Existing law terminates the guardianship of a ward upon the death, adoption, or emancipation of the ward, as specified.

Existing law specifies that the termination of the guardian-ward or conservator-conservatee relationship does not cause the court to lose jurisdiction of the proceeding for, among other things, the purpose of settling the accounts of the guardian or conservator, as specified. Existing law also confers upon a guardian or conservator a continued duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the wards or conservatees estate or other disposition according to law. Existing law, upon the death of a ward or conservatee, authorizes the guardian or conservator to, among other things, contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee and for other specified unpaid fees.

This bill would revise the former provision to include a cross-reference to the latter provisions, such that the guardianship of the estate of the ward would terminate upon the death of the ward, except as otherwise provided by the latter provisions described above or as otherwise provided by law.

Existing law terminates the guardianship of a ward upon the death, adoption, or emancipation of the ward, as specified.

Existing law specifies that the termination of the guardian-ward or conservator-conservatee relationship does not cause the court to lose jurisdiction of the proceeding for, among other things, the purpose of settling the accounts of the guardian or conservator, as specified. Existing law also confers upon a guardian or conservator a continued duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the wards or conservatees estate or other disposition according to law. Existing law, upon the death of a ward or conservatee, authorizes the guardian or conservator to, among other things, contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee and for other specified unpaid fees.

This bill would revise the former provision to include a cross-reference to the latter provisions, such that the guardianship of the estate of the ward would terminate upon the death of the ward, except as otherwise provided by the latter provisions described above or as otherwise provided by law.

Existing law terminates the guardianship of a ward upon the death, adoption, or emancipation of the ward, as specified.

Existing law specifies that the termination of the guardian-ward or conservator-conservatee relationship does not cause the court to lose jurisdiction of the proceeding for, among other things, the purpose of settling the accounts of the guardian or conservator, as specified. Existing law also confers upon a guardian or conservator a continued duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the wards or conservatees estate or other disposition according to law. Existing law, upon the death of a ward or conservatee, authorizes the guardian or conservator to, among other things, contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee and for other specified unpaid fees.

This bill would revise the former provision to include a cross-reference to the latter provisions, such that the guardianship of the estate of the ward would terminate upon the death of the ward, except as otherwise provided by the latter provisions described above or as otherwise provided by law.

Existing law terminates the guardianship of a ward upon the death, adoption, or emancipation of the ward, as specified.

Existing law also confers upon a guardian or conservator a continued duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the wards or conservatees estate or other disposition according to law. Existing law, upon the death of a ward or conservatee, authorizes the guardian or conservator to, among other things, contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee and for other specified unpaid fees.

This bill would revise the former provision to include a cross-reference to the latter provisions, such that the guardianship of the estate of the ward would terminate upon the death of the ward, except as otherwise provided by the latter provisions described above or as otherwise provided by law.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2113

Author:(Obernolte)

As Amended Ver:May 7, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Provides that a guardianship of the estate may not necessarily terminate on the death of the ward. Specifically, this bill provides that a guardianship of the estate terminates upon the death of the ward, except as otherwise provided by law, including as provided under specific existing law which:

1. Requires that the guardian has the duty of custody and conservation of the guardian's estate after death, pending delivery of the estate to the guardian's personal representative or other disposition as required by law.
2. Allows the guardian, upon the death of the ward, to, among other things, settle accounts, contract and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward, and for unpaid court-approved attorney's fees, and to pay the unpaid expenses of the guardianship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward which is under the control of the guardian.

The Senate amendments extend what a guardian may do on the death of the ward to include, among other things, settling accounts.

EXISTING LAW:

1. Allows a court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, or 18 to 21 years of age as specified, taking into consideration the best interest of the proposed ward. (Probate Code Section 1501 et seq., 1510.1. Unless otherwise stated, all further statutory references are to that code.)
2. Provides that a guardianship of the person or estate or both terminates when the ward attains majority, except as provided, and a guardianship of the person terminates upon the death of the ward, the adoption of the ward, or upon the emancipation of the ward. (Section 1600.)
3. Requires that a guardian or conservator has the duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the ward's or conservatee's estate or other disposition according to law, and the guardian or conservator has such powers, as provided, as are necessary for the performance of that duty. (Section 2467.)
4. Upon the death of a ward or conservatee, allows the guardian or conservator to contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee, and for unpaid court-approved attorney's fees, and may pay the unpaid expenses of the guardianship or conservatorship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward or conservatee which is under the control of the guardian or conservator. If after making those payments, the remaining estate does not exceed the amount of a small estate (currently $150,000 or less), allows the guardian or conservator to petition the court for an order permitting the guardian or conservator to liquidate the estate. Allows the guardian or conservator to make such a petition even if there is a will, if the will does not appoint an executor or if the named executor refuses to act. (Section 2631.)

FISCAL EFFECT: None

COMMENTS: A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect a minor, the minor's estate, or both. Historically, guardianships were established for the protection of orphans, and guardianship of the child was combined with guardianship of the child's estate. Guardianships today are most often used to protect minors whose parents are still living and are usually established by relatives or other caring adults to provide stability and needed care for minors whose parents fail to provide these essentials to them.

Guardianships typically expire on a ward's 18th birthday, although certain guardianships can last up to 21 years of age (See AB 900, (Levine), Chapter 694, Statutes. 2015). Guardianships of the person also specifically expire upon the death, adoption, or emancipation of the ward. However, even after the death of a ward, a guardian continues to have certain duties. This bill seeks to harmonize those provisions to clarify that some duties of the guardian continue after the ward's death.

This Bill Seeks to Harmonize Statutes That Could be Read as Conflicting: Existing law specifically states that a guardianship of the person terminates upon, among other occurrences, the death of the ward. (Section 1600.) However, a guardian retains certain responsibilities even after the death of the ward. In particular, Section 2467 requires that a guardian has the duty of custody and conservation of the ward's estate after death, pending delivery of the estate to the ward's personal representative or other disposition. Additionally, Section 2631 allows the guardian, upon the death of the ward, to contract, and pay a reasonable sum, for the expenses of the last illness and the disposition of the remains of the deceased ward, and for unpaid court-approved attorney's fees, and to pay the unpaid expenses of the guardianship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward which is under the control of the guardian. The guardian may even petition the court for an order permitting the guardian or conservator to liquidate the estate if, after making any payments, the remaining estate does not exceed the amount of a small estate (currently $150,000 or less).

However, because Section 1600 specifically states that a guardianship of the person terminates upon the death of the ward, some financial institutions have apparently frozen a ward's accounts and not permitted the guardian to pay bills, including funeral expenses.

This bill seeks to harmonize these potentially conflicting code sections by specifically referencing the code sections that permit a guardian to take action after the ward's death in the section that today states that the guardianship is terminated by the ward's death. In order to prevent any other conflicts, the bill also allows the guardianship to continue "as otherwise provided by law." These changes should help ensure that a guardian can take the steps necessary to pay bills and protect the ward's estate, even after the ward's death, without having to go to court to seek special permission under today's potentially confusing statutory provisions.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003511

 CONSENT  

Bill No: AB 2113

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/12/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 73-0, 4/2/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill provides that guardianship of a ward’s estate terminates upon the death of the ward, except when the law provides that the guardian has certain powers and responsibilities, including conserving the estate and paying unpaid expenses.

ANALYSIS:

Existing law:

1. Provides for the nomination and appointment of a guardian of a person or estate, or both, in certain circumstances, taking into consideration the best interests of the proposed ward. (Prob. Code Sec. 1500 et seq.)
2. Provides that a relative or other person on behalf of a minor, or a minor 12 years of age or older, may file a petition for the appointment of a guardian of the minor. (Prob. Code Sec. 1510(a).)
3. Provides that a petition for guardianship may request the appointment of a guardian of the person or estate of the minor, or both, and requires such a petition to include, among other things, a statement that the appointment is necessary or convenient. (Prob. Code Sec. 1510(b).)
4. Provides that a guardianship of the person or estate or both terminates when the ward attains majority, except as provided, and a guardianship of the person terminates upon the death of the ward, the adoption of the ward, or upon the emancipation of the ward. (Prob. Code Sec. 1600.)
5. Provides that a guardian continues to have the duty of custody and conservation of the estate after the death of the ward, pending the delivery of the estate to the personal representative of the ward’s estate or other disposition according to law, and existing law grants a guardian such powers as are necessary for the performance of these duties. (Prob. Code Sec. 2467(a) & (b).)
6. Provides that the termination of the relationship of guardian and ward by the death of the ward does not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the guardian for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts or upon the termination of the relationship. (Prob. Code Sec. 2630.)
7. Provides that, upon the death of a ward, the guardian may use the deceased ward’s personal property to defray expenses related to the ward’s illness, disposition of the ward’s remains, court-approved attorney’s fees, and other unpaid expenses of the guardianship, as prescribed. (Prob. Code Sec. 2631(a).)
8. Authorizes a guardian to petition the court to permit the guardian to liquidate a deceased ward’s estate if the estate does not exceed an amount specified in law (currently $150,000), in specified circumstances. (Prob. Code Sec. 2631(a).)
9. Authorizes a court, when a guardianship terminates before the inventory of the estate has been filed, to authorize a guardian to forgo filing the inventory and appraisal, and instead to file an account covering only those assets of the state for which the guardian has possession or control. (Prob. Code Sec. 2633.)

This bill specifies that a guardianship of the estate terminates upon the death of the ward, except with regard to the duties specified above, or as otherwise provided by law.

Background

This bill seeks to eliminate confusion regarding guardianships of estates. Existing law generally provides that guardianship of the person or estate, or both, terminates when the ward reaches 18 years of age. Existing law also provides that a guardianship of the person terminates upon death of the ward. However, existing law does not specify whether guardianship of the estate continues after the ward dies, but existing law does contain other provisions that establish that a guardian retains some authority and obligations, including paying the ward’s final bills and conserving the estate before delivering it to the personal representative.

Although a court would strive to give effect to all of these provisions, some financial institutions have concluded that the guardians of estates lose all authority and responsibility with regard to the estate when the ward dies. As a result, these financial institutions have frozen accounts of deceased wards, preventing the guardians of their estate from paying their debts, covering their funeral and burial expenses, and preserving their estate. This bill seeks to end that practice.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/12/18)

None received

OPPOSITION: (Verified 6/12/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

AB 2113 would clarify the continuing authority and obligation of the guardian of the estate under other provisions of the Probate Code to pay last expenses, maintain custody and control, and to preserve the assets prior to delivery to the personal representative, or as ordered by the Court. The bill will help dispel confusion by financial institutions regarding a guardian’s authority over estate finances after the death of the ward until a personal representative is appointed.

ASSEMBLY FLOOR: 73-0, 4/2/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Rendon

NO VOTE RECORDED: Carrillo, Cristina Garcia, Eduardo Garcia, Wood

Prepared by:

6/15/18 10:19:36

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2113 (Author:Obernolte)

Version: May 7, 2018

Hearing Date: June 12, 2018

Fiscal: No

Urgency: No

Consultant: JDT

SUBJECT

Estates and trusts: guardianships

DESCRIPTION

This bill provides that guardianship of a ward’s estate terminates upon the death of the ward, except when the law provides that the guardian has certain powers and responsibilities, including conserving the estate and paying unpaid expenses.

BACKGROUND

The Probate Code sets forth a statutory scheme governing the appointment of guardians to provide care for a child, also called a “ward,” or to manage the ward’s assets, or both. Guardianship over the ward is called “guardianship of the person,” while guardianship of the ward’s assets is called “guardianship of the estate.” A guardian of the estate manages the child’s income, money, or other property.

Existing law generally provides that guardianship of the person or estate, or both, terminates when the ward reaches 18 years of age. Existing law also provides that a guardianship of the person terminates upon death of the ward. Existing law does not specify whether guardianship of the estate continues after the ward dies, but other provisions of existing law indicate that the guardian retains some authority and obligations, including paying the ward’s final bills and conserving the estate before delivering it to the personal representative.

This bill clarifies that the guardianship of the estate terminates when the ward dies, except with regard to provisions of law, such as those described above, that provide otherwise.

CHANGES TO EXISTING LAW

Existing law provides for the nomination and appointment of a guardian of a person or estate, or both, in certain circumstances, taking into consideration the best interests of the proposed ward. (Prob. Code Sec. 1500 et seq.)

Existing law provides that a relative or other person on behalf of a minor, or a minor 12 years of age or older, may file a petition for the appointment of a guardian of the minor. (Prob. Code Sec. 1510(a).)

Existing law provides that a petition for guardianship may request the appointment of a guardian of the person or estate of the minor, or both, and requires such a petition to include, among other things, a statement that the appointment is necessary or convenient. (Prob. Code Sec. 1510(b).)

Existing law provides that a guardianship of the person or estate or both terminates when the ward attains majority, except as provided, and a guardianship of the person terminates upon the death of the ward, the adoption of the ward, or upon the emancipation of the ward. (Prob. Code Sec. 1600.)

Existing law provides that a guardian continues to have the duty of custody and conservation of the estate after the death of the ward, pending the delivery of the estate to the personal representative of the ward’s estate or other disposition according to law, and existing law grants a guardian such powers as are necessary for the performance of these duties. (Prob. Code Sec. 2467(a) & (b).)

Existing law provides that the termination of the relationship of guardian and ward by the death of the ward does not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the guardian for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts or upon the termination of the relationship. (Prob. Code Sec. 2630.)

Existing law provides that, upon the death of a ward, the guardian may use the deceased ward’s personal property to defray expenses related to the ward’s illness, disposition of the ward’s remains, court-approved attorney’s fees, and other unpaid expenses of the guardianship, as prescribed. (Prob. Code Sec. 2631(a).)

Existing law authorizes a guardian to petition the court to permit the guardian to liquidate a deceased ward’s estate if the estate does not exceed an amount specified in law (currently $150,000), in specified circumstances. (Prob. Code Sec. 2631(a).)

Existing law authorizes a court, when a guardianship terminates before the inventory of the estate has been filed, to authorize a guardian to forgo filing the inventory and appraisal, and instead to file an account covering only those assets of the state for which the guardian has possession or control. (Prob. Code Sec. 2633.)

This bill would specify that a guardianship of the estate terminates upon the death of the ward, except with regard to the duties specified above, or as otherwise provided by law.

COMMENT

1. Stated need for the bill

The author writes:

AB 2113 would clarify the continuing authority and obligation of the guardian of the estate under other provisions of the Probate Code to pay last expenses, maintain custody and control, and to preserve the assets prior to delivery to the personal representative, or as ordered by the Court. The bill will help dispel confusion by financial institutions regarding a guardian’s authority over estate finances after the death of the ward until a personal representative is appointed.

The sponsor of the bill, Conference of California Bar Associations, writes:

AB 2113 will clarify in statute that a guardian retains authority to perform certain

functions with regard to a ward’s estate following the ward’s death, including

maintaining custody and control over the estate until its delivery to the personal

representative and paying reasonable expenses relating to the estate.

Probate Code §1600 provides that a guardianship of the person terminates upon the death of the ward, but the section is silent on what happens to a guardianship of the estate under the same circumstance. Because of this silence and lack of clarity, banks too often have frozen guardianship accounts when a ward dies pending appointment of a personal representative, even though other code sections (specifically Probate Code §§2467 and 2631) specifically authorize the guardian to take specific actions.

AB 2113 will amend §1600 to remove this confusion, and to clarify the continuing

authority and obligation of the guardian of the estate under these other Probate Code provisions to pay last expenses, and to maintain custody and control of the estate and preserve the estate’s assets prior to delivery to the personal representative, or as ordered by the Court. This is a small but important change that will avoid unnecessary and wasteful delays in estate administration upon the death of a ward.

2. Clarification of a guardian’s ongoing duties

This bill seeks to eliminate confusion regarding guardianships of estates. Existing law generally provides that guardianship of the person or estate, or both, terminates when the ward reaches 18 years of age. Existing law also provides that a guardianship of the person terminates upon death of the ward. However, existing law does not specify whether guardianship of the estate continues after the ward dies, but existing law does contain other provisions that establish that a guardian retains some authority and obligations, including paying the ward’s final bills and conserving the estate before delivering it to the personal representative.

Although a court would strive to give effect to all of these provisions, some financial institutions have concluded that the guardians of estates lose all authority and responsibility with regard to the estate when the ward dies. As a result, these financial institutions have frozen accounts of deceased wards, preventing the guardians of their estate from paying their debts, covering their funeral and burial expenses, and preserving their estate. This bill seeks to end that practice.

Support: None known

Opposition: None known

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation: AB 2236 (Maienschein, 2018) would similarly clarify that although a guardianship terminates upon death of a ward, the guardian continues to have certain responsibilities, including conserving the estate and paying unpaid expenses. This bill is set for hearing in the Senate Judiciary Committee on June 12, 2018.

Prior Legislation: None known

Prior Vote:

Assembly Floor (Ayes 73, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

Date of Hearing: March 20, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2113

Author:(Obernolte) – As Introduced Ver:February 8, 2018

PROPOSED CONSENT

SUBJECT: Estates and trusts: TERMINATION OF guardianship OF THE ESTATE

KEY ISSUE: should conflicting statutes be clarified to ensure that, after the death of a ward, the guardian can take steps to pay final bills and conserve the estate PRIOR TO DELIVERY TO THE PERSONAL REPRESENTATIVE OF THE WARD'S ESTATE?

SYNOPSIS

A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect a minor, the minor's estate, or both. Guardianships typically expire upon a ward’s 18th birthday, although certain guardianships can last up to 21 years of age (See AB 900, (Levine), Chap. 694, Stats. 2015). Guardianships of the person also expire, by statute, upon the death, adoption, or emancipation of the ward. However, even after the death of a ward, a guardian continues to have certain responsibilities, including conserving the estate. According to the author, some financial institutions have frozen deceased wards' bank accounts and not permitted the guardian to pay bills, including funeral expenses. This bill, sponsored by the Conference of California Bar Associations, seeks to harmonize these possibly conflicting provisions by clarifying that some duties of the guardian can continue after the ward's death. This bill is very similar to AB 2236 (Maienschein), which makes the same change for a conservatorship and is also being heard today in this Committee. There is no reported opposition to this bill.

SUMMARY: Provides that a guardianship of the estate may not necessarily terminate on the death of the ward. Specifically, this bill provides that a guardianship of the estate terminates upon the death of the ward, except as otherwise provided by law, including as provided under specific existing law which:

1. Requires that the guardian has the duty of custody and conservation of the guardian's estate after death, pending delivery of the estate to the guardian's personal representative or other disposition as required by law.
2. Allows the guardian, upon the death of the ward, to contract and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward, and for unpaid court-approved attorney’s fees, and to pay the unpaid expenses of the guardianship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward which is under the control of the guardian.

EXISTING LAW:

1. Allows a court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, or 18 to 21 years of age as specified, taking into consideration the best interest of the proposed ward. (Probate Code Section 1501 et seq., 1510.1. Unless otherwise stated, all further statutory references are to that code.)
2. Provides that a guardianship of the person or estate or both terminates when the ward attains majority, except as provided, and a guardianship of the person terminates upon the death of the ward, the adoption of the ward, or upon the emancipation of the ward. (Section 1600.)
3. Requires that a guardian or conservator has the duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery of the estate to the personal representative of the ward’s or conservatee’s estate or other disposition according to law, and the guardian or conservator has such powers, as provided, as are necessary for the performance of that duty. (Section 2467.)
4. Upon the death of a ward or conservatee, allows the guardian or conservator to contract for and pay a reasonable sum for the expenses of the last illness and the disposition of the remains of the deceased ward or conservatee, and for unpaid court-approved attorney’s fees, and may pay the unpaid expenses of the guardianship or conservatorship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward or conservatee which is under the control of the guardian or conservator. If after making those payments, the remaining estate does not exceed the amount of a small estate (currently $150,000 or less), allows the guardian or conservator to petition the court for an order permitting the guardian or conservator to liquidate the estate. Allows the guardian or conservator to make such a petition even if there is a will, if the will does not appoint an executor or if the named executor refuses to act. (Section 2631.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect a minor, the minor's estate, or both. Historically, guardianships were established for the protection of orphans, and guardianship of the child was combined with guardianship of the child's estate. Guardianships today are most often used to protect minors whose parents are still living and are usually established by relatives or other caring adults to provide stability and needed care for minors whose parents fail to provide these essentials to them.

Guardianships typically expire on a ward’s 18th birthday, although certain guardianships can last up to 21 years of age (See AB 900, (Levine), Chap. 694, Stats. 2015). Guardianships of the person also specifically expire upon the death, adoption, or emancipation of the ward. However, even after the death of a ward, a guardian continues to have certain duties. This bill seeks to harmonize those provisions to clarify that some duties of the guardian continue after the ward's death.

In support of the bill, the author states: "AB 2113 would clarify the continuing authority and obligation of the guardian of the estate under other provisions of the Probate Code to pay last expenses, maintain custody and control, and to preserve the assets prior to delivery to the personal representative, or as ordered by the Court. The bill will help dispel confusion by financial institutions regarding a guardian’s authority over estate finances after the death of the ward until a personal representative is appointed."

This Bill Seeks to Harmonize Statutes That Could be Read as Conflicting: Existing law specifically states that a guardianship of the person terminates upon, among other occurrences, the death of the ward. (Section 1600.) However, a guardian retains certain responsibilities even after the death of the ward. In particular, Section 2467 requires that a guardian has the duty of custody and conservation of the ward's estate after death, pending delivery of the estate to the ward's personal representative or other disposition. Additionally, Section 2631 allows the guardian, upon the death of the ward, to contract, and pay a reasonable sum, for the expenses of the last illness and the disposition of the remains of the deceased ward, and for unpaid court-approved attorney’s fees, and to pay the unpaid expenses of the guardianship accruing before or after the death of the ward or conservatee, in full or in part, to the extent reasonable, from any personal property of the deceased ward which is under the control of the guardian. The guardian may even petition the court for an order permitting the guardian or conservator to liquidate the estate if, after making any payments, the remaining estate does not exceed the amount of a small estate (currently $150,000 or less).

However, because Section 1600 specifically states that a guardianship of the person terminates upon the death of the ward, some financial institutions have apparently frozen a ward's accounts and not permitted the guardian to pay bills, including funeral expenses.

This bill seeks to harmonize these potentially conflicting code sections by specifically referencing the code sections that permit a guardian to take action after the ward's death – Sections 2467 and 2531 – in the section that today states that the guardianship is terminated by the ward's death. In order to prevent any other conflicts, the bill also allows the guardianship to continue "as otherwise provided by law." These changes should help ensure that a guardian can take the steps necessary to pay bills and protect the ward's estate, even after the ward's death, without having to go to court to seek special permission under today's potentially confusing statutory provisions.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334