receives notice of the hearing pursuant to subdivision (a) of Section 851 in accordance with the same time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), except that the time periods shall commence to run upon service of the petition and notice of hearing. Nothing in this section shall alter when a respondent in such a proceeding may commence discovery.

history: (History: Added by Stats. 2017, Ch. 32, Sec. 2. (AB 308) Effective January 1, 2018.)


citation: PROB § 852

text: An interested person may request time for filing a response to the petition for discovery proceedings, or for other preparation for the hearing, and the court shall grant a continuance for a reasonable time for any of these purposes.


citation: PROB § 853

text: A person having or claiming title to or an interest in the property which is the subject of the petition may, at or prior to the hearing, object to the hearing of the petition if the petition is filed in a court which is not the proper court under any other provision of law for the trial of a civil action seeking the same relief and, if the objection is established, the court shall not grant the petition.


citation: PROB § 854

text: If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter this part and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. This section shall not apply if the court finds that the civil action was filed for the purpose of delay.

history: (History: Amended by Stats. 2023, Ch. 131, Sec. 166. (AB 1754) Effective January 1, 2024.)


citation: PROB § 855

text: An action brought under this part may include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of a petition filed under this part.


citation: PROB § 856

text: Except as provided in Sections 853 and 854, if the court is satisfied that a conveyance, transfer, or other order should be made, the court shall make an order authorizing and directing the personal representative or other fiduciary, or the person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief.


citation: PROB § 856.5

text: The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action.

history: (History: Added by Stats. 2001, Ch. 417, Sec. 3. Effective January 1, 2002.)


citation: PROB § 857

text:
(a) The order is prima facie evidence of the correctness of the proceedings and of the authority of the personal representative or other fiduciary or other person to make the conveyance or transfer.

(b) After entry of an order that the personal representative, other fiduciary, or other person execute a conveyance or transfer, the person entitled thereunder has the right to the possession of the property, and the right to hold the property, according to the terms of the order as if the property had been conveyed or transferred in accordance with the terms of the order.


citation: PROB § 858

text: If a proceeding has been brought under this part by a conservator on behalf of a conservatee, or by a guardian on behalf of a minor, and the conservatee or minor dies during the pendency of the proceeding, the personal representative of the conservatee or minor’s estate or other successor in interest may proceed with the matter and the existing proceeding shall not be dismissed on account of the death of the conservatee or minor.

history: (History: Amended by Stats. 2004, Ch. 183, Sec. 278. Effective January 1, 2005.)


citation: PROB § 859

text: If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.

history: (History: Amended by Stats. 2013, Ch. 99, Sec. 1. (AB 381) Effective January 1, 2014.)


citation: PROB § 870

text: This part shall be known, and may be cited, as the Revised Uniform Fiduciary Access to Digital Assets Act.

history: (History: Added by Stats. 2016, Ch. 551, Sec. 1. (AB 691) Effective January 1, 2017.)

path: 2. GENERAL PROVISIONS > 20. Revised Uniform Fiduciary Access to Digital Assets Act


citation: PROB § 871

text:
As used in this part, the following terms have the following meanings:

(a) “Account” means an arrangement under a terms-of-service agreement in which the custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.

(b) “Carries” means engages in the transmission of electronic communications.

(c) “Catalogue of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.

(d) “Content of an electronic communication” means information concerning the substance or meaning of the communication, which meets all of the following requirements:

(1) Has been sent or received by a user.

(2) Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public.

(3) Is not readily accessible to the public.

(e) (1) “Court” means the superior court presiding over the judicial proceedings that have been initiated under this code to administer the estate of the deceased user or, if none, the superior court sitting in the exercise of jurisdiction under this code in the county of the user’s domicile.

(2) The court, as defined in this section, shall have exclusive jurisdiction over proceedings brought under this part.

(f) “Custodian” means a person who carries, maintains, processes, receives, or stores a digital asset of a user.

(g) “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user.

(h) (1) “Digital asset” means an electronic record in which an individual has a right or interest.

(2) The term “digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

(i) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(j) “Electronic communication” has the same meaning as the definition in Section 2510(12) of Title 18 of the United States Code.

(k) “Electronic communication service” means a custodian who provides to a user the ability to send or receive an electronic communication.

(l) “Fiduciary” means an original, additional, or successor personal representative, conservator, agent, or trustee.

(m) “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases, or other items with like characteristics.

(n) “Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.

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

(p) “Personal representative” means an executor, administrator, special administrator, or person who performs substantially the same function under any other law.

(q) “Power of attorney” means a record that grants an agent authority to act in the place of the principal.

(r) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.

(s) “Remote-computing service” means a custodian who provides to a user computer processing services or the storage of digital assets by means of an electronic communications system as defined in Section 2510(14) of Title 18 of the United States Code.

(t) “Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.

(u) (1) “Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another.

(2) The term “trustee” includes a successor trustee.

(v) “User” means a person who has an account with a custodian.

(w) “Will” includes a codicil, a testamentary instrument that only appoints an executor, or an instrument that revokes or revises a testamentary instrument.

(x) “Agent” means an attorney-in-fact granted authority over financial matters under a durable or nondurable power of attorney.

(y) (1) “Conservator” means a person appointed by a court to manage the estate of a living individual.

(2) The term “conservator” includes a limited conservator.

(z) “Conservatee” means an individual for whom a conservator has been appointed.

(aa) “Principal” means an individual who grants authority to an agent in a power of attorney.

history: (History: Amended by Stats. 2024, Ch. 799, Sec. 1. (SB 1458) Effective January 1, 2025.)

part: 20. Revised Uniform Fiduciary Access to Digital Assets Act


citation: PROB § 872

text:
(a) This part shall apply to all of the following:

(1) A fiduciary acting under a will executed before, on, or after January 1, 2017.

(2) A personal representative acting for a decedent who died before, on, or after January 1, 2017.

(3) A trustee acting under a trust created before, on, or after January 1, 2017.

(4) A custodian of digital assets for a user if the user resides in this state or resided in this state at the time of the user’s death.

(5) A conservator appointed before, on, or after January 1, 2025.

(6) A fiduciary acting under a power of attorney executed before, on, or after January 1, 2025.

(b) This part does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

history: (History: Amended by Stats. 2024, Ch. 799, Sec. 2. (SB 1458) Effective January 1, 2025.)


citation: PROB § 873

text:
(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

(b) If a user has not used an online tool to give direction under subdivision (a) or if a custodian has not provided an online tool, a user may allow or prohibit in a will, trust, power of attorney, or other record the disclosure to a fiduciary of some or all of the user’s digital assets, including the contents of electronic communications sent or received by the user.

(c) A user’s direction under subdivision (a) or (b) overrides a contrary provision in a terms-of-service agreement.


citation: PROB § 874

text:
(a) This part does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of a user.

(b) This part does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate or trust, the fiduciary or designated recipient acts or represents.

(c) A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement when the user has not provided any direction that is recognized in Section 873.


citation: PROB § 875

text:
(a) When disclosing the digital assets of a user under this part, the custodian may, in its sole discretion, do any of the following:

(1) Grant the fiduciary or designated recipient full access to the user’s account.

(2) Grant the fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged.

(3) Provide the fiduciary or designated recipient with a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.

(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this part.

(c) A custodian need not disclose under this part a digital asset deleted by a user.

(d) If a user directs or a fiduciary or designated recipient requests a custodian to disclose under this part some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian, fiduciary, or designated recipient may petition the court for an order to do any of the following:

(1) Disclose a subset limited by date of the user’s digital assets.

(2) Disclose all of the user’s digital assets to the fiduciary or designated recipient.

(3) Disclose none of the user’s digital assets.

(4) Disclose all of the user’s digital assets to the court for review in camera.


citation: PROB § 876

text:
If a deceased user consented to or a court directs disclosure of the content of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives to the custodian all of the following:

(a) A written request for disclosure in physical or electronic form.

(b) A certified copy of the death certificate of the user.

(c) A certified copy of the letter of appointment of the representative, a small-estate affidavit under Section 13101, or court order.

(d) Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications.

(e) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.

(2) Evidence linking the account to the user.

(3) An order of the court finding any of the following:

(A) That the user had a specific account with the custodian, identifiable by the information specified in paragraph (1).

(B) That disclosure of the content of the user’s electronic communications would not violate Chapter 121 (commencing with Section 2701) of Part 1 of Title 18 of, and Section 222 of Title 47 of, the United States Code, or other applicable law.

(C) Unless the user provided direction using an online tool, that the user consented to disclosure of the content of electronic communications.

(D) That disclosure of the content of electronic communications of a user is reasonably necessary for estate administration.


citation: PROB § 877

text:
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the personal representative gives to the custodian all of the following:

(a) A written request for disclosure in physical or electronic form.

(b) A certified copy of the death certificate of the user.

(c) A certified copy of the letter of appointment of the representative, a small-estate affidavit under Section 13101, or court order.

(d) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account.

(2) Evidence linking the account to the user.

(3) An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for estate administration.

(4) An order of the court finding either of the following:

(A) That the user had a specific account with the custodian, identifiable by the information specified in paragraph (1).

(B) That disclosure of the user’s digital assets is reasonably necessary for estate administration.


citation: PROB § 878

text:
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives to the custodian all of the following:

(a) A written request for disclosure in physical or electronic form.

(b) A certified copy of the death certificate of the settlor.

(c) A certified copy of the trust instrument, or a certification of trust under Section 18100.5, evidencing the settlor’s consent to disclosure of the content of electronic communications to the trustee.

(d) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust.

(e) If requested by the custodian, any of the following:

(1) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account.

(2) Evidence linking the account to the trust.