kind: section

code: PROB

citation: PROB § 1

text: This code shall be known as the Probate Code.

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

part: 1. PRELIMINARY PROVISIONS

path: 1. PRELIMINARY PROVISIONS AND DEFINITIONS > 1. PRELIMINARY PROVISIONS


citation: PROB § 2

text:
(a) A provision of this code, insofar as it is substantially the same as a previously existing provision relating to the same subject matter, shall be construed as a restatement and continuation thereof and not as a new enactment.

(b) A provision of this code, insofar as it is the same in substance as a provision of a uniform act, shall be so construed as to effectuate the general purpose to make uniform the law in those states which enact that provision.

division: 1. PRELIMINARY PROVISIONS AND DEFINITIONS


citation: PROB § 3

text:
(a) As used in this section:

(1) “New law” means either of the following, as the case may be:

(A) The act that enacted this code.

(B) The act that makes a change in this code, whether effectuated by amendment, addition, or repeal of any provision of this code.

(2) “Old law” means the applicable law in effect before the operative date of the new law.

(3) “Operative date” means the operative date of the new law.

(b) This section governs the application of a new law except to the extent otherwise expressly provided in the new law.

(c) Subject to the limitations provided in this section, a new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, creation of a fiduciary relationship, death of a person, commencement of a proceeding, making of an order, or taking of an action.

(d) If a petition, account, report, inventory, appraisal, or other document or paper is filed before the operative date, the contents, execution, and notice thereof are governed by the old law and not by the new law; but any subsequent proceedings taken after the operative date concerning the petition, account, report, inventory, appraisal, or other document or paper, including an objection or response, a hearing, an order, or other matter relating thereto is governed by the new law and not by the old law.

(e) If an order is made before the operative date, including an order appointing a personal representative, guardian, conservator, trustee, probate referee, or any other fiduciary or officer, or any action on an order is taken before the operative date, the validity of the order or action is governed by the old law and not by the new law. Nothing in this subdivision precludes proceedings after the operative date to modify an order made, or alter a course of action commenced, before the operative date to the extent proceedings for modification of an order or alteration of a course of action of that type are otherwise provided by statute.

(f) No personal representative, guardian, conservator, trustee, probate referee, or any other fiduciary, officer, or person is liable for any action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and such a person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences.

(g) If the new law does not apply to a matter that occurred before the operative date, the old law continues to govern the matter notwithstanding its amendment or repeal by the new law.

(h) If a party shows, and the court determines, that application of a particular provision of the new law or of the old law in the manner required by this section or by the new law would substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the operative date, the court may, notwithstanding this section or the new law, apply either the new law or the old law to the extent reasonably necessary to mitigate the substantial interference.


citation: PROB § 4

text: Division, part, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of the provisions of this code.


citation: PROB § 5

text: If a notice or other communication is required by this code to be mailed by registered mail, the mailing of the notice or other communication by certified mail is deemed to be sufficient compliance with the requirement.


citation: PROB § 6

text: Unless the provision or context otherwise requires, the general provisions and rules of construction in this part govern the construction of this code.


citation: PROB § 7

text: Whenever a reference is made to any portion of this code or to any other law, the reference applies to all amendments and additions heretofore or hereafter made.


citation: PROB § 8

text:
Unless otherwise expressly stated:

(a) “Division” means a division of this code.

(b) “Part” means a part of the division in which that term occurs.

(c) “Chapter” means a chapter of the division or part, as the case may be, in which that term occurs.

(d) “Article” means an article of the chapter in which that term occurs.

(e) “Section” means a section of this code.

(f) “Subdivision” means a subdivision of the section in which that term occurs.

(g) “Paragraph” means a paragraph of the subdivision in which that term occurs.

(h) “Subparagraph” means a subparagraph of the paragraph in which that term occurs.


citation: PROB § 9

text: The present tense includes the past and future tenses, and the future, the present.


citation: PROB § 10

text: The singular number includes the plural, and the plural, the singular.


citation: PROB § 11

text: If any provision or clause of this code or application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are severable.


citation: PROB § 12

text: “Shall” is mandatory and “may” is permissive.


citation: PROB § 13

text:
(a) The degree of kinship or consanguinity between two persons is determined by counting the number of generations separating those persons, pursuant to subdivision (b) or (c). Each generation is called a degree.

(b) Lineal kinship or consanguinity is the relationship between two persons, one of whom is a direct descendant of the other. The degree of kinship between those persons is determined by counting the generations separating the first person from the second person. In counting the generations, the first person is excluded and the second person is included. For example, parent and child are related in the first degree of lineal kinship or consanguinity, grandchild and grandparent are related in the second degree, and great-grandchild and great-grandparent are related in the third degree.

(c) Collateral kinship or consanguinity is the relationship between two people who spring from a common ancestor, but neither person is the direct descendent of the other. The degree of kinship is determined by counting the generations from the first person up to the common ancestor and from the common ancestor down to the second person. In counting the generations, the first person is excluded, the second person is included, and the common ancestor is counted only once. For example, siblings are related in the second degree of collateral kinship or consanguinity, an aunt or uncle and a niece or nephew are related in the third degree, and first cousins are related in the fourth degree.

history: (History: Added by Stats. 2009, Ch. 348, Sec. 4. (SB 308) Effective January 1, 2010.)


citation: PROB § 20

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

history: (History: Amended by Stats. 1991, Ch. 82, Sec. 1. Effective June 30, 1991. Operative July 1, 1991, by Sec. 31 of Ch. 82.)

part: 2. DEFINITIONS

path: 1. PRELIMINARY PROVISIONS AND DEFINITIONS > 2. DEFINITIONS


citation: PROB § 21

text: “Account,” when used to mean a contract of deposit of funds between a depositor and a financial institution, includes a checking account, savings account, certificate of deposit, share account, mutual capital certificate, and other like arrangements.


citation: PROB § 22

text: “Account in an insured credit union” means a share account in a credit union, either federally chartered or state licensed, that is insured under Title II of the Federal Credit Union Act (12 U.S.C. Sec. 1781, et seq.).


citation: PROB § 23

text:
(a) “Account in an insured savings and loan association” means a savings account or mutual capital certificate of either of the following:

(1) A federal association.

(2) A savings association doing business in this state which is an “insured institution” as defined in Title IV of the National Housing Act (12 U.S.C. Sec. 1724, et seq.).

(b) As used in this section:

(1) “Federal association” has the meaning given that term in subdivision (b) of Section 5102 of the Financial Code.

(2) “Mutual capital certificate” has the meaning given that term in Section 5111 of the Financial Code.

(3) “Savings account” has the meaning given that term in Section 5116 of the Financial Code.

(4) “Savings association” has the meaning given that term in subdivision (a) of Section 5102 of the Financial Code.


citation: PROB § 24

text:
“Beneficiary” means a person to whom a donative transfer of property is made or that person’s successor in interest, and:

(a) As it relates to the intestate estate of a decedent, means an heir.

(b) As it relates to the testate estate of a decedent, means a devisee.

(c) As it relates to a trust, means a person who has any present or future interest, vested or contingent.

(d) As it relates to a charitable trust, includes any person entitled to enforce the trust.


citation: PROB § 26

text: “Child” means any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved.


citation: PROB § 28

text:
“Community property” means:

(a) Community property heretofore or hereafter acquired during marriage by a married person while domiciled in this state.

(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person while domiciled elsewhere, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition.

(c) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person in exchange for real or personal property, wherever situated, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired.


citation: PROB § 29

text: “Conservatee” includes a limited conservatee.


citation: PROB § 30

text: “Conservator” includes a limited conservator.


citation: PROB § 32

text: “Devise,” when used as a noun, means a disposition of real or personal property by will, and, when used as a verb, means to dispose of real or personal property by will.


citation: PROB § 34

text:
(a) “Devisee” means any person designated in a will to receive a devise.

(b) In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.


citation: PROB § 36

text: “Dissolution of marriage” includes divorce.


citation: PROB § 37

text:
(a) “Domestic partner” means one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State pursuant to Division 2.5 (commencing with Section 297) of the Family Code, provided that the domestic partnership has not been terminated pursuant to Section 299 of the Family Code.

(b) Notwithstanding Section 299 of the Family Code, if a domestic partnership is terminated by the death of one of the parties and Notice of Termination was not filed by either party prior to the date of death of the decedent, the domestic partner who survives the deceased is a surviving domestic partner, and shall be entitled to the rights of a surviving domestic partner as provided in this code.

history: (History: Added by Stats. 2001, Ch. 893, Sec. 13. Effective January 1, 2002.)


citation: PROB § 38

text: “Family allowance” means an allowance provided for in Chapter 4 (commencing with Section 6540) of Part 3 of Division 6.


citation: PROB § 39

text: “Fiduciary” means personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer To Minors Act (Part 9 (commencing with Section 3900) of Division 4), or other legal representative subject to this code.

history: (History: Amended by Stats. 1997, Ch. 724, Sec. 2. Effective January 1, 1998.)


citation: PROB § 40

text: “Financial institution” means a state or national bank, state or federal savings and loan association or credit union, or like organization.


citation: PROB § 42

text: “General personal representative” is defined in subdivision (b) of Section 58.


citation: PROB § 44

text: “Heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code.


citation: PROB § 45

text: “Instrument” means a will, a document establishing or modifying a trust, a deed, or any other writing that designates a beneficiary or makes a donative transfer of property.

history: (History: Amended by Stats. 2019, Ch. 56, Sec. 1. (SB 308) Effective January 1, 2020.)


citation: PROB § 46

text: “Insured account in a financial institution” means an account in a bank, an account in an insured credit union, and an account in an insured savings and loan association, to the extent that the account is insured.


citation: PROB § 48

text:
(a) Subject to subdivision (b), “interested person” includes any of the following:

(1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.

(2) Any person having priority for appointment as personal representative.

(3) A fiduciary representing an interested person.

(b) The meaning of “interested person” as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.


citation: PROB § 50

text: “Issue” of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.


citation: PROB § 52

text:
“Letters”:

(a) As it relates to a personal representative, means letters testamentary, letters of administration, letters of administration with the will annexed, or letters of special administration.

(b) As it relates to a guardian or conservator, means letters of guardianship or conservatorship or temporary guardianship or conservatorship.


citation: PROB § 54

text: “Parent” means any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved.


citation: PROB § 55

text: “Pay-on-death account” or “P.O.D. account” is defined in Section 5140.


citation: PROB § 56

text: “Person” means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity.

history: (History: Amended by Stats. 1994, Ch. 1010, Sec. 202. Effective January 1, 1995.)


citation: PROB § 58

text:
(a) “Personal representative” means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.

(b) “General personal representative” excludes a special administrator unless the special administrator has the powers, duties, and obligations of a general personal representative under Section 8545.

history: (History: Amended by Stats. 2004, Ch. 888, Sec. 1. Effective January 1, 2005.)


citation: PROB § 59

text:
“Predeceased spouse” means a person who died before the decedent while married to the decedent, except that the term does not include any of the following:

(a) A person who obtains or consents to a final decree or judgment of dissolution of marriage from the decedent or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as spouses.

(b) A person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony to a third person.

(c) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.

history: (History: Amended by Stats. 2016, Ch. 50, Sec. 76. (SB 1005) Effective January 1, 2017.)


citation: PROB § 60

text: “Probate homestead” means a homestead provided for in Chapter 3 (commencing with Section 6520) of Part 3 of Division 6.


citation: PROB § 60.1

text:
(a) “Professional fiduciary” means a person who is a professional fiduciary as defined under subdivision (f) of Section 6501 of the Business and Professions Code.

(b) On and after January 1, 2009, no person shall act or hold himself or herself out to the public as a professional fiduciary unless he or she is licensed as a professional fiduciary under Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code.

history: (History: Amended by Stats. 2007, Ch. 354, Sec. 70. Effective January 1, 2008.)


citation: PROB § 62

text: “Property” means anything that may be the subject of ownership and includes both real and personal property and any interest therein.


citation: PROB § 66

text:
“Quasi-community property” means the following property, other than community property as defined in Section 28:

(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.

(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired.


citation: PROB § 68

text: “Real property” includes a leasehold interest in real property.


citation: PROB § 69

text: “Revocable transfer on death deed” or “revocable TOD deed” means a revocable transfer on death deed as described in Section 5614.

history: (History: Added by Stats. 2015, Ch. 293, Sec. 3. (AB 139) Effective January 1, 2016.)


citation: PROB § 70

text: “Security” includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.


citation: PROB § 72

text: “Spouse” includes domestic partner, as defined in Section 37 of this code, as required by Section 297.5 of the Family Code.

history: (History: Added by Stats. 2016, Ch. 50, Sec. 77. (SB 1005) Effective January 1, 2017.)


citation: PROB § 74

text: “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.


citation: PROB § 76

text: A “subscribing witness” to a will means a witness who signs the will as provided in Section 6110.


citation: PROB § 78

text:
“Surviving spouse” does not include any of the following:

(a) A person whose marriage to, or registered domestic partnership with, the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage or registered domestic partnership, the person is married to, or in a registered domestic partnership with, the decedent at the time of death.

(b) A person who obtains or consents to a final decree or judgment of dissolution of marriage or termination of registered domestic partnership from the decedent or a final decree or judgment of annulment of their marriage or termination of registered domestic partnership, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as spouses.

(c) A person who, following a decree or judgment of dissolution or annulment of marriage or registered domestic partnership obtained by the decedent, participates in a marriage ceremony with a third person.

(d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital or registered domestic partnership property rights.

history: (History: Amended by Stats. 2016, Ch. 50, Sec. 78. (SB 1005) Effective January 1, 2017.)


citation: PROB § 80

text: “Totten trust account” means an account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account. In a Totten trust account, it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A Totten trust account does not include (1) a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account or (2) a fiduciary account arising from a fiduciary relation such as attorney-client.


citation: PROB § 81

text: “Transferor” means the testator, settlor, grantor, owner, or other person who executes an instrument.


citation: PROB § 81.5

text: “Transferee” means the beneficiary, donee, or other recipient of an interest transferred by an instrument.

history: (History: Added by Stats. 1994, Ch. 806, Sec. 2. Effective January 1, 1995.)


citation: PROB § 82

text:
(a) “Trust” includes the following:

(1) An express trust, private or charitable, with additions thereto, wherever and however created.

(2) A trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust.

(b) “Trust” excludes the following:

(1) Constructive trusts, other than those described in paragraph (2) of subdivision (a), and resulting trusts.

(2) Guardianships and conservatorships.

(3) Personal representatives.

(4) Totten trust accounts.

(5) Custodial arrangements pursuant to the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state.

(6) Business trusts that are taxed as partnerships or corporations.

(7) Investment trusts subject to regulation under the laws of this state or any other jurisdiction.

(8) Common trust funds.

(9) Voting trusts.

(10) Security arrangements.

(11) Transfers in trust for purpose of suit or enforcement of a claim or right.

(12) Liquidation trusts.

(13) Trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind.

(14) Any arrangement under which a person is nominee or escrowee for another.


citation: PROB § 83

text: “Trust company” means an entity that has qualified to engage in and conduct a trust business in this state.


citation: PROB § 84

text: “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.


citation: PROB § 86

text: “Undue influence” has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law.

history: (History: Added by Stats. 2013, Ch. 668, Sec. 1. (AB 140) Effective January 1, 2014.)


citation: PROB § 88

text: “Will” includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.


citation: PROB § 100

text:
(a) Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their community property on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of community property.

history: (History: Amended by Stats. 2016, Ch. 50, Sec. 79. (SB 1005) Effective January 1, 2017.)

division: 2. GENERAL PROVISIONS

path: 2. GENERAL PROVISIONS > 1. EFFECT OF DEATH OF MARRIED PERSON ON COMMUNITY AND QUASI-COMMUNITY PROPERTY


citation: PROB § 101

text:
(a) Upon the death of a person who is married or in a registered domestic partnership, and is domiciled in this state, one-half of the decedent’s quasi-community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their quasi-community property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on the basis of a division of each individual item or asset of quasi-community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of quasi-community property.

history: (History: Amended by Stats. 2016, Ch. 50, Sec. 80. (SB 1005) Effective January 1, 2017.)

part: 1. EFFECT OF DEATH OF MARRIED PERSON ON COMMUNITY AND QUASI-COMMUNITY PROPERTY


citation: PROB § 102

text:
(a) The decedent’s surviving spouse may require the transferee of property in which the surviving spouse had an expectancy under Section 101 at the time of the transfer to restore to the decedent’s estate one-half of the property if the transferee retains the property or, if not, one-half of its proceeds or, if none, one-half of its value at the time of transfer, if all of the following requirements are satisfied:

(1) The decedent died domiciled in this state.

(2) The decedent made a transfer of the property to a person other than the surviving spouse without receiving in exchange a consideration of substantial value and without the written consent or joinder of the surviving spouse.

(3) The transfer is any of the following types:

(A) A transfer under which the decedent retained at the time of death the possession or enjoyment of, or the right to income from, the property.

(B) A transfer to the extent that the decedent retained at the time of death a power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for the decedent’s own benefit.

(C) A transfer whereby property is held at the time of the decedent’s death by the decedent and another with right of survivorship.

(b) Nothing in this section requires a transferee to restore to the decedent’s estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse.

(c) All property restored to the decedent’s estate under this section belongs to the surviving spouse pursuant to Section 101 as though the transfer had not been made.

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


citation: PROB § 103

text:
Except as provided by Section 224, if spouses die leaving community or quasi-community property and it cannot be established by clear and convincing evidence that one spouse survived the other:

(a) One-half of the community property and one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if one spouse had survived and as if that one-half belonged to that spouse.

(b) The other one-half of the community property and the other one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if the other spouse had survived and as if that one-half belonged to that spouse.

history: (History: Amended by Stats. 2016, Ch. 50, Sec. 81. (SB 1005) Effective January 1, 2017.)


citation: PROB § 104

text: Notwithstanding Section 100, community property held in a revocable trust described in Section 761 of the Family Code is governed by the provisions, if any, in the trust for disposition in the event of death.

history: (History: Amended by Stats. 1992, Ch. 163, Sec. 119. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)


citation: PROB § 104.5

text: Transfer of community and quasi-community property to a revocable trust shall be presumed to be an agreement, pursuant to Sections 100 and 101, that those assets retain their character in the aggregate for purposes of any division provided by the trust. This section shall apply to all transfers prior to, on, or after January 1, 2000.

history: (History: Added by Stats. 1999, Ch. 263, Sec. 1. Effective January 1, 2000.)


citation: PROB § 105

text: This part does not apply where the decedent died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where the decedent died before January 1, 1985.


citation: PROB § 120

text: If a married person dies not domiciled in this state and leaves a valid will disposing of real property in this state which is not the community property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in such property against the will of the decedent as though the property were located in the decedent’s domicile at death.

path: 2. GENERAL PROVISIONS > 2. SURVIVING SPOUSE'S RIGHT IN CALIFORNIA REAL PROPERTY OF NONDOMICILIARY DECEDENT


citation: PROB § 140

text: As used in this chapter, “waiver” means a waiver by the surviving spouse of any of the rights listed in subdivision (a) of Section 141, whether signed before or during marriage.

chapter: 1. Surviving Spouse’s Waiver of Rights

path: 2. GENERAL PROVISIONS > 3. CONTRACTUAL ARRANGEMENTS RELATING TO RIGHTS AT DEATH > 1. Surviving Spouse’s Waiver of Rights


citation: PROB § 141

text:
(a) The right of a surviving spouse to any of the following may be waived in whole or in part by a waiver under this chapter:

(1) Property that would pass from the decedent by intestate succession.

(2) Property that would pass from the decedent by testamentary disposition in a will executed before the waiver.

(3) A probate homestead.

(4) The right to have exempt property set aside.

(5) Family allowance.

(6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of Division 6.

(7) The right to elect to take community or quasi-community property against the decedent’s will.

(8) The right to take the statutory share of an omitted spouse.

(9) The right to be appointed as the personal representative of the decedent’s estate.

(10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with Section 5000) of Division 5.

(b) Nothing in this chapter affects or limits the waiver or manner of waiver of rights other than those referred to in subdivision (a), including, but not limited to, the right to property that would pass from the decedent to the surviving spouse by nonprobate transfer upon the death of the decedent, such as the survivorship interest under a joint tenancy, a Totten trust account, or a pay-on-death account.

history: (History: Amended by Stats. 1992, Ch. 51, Sec. 2. Effective January 1, 1993.)

part: 3. CONTRACTUAL ARRANGEMENTS RELATING TO RIGHTS AT DEATH


citation: PROB § 142

text:
(a) A waiver under this chapter shall be in writing and shall be signed by the surviving spouse.

(b) Subject to subdivision (c), a waiver under this chapter is enforceable only if it satisfies the requirements of subdivision (a) and is enforceable under either Section 143 or Section 144.

(c) Enforcement of the waiver against the surviving spouse is subject to the same defenses as enforcement of a contract, except that:

(1) Lack of consideration is not a defense to enforcement of the waiver.

(2) A minor intending to marry may make a waiver under this chapter as if married, but the waiver becomes effective only upon the marriage.


citation: PROB § 143

text:
(a) Subject to Section 142, a waiver is enforceable under this section unless the surviving spouse proves either of the following:

(1) A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided to the surviving spouse prior to the signing of the waiver unless the surviving spouse waived such a fair and reasonable disclosure after advice by independent legal counsel.

(2) The surviving spouse was not represented by independent legal counsel at the time of signing of the waiver.

(b) Subdivision (b) of Section 721 of the Family Code does not apply if the waiver is enforceable under this section.

history: (History: Amended by Stats. 1992, Ch. 163, Sec. 120. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)


citation: PROB § 144

text:
(a) Except as provided in subdivision (b), subject to Section 142, a waiver is enforceable under this section if the court determines either of the following:

(1) The waiver at the time of signing made a fair and reasonable disposition of the rights of the surviving spouse.

(2) The surviving spouse had, or reasonably should have had, an adequate knowledge of the property and financial obligations of the decedent and the decedent did not violate the duty imposed by subdivision (b) of Section 721 of the Family Code.

(b) If, after considering all relevant facts and circumstances, the court finds that enforcement of the waiver pursuant to subdivision (a) would be unconscionable under the circumstances existing at the time enforcement is sought, the court may refuse to enforce the waiver, enforce the remainder of the waiver without the unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result.

(c) Except as provided in paragraph (2) of subdivision (a), subdivision (b) of Section 721 of the Family Code does not apply if the waiver is enforceable under this section.

history: (History: Amended by Stats. 1992, Ch. 163, Sec. 121. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)


citation: PROB § 145

text: Unless the waiver or property settlement provides to the contrary, a waiver under this chapter of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse, or a complete property settlement entered into after or in anticipation of separation or dissolution or annulment of marriage, is a waiver by the spouse of the rights described in subdivision (a) of Section 141.


citation: PROB § 146

text:
(a) As used in this section, “agreement” means a written agreement signed by each spouse or prospective spouse altering, amending, or revoking a waiver under this chapter.

(b) Except as provided in subdivisions (c) and (d) of Section 147, unless the waiver specifically otherwise provides, a waiver under this chapter may not be altered, amended, or revoked except by a subsequent written agreement signed by each spouse or prospective spouse.

(c) Subject to subdivision (d), the agreement is enforceable only if it satisfies the requirements of subdivision (b) and is enforceable under either subdivision (e) or subdivision (f).

(d) Enforcement of the agreement against a party to the agreement is subject to the same defenses as enforcement of any other contract, except that:

(1) Lack of consideration is not a defense to enforcement of the agreement.

(2) A minor intending to marry may enter into the agreement as if married, but the agreement becomes effective only upon the marriage.

(e) Subject to subdivision (d), an agreement is enforceable under this subdivision unless the party to the agreement against whom enforcement is sought proves either of the following:

(1) A fair and reasonable disclosure of the property or financial obligations of the other spouse was not provided to the spouse against whom enforcement is sought prior to the signing of the agreement unless the spouse against whom enforcement is sought waived such a fair and reasonable disclosure after advice by independent legal counsel.

(2) The spouse against whom enforcement is sought was not represented by independent legal counsel at the time of signing of the agreement.

(f) Subject to subdivisions (d) and (g), an agreement is enforceable under this subdivision if the court determines that the agreement at the time of signing made a fair and reasonable disposition of the rights of the spouses.

(g) If, after considering all relevant facts and circumstances, the court finds that enforcement of the agreement pursuant to subdivision (f) would be unconscionable under the circumstances existing at the time enforcement is sought, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result.

(h) Subdivision (b) of Section 721 of the Family Code does not apply if the agreement is enforceable under this section.

history: (History: Amended by Stats. 1992, Ch. 163, Sec. 122. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)


citation: PROB § 147

text:
(a) Subject to subdivisions (c) and (d), a waiver, agreement, or property settlement made after December 31, 1984, is invalid insofar as it affects the rights listed in subdivision (a) of Section 141 unless it satisfies the requirements of this chapter.

(b) Nothing in this chapter affects the validity or effect of any waiver, agreement, or property settlement made prior to January 1, 1985, and the validity and effect of such waiver, agreement, or property settlement shall continue to be determined by the law applicable to the waiver, agreement, or settlement prior to January 1, 1985.

(c) Nothing in this chapter affects the validity or effect of any premarital property agreement, whether made prior to, on, or after January 1, 1985, insofar as the premarital property agreement affects the rights listed in subdivision (a) of Section 141, and the validity and effect of such premarital property agreement shall be determined by the law otherwise applicable to the premarital property agreement. Nothing in this subdivision limits the enforceability under this chapter of a waiver made under this chapter by a person intending to marry that is otherwise enforceable under this chapter.

(d) Nothing in this chapter limits any right one spouse otherwise has to revoke a consent or election to disposition of his or her half of the community or quasi-community property under the will of the other spouse.


citation: PROB § 200

text: If title to or an interest in real or personal property is affected by the death of a person, another person who claims an interest in the property may commence proceedings pursuant to this chapter to establish the fact of the death.

chapter: 1. Proceedings to Establish Death

path: 2. GENERAL PROVISIONS > 4. ESTABLISHING AND REPORTING FACT OF DEATH > 1. Proceedings to Establish Death


citation: PROB § 201

text:
(a) Proceedings under this chapter shall be commenced in the superior court of the county of which the decedent was a resident at the time of death or in the superior court of any county in which the property is located.

(b) Proceedings under this chapter shall be commenced by filing a petition that sets forth all of the following information:

(1) The jurisdictional facts.

(2) A particular description of the affected property and of the interest of the petitioner in the property.

part: 4. ESTABLISHING AND REPORTING FACT OF DEATH


citation: PROB § 202

text:
If proceedings for the administration of the decedent’s estate are pending, proceedings under this chapter may be combined with the administration proceedings in the following manner:

(a) The petition shall be filed in the administration proceedings by the person affected or by the personal representative.

(b) The petition shall be filed at any time before the filing of a petition for final distribution. The petition may be included in a petition for probate of the will of the decedent or for letters.

(c) The petition shall be filed without any additional fee.


citation: PROB § 203

text:
(a) Except as provided in subdivision (b), notice of the hearing shall be given as provided in Section 1220.

(b) If the person who commenced the proceedings files an affidavit with the petition stating that the person has no reason to believe there is any opposition to, or contest of, the petition, the court may act ex parte.


citation: PROB § 204

text:
(a) The petition and supporting affidavits may be received in evidence and acted upon by the court with the same force and effect as if the petitioner and affiants were personally present and testified to the facts set forth.

(b) The court may render judgment establishing the fact of the death. The judgment is prima facie evidence of the fact of the death. The presumption established by this subdivision is a presumption affecting the burden of producing evidence.


citation: PROB § 210

text:
If title to real property is affected by the death of a person, any person may record in the county in which the property is located any of the following documents establishing the fact of the death:

(a) An affidavit of death executed by a person having knowledge of the facts. The affidavit shall include a particular description of the real property and an attested or certified copy of a record of the death made and filed in a designated public office as required by law. For purposes of this subdivision, a certified copy issued in this state shall include any copy issued pursuant to Section 103525 of, subdivision (a) of Section 103526 of, or paragraph (1) of subdivision (b) of Section 103526 of, the Health and Safety Code.

(b) A certified copy of a court order that determines the fact of death made pursuant to Chapter 1 (commencing with Section 200) or pursuant to another statute that provides for a determination of the fact of death.

history: (History: Amended by Stats. 2013, Ch. 78, Sec. 4. (AB 464) Effective January 1, 2014.)

chapter: 2. Recording Evidence of Death

path: 2. GENERAL PROVISIONS > 4. ESTABLISHING AND REPORTING FACT OF DEATH > 2. Recording Evidence of Death


citation: PROB § 211

text:
(a) A document establishing the fact of death recorded pursuant to this chapter is subject to all statutory requirements for recorded documents.

(b) The county recorder shall index a document establishing the fact of death recorded pursuant to this chapter in the index of grantors and grantees. The index entry shall be for the grantor, and for the purpose of this index, the person whose death is established shall be deemed to be the grantor.


citation: PROB § 212

text: A document establishing the fact of the death of a person recorded pursuant to this chapter is prima facie evidence of the death insofar as the document identifies real property located in the county, title to which is affected by the death. The presumption established by this section is a presumption affecting the burden of producing evidence.


citation: PROB § 215

text: Where a deceased person has received or may have received health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, or was the surviving spouse of a person who received that health care, the estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent shall give the Director of Health Care Services notice of the decedent’s death not later than 90 days after the date of death. The notice shall include a copy of the decedent’s death certificate. The notice shall be given as provided in Section 1215, addressed to the director at the Sacramento office of the director.

history: (History: Amended by Stats. 2014, Ch. 71, Sec. 135. (SB 1304) Effective January 1, 2015.)

chapter: 3. Reporting Fact of Death

path: 2. GENERAL PROVISIONS > 4. ESTABLISHING AND REPORTING FACT OF DEATH > 3. Reporting Fact of Death


citation: PROB § 216

text:
(a) For the purposes of this section “confined” means to be confined in a prison or facility under the jurisdiction of the Department of Corrections and Rehabilitation, or its Division of Juvenile Facilities, or confined in any county or city jail, road camp, industrial farm, or other local correctional facility.

(b) The estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent shall give the Director of the California Victim Compensation Board notice of a decedent’s death not later than 90 days after the date of death in either of the following circumstances:

(1) The deceased person has an heir or beneficiary who is confined.

(2) The estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent, knows that an heir or beneficiary has previously been confined.

(c) The notice shall be given as provided in Section 1215 and shall include all of the following:

(1) The name, date of birth, and location of incarceration, or current address if no longer incarcerated, of the decedent’s heir or beneficiary.

(2) The heir’s or beneficiary’s CDCR number if incarcerated in a Department of Corrections and Rehabilitation facility or booking number if incarcerated in a county facility.

(3) A copy of the decedent’s death certificate.

(4) The probate case number, and the name of the superior court hearing the case.

(d) Nothing in this section shall be interpreted as requiring the estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent to conduct an additional investigation to determine whether a decedent has an heir or beneficiary who has been confined in a prison or facility under the jurisdiction of the Department of Corrections and Rehabilitation, or its Division of Juvenile Facilities, or confined in any county or city jail, road camp, industrial farm, or other local correctional facility.

history: (History: Amended by Stats. 2016, Ch. 31, Sec. 260. (SB 836) Effective June 27, 2016.)


citation: PROB § 217

text:
(a) A business that receives an oral or written request from a family member, attorney, or personal representative of a deceased person to cancel that person’s services may not require an in-person cancellation.

(b) For purposes of this section, “services” include, but are not limited to, gas, electrical, water, sewage, cable, satellite, telephone, or cellular telephone service.

history: (History: Added by Stats. 2007, Ch. 14, Sec. 1. Effective January 1, 2008.)


citation: PROB § 220

text: Except as otherwise provided in this chapter, if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.

part: 5. SIMULTANEOUS DEATH

chapter: 1. General Provisions

path: 2. GENERAL PROVISIONS > 5. SIMULTANEOUS DEATH > 1. General Provisions


citation: PROB § 221

text:
(a) This chapter does not apply in any case where Section 103, 6211, or 6403 applies.

(b) This chapter does not apply in the case of a trust, deed, or contract of insurance, or any other situation, where (1) provision is made dealing explicitly with simultaneous deaths or deaths in a common disaster or otherwise providing for distribution of property different from the provisions of this chapter or (2) provision is made requiring one person to survive another for a stated period in order to take property or providing for a presumption as to survivorship that results in a distribution of property different from that provided by this chapter.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 3. Effective January 1, 2003.)


citation: PROB § 222

text:
(a) If property is so disposed of that the right of a beneficiary to succeed to any interest in the property is conditional upon surviving another person and it cannot be established by clear and convincing evidence that the beneficiary survived the other person, the beneficiary is deemed not to have survived the other person.

(b) If property is so disposed of that one of two or more beneficiaries would have been entitled to the property if he or she had survived the others, and it cannot be established by clear and convincing evidence that any beneficiary survived any other beneficiary, the property shall be divided into as many equal portions as there are beneficiaries and the portion of each beneficiary shall be administered or distributed, or otherwise dealt with, as if that beneficiary had survived the other beneficiaries.


citation: PROB § 223

text:
(a) As used in this section, “joint tenants” includes owners of property held under circumstances that entitled one or more to the whole of the property on the death of the other or others.

(b) If property is held by two joint tenants and both of them have died and it cannot be established by clear and convincing evidence that one survived the other, the property held in joint tenancy shall be administered or distributed, or otherwise dealt with, one-half as if one joint tenant had survived and one-half as if the other joint tenant had survived.

(c) If property is held by more than two joint tenants and all of them have died and it cannot be established by clear and convincing evidence that any of them survived the others, the property held in joint tenancy shall be divided into as many portions as there are joint tenants and the share of each joint tenant shall be administered or distributed, or otherwise dealt with, as if that joint tenant had survived the other joint tenants.


citation: PROB § 224

text: If the insured and a beneficiary under a policy of life or accident insurance have died and it cannot be established by clear and convincing evidence that the beneficiary survived the insured, the proceeds of the policy shall be administered or distributed, or otherwise dealt with, as if the insured had survived the beneficiary, except if the policy is community or quasi-community property of the insured and the spouse of the insured and there is no alternative beneficiary except the estate or personal representative of the insured, the proceeds shall be distributed as community property under Section 103.


citation: PROB § 226

text: This chapter does not apply where a person the priority of whose death is in issue died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where none of the persons the priority of whose death is in issue died on or after January 1, 1985.


citation: PROB § 230

text:
A petition may be filed under this chapter for any one or more of the following purposes:

(a) To determine for the purposes of Section 103, 220, 222, 223, 224, 6211, 6242, 6243, 6403, 21109, 21110 or other provision of this code whether one person survived another.

(b) To determine for the purposes of Section 673 whether issue of an appointee survived the donee.

(c) To determine for the purposes of Section 24611 of the Education Code whether a person has survived in order to receive benefits payable under the system.

(d) To determine for the purposes of Section 21509 of the Government Code whether a person has survived in order to receive money payable under the system.

history: (History: Amended by Stats. 2002, Ch. 138, Sec. 4. Effective January 1, 2003.)

chapter: 2. Proceedings to Determine Survival

path: 2. GENERAL PROVISIONS > 5. SIMULTANEOUS DEATH > 2. Proceedings to Determine Survival


citation: PROB § 231

text:
A petition may be filed under this chapter by any of the following:

(a) The personal representative of any person the priority of whose death is in issue under the applicable provision referred to in Section 230.

(b) Any other person interested in the estate of any such person.


citation: PROB § 232

text:
(a) The petition shall be filed in the estate proceeding in which the person filing the petition received his or her appointment or in the estate proceeding for the estate in which the person filing the petition claims an interest.

(b) The court that first acquires jurisdiction under this section has exclusive jurisdiction for the purposes of this chapter.


citation: PROB § 233

text:
Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons:

(a) The personal representative of each person the priority of whose death is in issue if there is a personal representative for the person.

(b) Each known devisee of each person the priority of whose death is in issue.

(c) Each known heir of each person the priority of whose death is in issue.

(d) All persons (or their attorneys if they have appeared by attorneys) who have requested special notice as provided in Section 1250 in the proceeding in which the petition is filed or who have given notice of appearance in person or by attorney in that proceeding.


citation: PROB § 234

text: If the court determines that the named persons are dead and that it has not been established by clear and convincing evidence that one person survived another, the court shall make an order to that effect. If the court determines that the named persons are dead and that there is clear and convincing evidence that one person survived another, the court shall make an order setting forth the order in which the persons died. The order, when it becomes final, is a binding determination of the facts set forth in the order and is conclusive as against the personal representatives of the deceased persons named in the order and against all persons claiming by, through, or under any of the deceased persons.


citation: PROB § 240

text: If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.

chapter: 1. Intestate Distribution System

path: 2. GENERAL PROVISIONS > 6. DISTRIBUTION AMONG HEIRS OR BENEFICIARIES > 1. Intestate Distribution System


citation: PROB § 241

text: Section 240 does not apply where the death of the decedent in the case of intestate succession or of the testator, settlor, or other transferor occurred before January 1, 1985, and the law applicable prior to January 1, 1985, shall continue to apply where the death occurred before January 1, 1985.

part: 6. DISTRIBUTION AMONG HEIRS OR BENEFICIARIES


citation: PROB § 245

text:
(a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 240 of the Probate Code,” or where a will, trust, or other instrument that expresses no contrary intention provides for issue or descendants to take without specifying the manner, the property to be distributed shall be distributed in the manner provided in Section 240.

(b) Use of the following words without more, as applied to issue or descendants, is not an expression of contrary intention:

(1) “Per capita” when living members of the designated class are not all of the same generation.

(2) Contradictory wording, such as “per capita and per stirpes” or “equally and by right of representation.”

path: 2. GENERAL PROVISIONS > 6. DISTRIBUTION AMONG HEIRS OR BENEFICIARIES > 2. Distribution Under a Will, Trust, or Other Instrument


citation: PROB § 246

text:
(a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 246 of the Probate Code,” the property to be distributed shall be divided into as many equal shares as there are living children of the designated ancestor, if any, and deceased children who leave issue then living. Each living child of the designated ancestor is allocated one share, and the share of each deceased child who leaves issue then living is divided in the same manner.

(b) Unless the will, trust, or other instrument expressly provides otherwise, if an instrument executed on or after January 1, 1986, calls for property to be distributed or taken “per stirpes,” “by representation,” or “by right of representation,” the property shall be distributed in the manner provided in subdivision (a).

(c) If a will, trust, or other instrument executed before January 1, 1986, calls for property to be distributed or taken “per stirpes,” “by representation,” or by “right of representation,” the property shall be distributed in the manner provided in subdivision (a), absent a contrary intent of the transferor.

chapter: 2. Distribution Under a Will, Trust, or Other Instrument


citation: PROB § 247

text:
(a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 247 of the Probate Code,” the property to be distributed shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living. Each living member of the nearest generation of issue then living is allocated one share, and the remaining shares, if any, are combined and then divided and allocated in the same manner among the remaining issue as if the issue already allocated a share and their descendants were then deceased.

(b) Unless the will, trust, or other instrument expressly provides otherwise, if an instrument executed on or after January 1, 1986, calls for property to be distributed or taken “per capita at each generation,” the property shall be distributed in the manner provided in subdivision (a).

(c) If a will, trust, or other instrument executed before January 1, 1986, calls for property to be distributed or taken “per capita at each generation,” the property shall be distributed in the manner provided in subdivision (a), absent a contrary intent of the transferor.


citation: PROB § 248

text: When title to real or personal property, or any interest therein, vests, other than by laws of succession, on the heirs, heirs of the body, issue, or children of any person, without other description, or means of identification of the persons embraced in the description, any person interested in the property as the heir, heir of the body, issue, or child, or his or her successor in interest, or the personal representative of any interested person or of his or her successor in interest, may file a verified petition in the superior court of the county in which the property or any part thereof is situated, setting forth briefly the deraignment of title of petitioner, a description of the property affected, and so far as known to the petitioner, the names, ages, and residences of the heirs, heirs of the body, issue or children whose identity is sought to be determined, and if any is dead or if the residence of any is unknown, stating the facts, and requesting that a decree be entered determining and establishing the identity of the persons embraced in the general description.

history: (History: Added by Stats. 1992, Ch. 871, Sec. 1. Effective January 1, 1993.)

chapter: 3. Identity of Heirs

path: 2. GENERAL PROVISIONS > 6. DISTRIBUTION AMONG HEIRS OR BENEFICIARIES > 3. Identity of Heirs


citation: PROB § 248.5

text: The clerk shall set the petition for hearing by the court and give notice thereof in the manner provided in Sections 1230 and 1260. The petitioner shall cause notice of the hearing to be given in the manner specified in Sections 1220 and 1260.


citation: PROB § 249

text: At any time before the hearing any person interested in the property may answer the petition and deny any of the matters contained therein. The court shall hear the proofs offered by the petitioner and by any person contesting and shall make a decree conformable to the proofs. The decree shall be prima facie evidence of the facts determined thereby, and shall be conclusive in favor of anyone acting thereon in good faith without notice of any conflicting interest.


citation: PROB § 249.5

text:
For purposes of determining rights to property to be distributed upon the death of a decedent, a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent, and after the execution of all of the decedent’s testamentary instruments, if the child or his or her representative proves by clear and convincing evidence that all of the following conditions are satisfied:

(a) The decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent, subject to the following:

(1) The specification shall be signed by the decedent and dated.

(2) The specification may be revoked or amended only by a writing, signed by the decedent and dated.

(3) A person is designated by the decedent to control the use of the genetic material.

(b) The person designated by the decedent to control the use of the genetic material has given written notice by certified mail, return receipt requested, that the decedent’s genetic material was available for the purpose of posthumous conception. The notice shall have been given to a person who has the power to control the distribution of either the decedent’s property or death benefits payable by reason of the decedent’s death, within four months of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first.

(c) The child was in utero using the decedent’s genetic material and was in utero within two years of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first. This subdivision does not apply to a child who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear transfer technology commonly known as human cloning.

history: (History: Amended by Stats. 2005, Ch. 285, Sec. 1. Effective January 1, 2006.)


citation: PROB § 249.6

text:
(a) Upon timely receipt of the notice required by Section 249.5 or actual knowledge by a person who has the power to control the distribution of either the decedent’s property or death benefits payable by reason of the decedent’s death, that person may not make a distribution of property or pay death benefits payable by reason of the decedent’s death before two years following the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of decedent’s death, whichever event occurs first.

(b) Subdivision (a) does not apply to, and the distribution of property or the payment of benefits may proceed in a timely manner as provided by law with respect to, any property if the birth of a child or children of the decedent conceived after the death of the decedent will not have an effect on any of the following:

(1) The proposed distribution of the decedent’s property.

(2) The payment of death benefits payable by reason of the decedent’s death.

(3) The determination of rights to property to be distributed upon the death of the decedent.

(4) The right of any person to claim a probate homestead or probate family allowance.

(c) Subdivision (a) does not apply to, and the distribution of property or the payment of benefits may proceed in a timely manner as provided by law with respect to, any property if the person named in subdivision (a) of Section 249.5 sends written notice by certified mail, return receipt requested, that the person does not intend to use the genetic material for the posthumous conception of a child of a decedent. This notice shall be signed by the person named in paragraph (3) of subdivision (a) of Section 249.5 and at least one competent witness, and dated.

(d) A person who has the power to control the distribution of either the decedent’s property or death benefits payable by reason of the decedent’s death, shall incur no liability for making a distribution of property or paying death benefits if that person made a distribution of property or paid death benefits prior to receiving notice or acquiring actual knowledge of the existence of genetic material available for posthumous conception purposes or the written notice required by subdivision (b) of Section 249.5.

(e) Each person to whom payment, delivery, or transfer of the decedent’s property is made is personally liable to a person who, pursuant to Section 249.5, has a superior right to the payment, delivery, or transfer of the decedent’s property. The aggregate of the personal liability of a person shall not exceed the fair market value, valued as of the time of the transfer, of the property paid, delivered, or transferred to the person under this section, less the amount of any liens and encumbrances on that property at that time.

(f) In addition to any other liability a person may have pursuant to this section, any person who fraudulently secures the payment, delivery, or transfer of the decedent’s property pursuant to this section shall be liable to the person having a superior right for three times the fair market value of the property.

(g) An action to impose liability under this section shall be barred three years after the distribution to the holder of the decedent’s property, or three years after the discovery of fraud, whichever is later. The three-year period specified in this subdivision may not be tolled for any reason.

history: (History: Amended by Stats. 2005, Ch. 285, Sec. 2. Effective January 1, 2006.)


citation: PROB § 249.7

text: If the written notice required pursuant to Section 249.5 is not given in a timely manner to any person who has the power to control the distribution of either the decedent’s property or death benefits payable by reason of the decedent’s death, that person may make the distribution in the manner provided by law as if any child of the decedent conceived after the death of the decedent had predeceased the decedent without heirs. Any child of a decedent conceived after the death of the decedent, or that child’s representative, shall be barred from making a claim against either the person making the distribution or the recipient of the distribution when the claim is based on wrongful distribution and written notice has not been given in a timely manner pursuant to Section 249.5 to the person making that distribution.

history: (History: Added by Stats. 2004, Ch. 775, Sec. 7. Effective January 1, 2005.)


citation: PROB § 249.8

text: Notwithstanding Section 249.6, any interested person may file a petition in the manner prescribed in Section 248 or 17200 requesting a distribution of property of the decedent or death benefits payable by reason of decedent’s death that are subject to the delayed distribution provisions of Section 249.6. The court may order distribution of all, or a portion of, the property or death benefits, if at the hearing it appears that distribution can be made without any loss to any interested person, including any loss, either actual or contingent, to a decedent’s child who is conceived after the death of the decedent. The order for distribution shall be stayed until any bond required by the court is filed.

history: (History: Amended by Stats. 2005, Ch. 285, Sec. 3. Effective January 1, 2006.)


citation: PROB § 250

text:
(a) A person who feloniously and intentionally kills the decedent is not entitled to any of the following:

(1) Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.

(2) Any property of the decedent by intestate succession.

(3) Any of the decedent’s quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.

(4) Any property of the decedent under Division 5 (commencing with Section 5000).

(5) Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.

(b) In the cases covered by subdivision (a):

(1) The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.

(2) Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.

(3) Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.

history: (History: Amended by Stats. 2015, Ch. 293, Sec. 4. (AB 139) Effective January 1, 2016.)

path: 2. GENERAL PROVISIONS > 7. EFFECT OF HOMICIDE OR ABUSE OF AN ELDER OR DEPENDENT ADULT


citation: PROB § 251

text: A joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent’s property and the killer has no rights by survivorship. This section applies to joint tenancies in real and personal property, joint and multiple-party accounts in financial institutions, and any other form of coownership with survivorship incidents.

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

part: 7. EFFECT OF HOMICIDE OR ABUSE OF AN ELDER OR DEPENDENT ADULT


citation: PROB § 252

text: A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.


citation: PROB § 253

text: In any case not described in Section 250, 251, or 252 in which one person feloniously and intentionally kills another, any acquisition of property, interest, or benefit by the killer as a result of the killing of the decedent shall be treated in accordance with the principles of this part.


citation: PROB § 254

text:
(a) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this part.

(b) In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this part.


citation: PROB § 255

text: This part does not affect the rights of any person who, before rights under this part have been adjudicated, purchases from the killer for value and without notice property which the killer would have acquired except for this part, but the killer is liable for the amount of the proceeds or the value of the property.


citation: PROB § 256

text: An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this part, unless prior to payment it has received at its home office or principal address written notice of a claim under this part.


citation: PROB § 257

text: This part does not apply where the decedent was killed before January 1, 1985; and the law applicable prior to January 1, 1985, continues to apply where the decedent was killed before January 1, 1985.


citation: PROB § 258

text: A person who feloniously and intentionally kills the decedent is not entitled to bring an action for wrongful death of the decedent or to benefit from the action brought by the decedent’s personal representative. The persons who may bring an action for wrongful death of the decedent and to benefit from the action are determined as if the killer had predeceased the decedent.

history: (History: Added by Stats. 1992, Ch. 178, Sec. 29.5. Effective January 1, 1993.)


citation: PROB § 259

text:
(a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply:

(1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult.

(2) The person is found to have acted in bad faith.

(3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent.

(4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.

(b) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.

(c) Any person found liable under subdivision (a) or convicted under subdivision (b) shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) or (b), whether that person’s entitlement is under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in Section 39, if the instrument nominating or appointing that person was executed during the period when the decedent was substantially unable to manage his or her financial resources or resist fraud or undue influence. This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.

(d) For purposes of this section, the following definitions shall apply:

(1) “Physical abuse” as defined in Section 15610.63 of the Welfare and Institutions Code.

(2) “Neglect” as defined in Section 15610.57 of the Welfare and Institutions Code.

(3) “False imprisonment” as defined in Section 368 of the Penal Code.

(4) “Financial abuse” as defined in Section 15610.30 of the Welfare and Institutions Code.

(e) Nothing in this section shall be construed to prohibit the severance and transfer of an action or proceeding to a separate civil action pursuant to Section 801.

history: (History: Amended by Stats. 2011, Ch. 308, Sec. 9. (SB 647) Effective January 1, 2012.)


citation: PROB § 260

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

chapter: 1. Definitions

path: 2. GENERAL PROVISIONS > 8. DISCLAIMER OF TESTAMENTARY AND OTHER INTERESTS > 1. Definitions


citation: PROB § 262

text: “Beneficiary” means the person entitled, but for the person’s disclaimer, to take an interest.

part: 8. DISCLAIMER OF TESTAMENTARY AND OTHER INTERESTS


citation: PROB § 263

text:
(a) “Creator of the interest” means a person who establishes, declares, creates, or otherwise brings into existence an interest.

(b) “Creator of the interest” includes, but is not limited to, the following:

(1) With respect to an interest created by intestate succession, the person dying intestate.

(2) With respect to an interest created under a will, the testator.

(3) With respect to an interest created under a trust, the settlor.

(4) With respect to an interest created by succession to a disclaimed interest, the disclaimant of the disclaimed interest.

(5) With respect to an interest created by virtue of an election to take against a will, the testator.

(6) With respect to an interest created by creation of a power of appointment, the donor.

(7) With respect to an interest created by exercise or nonexercise of a power of appointment, the donee.

(8) With respect to an interest created by an inter vivos gift, the donor.

(9) With respect to an interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account, the deceased depositor.

(10) With respect to an interest created under an insurance or annuity contract, the owner, the insured, or the annuitant.

(11) With respect to an interest created by surviving the death of another joint tenant, the deceased joint tenant.

(12) With respect to an interest created under an employee benefit plan, the employee or other owner of an interest in the plan.

(13) With respect to an interest created under an individual retirement account, annuity, or bond, the owner.


citation: PROB § 264

text: “Disclaimant” means a beneficiary who executes a disclaimer on his or her own behalf or a person who executes a disclaimer on behalf of a beneficiary.


citation: PROB § 265

text: “Disclaimer” means any writing which declines, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary.


citation: PROB § 266

text: “Employee benefit plan” includes, but is not limited to, any pension, retirement, death benefit, stock bonus, or profit-sharing plan, system, or trust.


citation: PROB § 267

text:
(a) “Interest” includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.

(b) “Interest” includes, but is not limited to, an interest created in any of the following manners:

(1) By intestate succession.

(2) Under a will.

(3) Under a trust.

(4) By succession to a disclaimed interest.

(5) By virtue of an election to take against a will.

(6) By creation of a power of appointment.

(7) By exercise or nonexercise of a power of appointment.

(8) By an inter vivos gift, whether outright or in trust.

(9) By surviving the death of a depositor of a Totten trust account or P.O.D. account.

(10) Under an insurance or annuity contract.

(11) By surviving the death of another joint tenant.

(12) Under an employee benefit plan.

(13) Under an individual retirement account, annuity, or bond.

(14) Under a transfer on death beneficiary designation in a deed or other instrument.

(15) Any other interest created by a testamentary or inter vivos instrument or by operation of law.

history: (History: Amended by Stats. 2015, Ch. 293, Sec. 5. (AB 139) Effective January 1, 2016.)


citation: PROB § 275

text: A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer as provided in this part.

chapter: 2. General Provisions

path: 2. GENERAL PROVISIONS > 8. DISCLAIMER OF TESTAMENTARY AND OTHER INTERESTS > 2. General Provisions


citation: PROB § 276

text: A disclaimer on behalf of a conservatee shall be made by the conservator of the estate of the conservatee pursuant to a court order obtained under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4 authorizing or requiring the conservator to execute and file the disclaimer.


citation: PROB § 277

text:
(a) A disclaimer on behalf of a minor shall be made by the guardian of the estate of the minor if one has been appointed or, if none has been appointed, by a guardian ad litem of the minor. A disclaimer by a guardian is not effective unless made pursuant to a court order obtained under this section.

(b) A disclaimer on behalf of a decedent shall be made by the personal representative of the decedent. Except as provided in Part 6 (commencing with Section 10400) of Division 7, a disclaimer by a guardian or personal representative is not effective unless made pursuant to a court order obtained under this section.

(c) A petition for an order authorizing or requiring a guardian or personal representative to execute and file a disclaimer shall be filed in the superior court in the county in which the estate of the minor or decedent is administered or, if there is no administration, the superior court in any county in which administration would be proper. The petition may be filed by the guardian, personal representative, or other interested person.

(d) The petition shall:

(1) Identify the creator of the interest.

(2) Describe the interest to be disclaimed.

(3) State the extent of the disclaimer.

(4) Identify the person or persons the petitioner believes would take the interest in the event of the disclaimer.

(e) Notice of the hearing on the petition shall be given as follows:

(1) If the petition is for an order authorizing or requiring the guardian of the estate of a minor to execute and file the disclaimer, 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 persons required to be given notice under that chapter.

(2) If the petition is for an order authorizing or requiring the personal representative of a decedent to execute and file the disclaimer, notice of the hearing on the petition shall be given as provided in Section 1220.

(3) If the petition is for an order authorizing or requiring a guardian ad litem of a minor to execute and file the disclaimer, notice of the hearing on the petition shall be given to the persons and in the manner that the court shall by order direct.

(f) After hearing, the court in its discretion may make an order authorizing or requiring the guardian or personal representative to execute and file the disclaimer if the court determines, taking into consideration all of the relevant circumstances, that the minor or decedent as a prudent person would disclaim the interest if he or she had the capacity to do so.


citation: PROB § 278

text:
The disclaimer shall be in writing, shall be signed by the disclaimant, and shall:

(a) Identify the creator of the interest.

(b) Describe the interest to be disclaimed.

(c) State the disclaimer and the extent of the disclaimer.


citation: PROB § 279

text:
(a) A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.

(b) In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:

(1) An interest created under a will.

(2) An interest created by intestate succession.

(3) An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.

(4) An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.

(5) An interest created under a life insurance or annuity contract.

(6) An interest created by surviving the death of another joint tenant.

(7) An interest created under an employee benefit plan.

(8) An interest created under an individual retirement account, annuity, or bond.

(9) An interest created under a transfer on death beneficiary designation in a deed or other instrument.

(c) In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:

(1) The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.

(2) The time the first knowledge of the interest is acquired by the person able to disclaim.

(3) The time the interest becomes indefeasibly vested.

(d) In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:

(1) The time the first knowledge of the interest is acquired by the person able to disclaim.

(2) The time the interest becomes indefeasibly vested.

(e) In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:

(1) Nine months after the time the interest becomes an estate in possession.

(2) The time specified in subdivision (b), (c), or (d), whichever is applicable.

(f) If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.

history: (History: Amended by Stats. 2015, Ch. 293, Sec. 6. (AB 139) Effective January 1, 2016.)


citation: PROB § 280

text:
(a) A disclaimer shall be filed with any of the following:

(1) The superior court in the county in which the estate of the decedent is administered or, if there is no administration of the decedent’s estate, the superior court in any county in which administration of the estate of the decedent would be proper.

(2) The trustee, personal representative, other fiduciary, or person responsible for distributing the interest to the beneficiary.

(3) Any other person having custody or possession of or legal title to the interest.

(4) The creator of the interest.

(b) If a disclaimer made pursuant to this part affects real property or an obligation secured by real property and the disclaimer is acknowledged and proved in like manner as a grant of real property, the disclaimer may be recorded in like manner and with like effect as a grant 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 the disclaimer with like effect, without regard to the date when the disclaimer was filed pursuant to subdivision (a). Failure to file a disclaimer pursuant to subdivision (a) which is recorded pursuant to this subdivision does not affect the validity of any transaction with respect to the real property or the obligation secured thereby, and the general laws on recording and its effect govern any such transaction.


citation: PROB § 281

text: A disclaimer, when effective, is irrevocable and binding upon the beneficiary and all persons claiming by, through, or under the beneficiary, including creditors of the beneficiary.


citation: PROB § 282

text:
(a) Unless the creator of the interest provides for a specific disposition of the interest in the event of a disclaimer, the interest disclaimed shall descend, go, be distributed, or continue to be held (1) as to a present interest, as if the disclaimant had predeceased the creator of the interest or (2) as to a future interest, as if the disclaimant had died before the event determining that the taker of the interest had become finally ascertained and the taker’s interest indefeasibly vested. A disclaimer relates back for all purposes to the date of the death of the creator of the disclaimed interest or the determinative event, as the case may be.

(b) Notwithstanding subdivision (a), where the disclaimer is filed on or after January 1, 1985:

(1) The beneficiary is not treated as having predeceased the decedent for the purpose of determining the generation at which the division of the estate is to be made under Part 6 (commencing with Section 240) or other provision of a will, trust, or other instrument.

(2) The beneficiary of a disclaimed interest is not treated as having predeceased the decedent for the purpose of applying subdivision (d) of Section 6409 or subdivision (b) of Section 6410.


citation: PROB § 283

text: A disclaimer is not a voidable transfer by the beneficiary under the Uniform Voidable Transactions Act (Chapter 1 (commencing with Section 3439) of Title 2 of Part 2 of Division 4 of the Civil Code).

history: (History: Amended by Stats. 2015, Ch. 44, Sec. 26. (SB 161) Effective January 1, 2016.)


citation: PROB § 284

text: A person who could file a disclaimer under this part may instead file a written waiver of the right to disclaim. The waiver shall specify the interest to which the waiver applies. Upon being filed as provided in Section 280, the waiver is irrevocable and is binding upon the beneficiary and all persons claiming by, through, or under the beneficiary.


citation: PROB § 285

text:
(a) A disclaimer may not be made after the beneficiary has accepted the interest sought to be disclaimed.

(b) For the purpose of this section, a beneficiary has accepted an interest if any of the following occurs before a disclaimer is filed with respect to that interest:

(1) The beneficiary, or someone acting on behalf of the beneficiary, makes a voluntary assignment, conveyance, encumbrance, pledge, or transfer of the interest or part thereof, or contracts to do so; provided, however, that a beneficiary will not have accepted an interest if the beneficiary makes a gratuitous conveyance or transfer of the beneficiary’s entire interest in property to the person or persons who would have received the property had the beneficiary made an otherwise qualified disclaimer pursuant to this part.

(2) The beneficiary, or someone acting on behalf of the beneficiary, executes a written waiver under Section 284 of the right to disclaim the interest.

(3) The beneficiary, or someone acting on behalf of the beneficiary, accepts the interest or part thereof or benefit thereunder.

(4) The interest or part thereof is sold at a judicial sale.

(c) An acceptance does not preclude a beneficiary from thereafter disclaiming all or part of an interest if both of the following requirements are met:

(1) The beneficiary became entitled to the interest because another person disclaimed an interest.

(2) The beneficiary or other person acting on behalf of the beneficiary at the time of the acceptance had no knowledge of the interest to which the beneficiary so became entitled.

(d) The acceptance by a joint tenant of the joint tenancy interest created when the joint tenancy is created is not an acceptance by the joint tenant of the interest created when the joint tenant survives the death of another joint tenant.

history: (History: Amended by Stats. 1994, Ch. 806, Sec. 3. Effective January 1, 1995.)


citation: PROB § 286

text: The right to disclaim exists regardless of any limitation imposed on the interest of a beneficiary in the nature of an expressed or implied spendthrift provision or similar restriction.


citation: PROB § 287

text: An interest created before January 1, 1984, that has not been accepted may be disclaimed after December 31, 1983, in the manner provided in this part, but no interest that arose before January 1, 1984, in a person other than the beneficiary may be destroyed or diminished by any action of the disclaimant taken pursuant to this part.


citation: PROB § 288

text: This part does not limit or abridge any right a person may have under any other law to assign, convey, or release any property or interest, but after December 31, 1983, an interest that would otherwise be taken by a beneficiary may be declined, refused, renounced, or disclaimed only as provided in this part.


citation: PROB § 295

text: Notwithstanding any other provision of this part, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of Title 26 of the United States Code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the beneficiary, then the disclaimer or transfer is effective as a disclaimer under this part.

path: 2. GENERAL PROVISIONS > 8. DISCLAIMER OF TESTAMENTARY AND OTHER INTERESTS > 3. Disclaimers Effective Under Federal Law


citation: PROB § 300

text: A trust company may be appointed to act as a personal representative, guardian or conservator of an estate, trust director, or trustee, in the same manner as an individual. A trust company may not be appointed guardian or conservator of the person of a ward or conservatee.

history: (History: Amended by Stats. 2023, Ch. 721, Sec. 1. (SB 801) Effective January 1, 2024.)

part: 9. TRUST COMPANY AS FIDUCIARY

path: 2. GENERAL PROVISIONS > 9. TRUST COMPANY AS FIDUCIARY


citation: PROB § 301

text:
(a) A trust company appointed to act as a personal representative, or guardian or conservator of an estate, may not be required to give a bond.

(b) The liability of a trust company and the manner of its making of oaths and affidavits are governed by Article 3 (commencing with Section 1540) of Chapter 12 of Division 1 of, and Section 1587 of, the Financial Code.


citation: PROB § 330

text:
(a) Except as provided in subdivision (b), a public administrator, government official, law enforcement agency, the hospital or institution in which a decedent died, or the decedent’s employer, may, without the need to wait 40 days after death, deliver the tangible personal property of the decedent in its possession, including keys to the decedent’s residence, to the decedent’s surviving spouse, relative, or conservator or guardian of the estate acting in that capacity at the time of death.

(b) A person shall not deliver property pursuant to this section if the person knows or has reason to believe that there is a dispute over the right to possession of the property.

(c) A person that delivers property pursuant to this section shall require reasonable proof of the status and identity of the person to whom the property is delivered, and may rely on any document described in subdivision (d) of Section 13104 as proof of identity.

(d) A person that delivers property pursuant to this section shall, for a period of three years after the date of delivery of the property, keep a record of the property delivered and the status and identity of the person to whom the property is delivered.

(e) Delivery of property pursuant to this section does not determine ownership of the property or confer any greater rights in the property than the recipient would otherwise have and does not preclude later proceedings for administration of the decedent’s estate. If proceedings for administration of the decedent’s estate are commenced, the person holding the property shall deliver it to the personal representative on request by the personal representative.

(f) A person that delivers property pursuant to this section is not liable for loss or damage to the property caused by the person to whom the property is delivered.

path: 2. GENERAL PROVISIONS > 10. IMMEDIATE STEPS CONCERNING DECEDENT'S TANGIBLE PERSONAL PROPERTY AND SAFE DEPOSIT BOX