(1)Existing law governs the procedures for litigation to resolve certain disputes relating to property that is subject to an estate, conservatorship, guardianship, or trust. These procedures include, among others, a requirement to serve the petition for relief and a notice of hearing on specific persons.

This bill would require the notice of hearing to include a description of the property at issue, whether the petition seeks specified damages or attorneys fees and costs, and a statement that any person interested in the property may file a response to the petition.

(2)Existing law requires that the rules of practice relating to discovery in civil actions apply to actions under the Probate Code, except as provided.

The bill would provide when a petitioner in specified actions under the Probate Code may commence discovery, including, among others, an action to resolve a dispute relating to property that is subject to an estate, conservatorship, guardianship, or trust.

(1)Existing law governs the procedures for litigation to resolve certain disputes relating to property that is subject to an estate, conservatorship, guardianship, or trust. These procedures include, among others, a requirement to serve the petition for relief and a notice of hearing on specific persons.

This bill would require the notice of hearing to include a description of the property at issue, whether the petition seeks specified damages or attorneys fees and costs, and a statement that any person interested in the property may file a response to the petition.

(2)Existing law requires that the rules of practice relating to discovery in civil actions apply to actions under the Probate Code, except as provided.

The bill would provide when a petitioner in specified actions under the Probate Code may commence discovery, including, among others, an action to resolve a dispute relating to property that is subject to an estate, conservatorship, guardianship, or trust.

(1)Existing law governs the procedures for litigation to resolve certain disputes relating to property that is subject to an estate, conservatorship, guardianship, or trust. These procedures include, among others, a requirement to serve the petition for relief and a notice of hearing on specific persons.

This bill would require the notice of hearing to include a description of the property at issue, whether the petition seeks specified damages or attorneys fees and costs, and a statement that any person interested in the property may file a response to the petition.

(2)Existing law requires that the rules of practice relating to discovery in civil actions apply to actions under the Probate Code, except as provided.

The bill would provide when a petitioner in specified actions under the Probate Code may commence discovery, including, among others, an action to resolve a dispute relating to property that is subject to an estate, conservatorship, guardianship, or trust.

(1)Existing law governs the procedures for litigation to resolve certain disputes relating to property that is subject to an estate, conservatorship, guardianship, or trust. These procedures include, among others, a requirement to serve the petition for relief and a notice of hearing on specific persons.

This bill would require the notice of hearing to include a description of the property at issue, whether the petition seeks specified damages or attorneys fees and costs, and a statement that any person interested in the property may file a response to the petition.

(2)Existing law requires that the rules of practice relating to discovery in civil actions apply to actions under the Probate Code, except as provided.

The bill would provide when a petitioner in specified actions under the Probate Code may commence discovery, including, among others, an action to resolve a dispute relating to property that is subject to an estate, conservatorship, guardianship, or trust.

 CONSENT  

Bill No: AB 308

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 6/6/17

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

NO VOTE RECORDED: Stern

ASSEMBLY FLOOR: 76-0, 3/20/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Trust and Estates Section of the State Bar of California

DIGEST:

This bill expands the notice provided to interested individuals in probate actions, specifically requiring the notice to include a description of the subject property and a description of the relief sought. Additionally, this bill clarifies the application of the Code of Civil Procedure’s discovery rules to the Probate Code, by adding to the Probate Code when a petitioner may commence discovery. This bill does not expand whom discovery may be obtained from or allow discovery to commence any earlier.

ANALYSIS:

Existing law:

1. Provides that unless otherwise specified in the Probate Code, the rules of practice applicable to general civil actions under the Code of Civil Procedure apply to actions under the Probate Code. (Prob. Code Sec. 1000.)
2. Creates a procedure to resolve disputes about property ownership subject to an estate, conservatorship, guardianship or trust. (Prob. Code Sec. 850 et seq.)
3. Provides that at least 30 days prior to the day of the hearing, the petitioner shall provide notice of the hearing and a copy of the petition to all of the following persons where applicable:
   1. the personal representative, conservator, guardian, or trustee as appropriate; and
   2. each person claiming an interest in, or having title to or possession of, the property. (Prob. Code Sec. 851(a).)
4. Provides that the following parties must receive notice of the hearing, together with a copy of the petition, at least 15 days prior to the day of the hearing:
   1. the personal representative;
   2. any person interested in the estate, whether as devisee, heir, creditor, beneficiary under a trust, or otherwise interested;
   3. the guardian or conservator;
   4. the ward or the conservatee;
   5. the spouse or domestic partner of the ward or conservatee;
   6. any person who has requested special notice of the matter; and
   7. if the matter contains a trust
      1. all trustees;
      2. all beneficiaries; and
      3. if the petition relates to a charitable trust subject to the jurisdiction of the Attorney General, the Attorney General.
5. Provides that a trustee or beneficiary of a trust may petition a court concerning the internal affairs of the trust or to determine the existence of the trust. (Prob. Code Sec. 17200.)
6. Provides that commencement of particular discovery activities against a defendant, including a deposition, interrogatories, request for inspection of records, and request for admission commence a certain number of days after service of a summons or appearance by the defendant, whichever occurs first. (Code Civ. Proc. Secs. 2025.210, 2030.020, 2031.020, and 2033.020.)
7. Provides that except to the extent that the Probate Code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings, apply to and constitute the rules of practice in Probate Code proceedings. (Prob. Code Sec. 1000.)

This bill:

1. Provides that a notice of hearing shall contain all of the following:
   1. a description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property the notice shall state the street address or a description of its location and the assessor’s parcel number;
   2. if the petition seeks relief for property that was wrongfully taken, concealed or disposed of in bad faith, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested; and
   3. a statement advising any person interested in the property that he or she may file a response to the petition.
2. Provides for a petition in a proceeding about property ownership subject to an estate, conservatorship, guardianship, or trust, to commence discovery upon any person who receives notices of the hearing in accordance with the time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, except that the time periods shall commence to run upon a service of the petition and notice of hearing.
3. Provides that for purposes of determining when a petitioner in a proceeding under the Probate Code may commence discovery as to nonparties, the time periods set forth in the Civil Discovery Act under the Code of Civil Procedure shall apply, except that the time periods shall commence to run upon service of the petition and notice of hearing upon all parties entitled to notice.
4. Provides that a petition may commence discovery upon a trustee in accordance with the same time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, except that the time periods shall commence to run upon service of the petition and notice of hearing upon the trustee or the trustee’s appearance in the proceeding, whichever occurs first.
5. Provides provisions that state nothing in this subdivision shall either alter when a respondent in applicable proceedings may commence discovery or increase the extent to which nonparties may be subject to discovery.

Comments

Purpose of the bill. Trust and estate litigation procedures are generally controlled by the Code of Civil Procedure. Some variation exists to accommodate substantive differences between trust and estate and civil litigation. However, in some instances there are divergent procedures which are not warranted and are likely unintended. As much as reasonably possible, there should be conformity between trust and estate and civil litigation procedures.

The timing upon which discovery may be commenced in civil and trust proceedings is out of sync. The purpose of this proposal is to bring greater conformity to the timing rules for commencement of discovery by adding three subdivisions to Probate Code Section 1000 as described above.

In addition, under Probate Code Section 850, an order may be sought from the court determining rights and claims to property that is in the control or possession of the estate or another party. Although the rights and claims of interested persons are being determined in the proceeding, the notice of hearing as prescribed under current law fails to convey the significance of the action, raising a due process issue. A further purpose of this proposal is to provide enhanced notice to better identify the property at issue, advise whether additional relief is sought under Probate Code Section 859, and inform the recipient that there is a right to file a response to the Petition.

Clarification of the applicability of the Code of Civil Procedure. Under Section 1000 of the Probate Code, the rules of practice applicable to civil actions, including discovery proceedings, apply to, and constitute the rules of practice in Probate Code proceedings. However, the Code of Civil Procedure provides for discovery to commence only after service of a summons or appearance by the defendant. (Code Civ. Proc. Secs. 2025.210(b), 2030.020(b), 2031.020(b), and 2033.020(b).) For some actions under the Probate Code, this does not present any procedural concerns, as the issuance of a summons is provided for. For example, when a will is contested, the contestant files with the court an objection to the probate of a will, then a summons is issued and served. (Prob. Code Sec. 8250.)

Concern over the applicability of discovery procedures as provided for in the Code of Civil Procedure arises because this is not the case for all probate actions. Particularly in cases involving a trust, practitioners have raised concerns because there is no statutory authority providing the authority needed to issue a summons. Due to this lack of statutory authority to issue a summons, the Trusts and Estates Section of the State Bar (TEXCOM), the sponsor of this bill, seeks to clarify the application of discovery procedures found within the Code of Civil Procedure to actions within the Probate Code that may not involve the issuance of a summons.

To remedy these concerns, this bill adds two new sections to the Probate Code and amends Section 1000 to clearly state that a petition may commence discovery upon any person who receives notice of the hearing in accordance with the same time periods set forth in the Civil Discovery Act of the Code of Civil Procedure. The time periods applicable to discovery for these actions shall commence to run upon service of the petition and notice of the hearing upon the trustee or the trustee’s appearance in the proceeding. These provisions clarify the applicability of the Civil Discovery Act to these Probate Actions, and provide for the triggering event to be the service of the petition, rather than a summons, since these actions do not currently include provisions for a summons.

Expansion of notice requirements for transfers of property. Existing law contains provisions for who shall be provided notice of the hearing and a copy of the petition. (Prob. Code Sec. 851.) This bill provides that a notice of hearing shall contain all of the following:

• a description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property, for real property the notice shall state the street address or a description of its location and the assessor’s parcel number;
• if the petition seeks relief for property that was wrongfully taken, concealed or disposed of in bad faith, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested; and
• a statement advising any person interested in the property that he or she may file a response to the petition.

In regards to this expansion, TEXCOM writes:

While working on this project, TEXCOM was also alerted to concerns regarding the Notice of Hearing as it relates to Probate Code section 850 Petitions. A due process issue was raised by an attorney and echoed by litigators on TEXCOM. Counsel had a client who was served with a Probate Code section 850 Petition and a Notice of Hearing concerning property in his possession that was claimed to belong to the petitioning estate. The language of a standard Notice of Hearing fails to convey the potential seriousness of the proceeding to an interested holder of property. It states: “This notice is required by law. This notice does not require you to appear in court, but you may attend the hearing if you wish.”

Counsel’s client did not realize the significance of the hearing, did not retain counsel, and when he failed to appear, the court defaulted him and entered judgment resulting in the loss of the property. Counsel was then in the position of attempting to set aside the default.

In addition to its failure to convey urgency to the interested party, a Notice of Hearing in an 850 Petition does not clearly identify the property affected by the petition, whether or not a money judgment of double the value of the property in question is being sought, or alert the recipient of the right to file a response. Even though it may not go far enough, TEXCOM believes the proper approach is found in Local Rule 4.37 of the Los Angeles County Superior Court. That Rule mandates that the Notice of Hearing on an 850 Petition shall include a description of the property in question and advise that interested persons have a right to file a response.

The change proposed by this bill is modeled after Local Rule 4.37 of the Los Angeles County Superior Court.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/6/17)

Trust and Estates Section of the State Bar of California (source)

OPPOSITION: (Verified 6/6/17)

None received

ASSEMBLY FLOOR: 76-0, 3/20/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Irwin, 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, Wood, Rendon

NO VOTE RECORDED: Dahle, Holden, Jones-Sawyer, Ridley-Thomas

Prepared by: Marisa Shea / JUD. / (916) 651-4113

6/7/17 13:37:09

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 308 (Author:Maienschein)

Version: March 9, 2017

Hearing Date: June 6, 2017

Fiscal: No

Urgency: No

Consultant: MS

SUBJECT

Procedures for litigation

DESCRIPTION

This bill would expand the notice provided to interested individuals in probate actions, specifically requiring the notice to include a description of the subject property and a description of the relief sought. Additionally, this bill clarifies the application of the Code of Civil Procedure’s discovery rules to the Probate Code, by adding to the probate code when a petitioner may commence discovery. This bill does not expand whom discovery may be obtained from or allow discovery to commence any earlier.

BACKGROUND

Under existing law, proceedings under the Probate Code are generally governed by the rules of civil procedure found in the Code of Civil Procedure. (Prob. Code Sec. 1000.) There are proceedings within the Probate Code where procedural issues are specific to the Probate Code, for such actions specific rules of procedure are found within the Probate Code. For these actions, the specific procedures found within the Probate Code apply, rather than the rules of civil procedure. (Id.)

This bill would clarify the applicability of the rules of civil procedure regarding discovery to proceedings under the Probate Code for actions that do not have procedural issues specific to the Probate Code. Additionally, this bill would expand the details contained in notice provided on probate actions to transfer property.

CHANGES TO EXISTING LAW

Existing law provides that unless otherwise specified in the Probate Code, the rules of practice applicable to general civil actions under the Code of Civil Procedure apply to actions under the Probate Code. (Prob. Code Sec. 1000.)

Existing law creates a procedure to resolve disputes about property ownership subject to an estate, conservatorship, guardianship or trust. (Prob. Code Sec. 850 et seq.)

Existing law provides that at least 30 days prior to the day of the hearing, the petitioner shall provide notice of the hearing and a copy of the petition to all of the following persons where applicable:

• the personal representative, conservator, guardian, or trustee as appropriate; and
• each person claiming an interest in, or having title to or possession of, the property. (Prob. Code Sec. 851(a).)

Existing law provides that the following parties must receive notice of the hearing, together with a copy of the petition, at least 15 days prior to the day of the hearing:

• the personal representative;
• any person interested in the estate, whether as devisee, heir, creditor, beneficiary under a trust, or otherwise interested;
• the guardian or conservator;
• the ward or the conservatee;
• the spouse or domestic partner of the ward or conservatee;
• any person who has requested special notice of the matter; and
• if the matter contains a trust
  • all trustees;
  • all beneficiaries; and
  • if the petition relates to a charitable trust subject to the jurisdiction of the Attorney General, the Attorney General.

Existing law provides that a trustee or beneficiary of a trust may petition a court concerning the internal affairs of the trust or to determine the existence of the trust. (Prob. Code Sec. 17200.)

Existing law provides that commencement of particular discovery activities against a defendant, including a deposition, interrogatories, request for inspection of records, and request for admission commence a certain number of days after service of a summons or appearance by the defendant, whichever occurs first. (Code Civ. Proc. Secs. 2025.210, 2030.020, 2031.020, and 2033.020.)

Existing law provides that except to the extent that the Probate Code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings, apply to and constitute the rules of practice in Probate Code proceedings. (Prob. Code Sec. 1000.)

This bill would provide that a notice of hearing shall contain all of the following:

• a description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property the notice shall state the street address or a description of its location and the assessor’s parcel number;
• if the petition seeks relief for property that was wrongfully taken, concealed or disposed of in bad faith, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested; and
• a statement advising any person interested in the property that he or she may file a response to the petition.

This bill would provide for a petition in a proceeding about property ownership subject to an estate, conservatorship, guardianship, or trust, to commence discovery upon any person who receives notices of the hearing in accordance with the time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, except that the time periods shall commence to run upon a service of the petition and notice of hearing.

This bill would provide that for purposes of determining when a petitioner in a proceeding under the Probate Code may commence discovery as to nonparties, the time periods set forth in the Civil Discovery Act under the Code of Civil Procedure shall apply, except that the time periods shall commence to run upon service of the petition and notice of hearing upon all parties entitled to notice.

This bill would provide that a petition may commence discovery upon a trustee in accordance with the same time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, except that the time periods shall commence to run upon service of the petition and notice of hearing upon the trustee or the trustee’s appearance in the proceeding, whichever occurs first.

This bill would provide provisions that state nothing in this subdivision shall either alter when a respondent in applicable proceedings may commence discovery or increase the extent to which nonparties may be subject to discovery.

COMMENT

1. Stated need for this bill

According to the Author:

Trust and estate litigation procedures are generally controlled by the Code of Civil Procedure. Some variation exists to accommodate substantive differences between trust and estate and civil litigation. However, in some instances there are divergent procedures which are not warranted and are likely unintended. As much as reasonably possible, there should be conformity between trust and estate and civil litigation procedures.

The timing upon which discovery may be commenced in civil and trust proceedings is out of sync. The purpose of this proposal is to bring greater conformity to the timing rules for commencement of discovery by adding three subdivisions to Probate Code 1000 as described above.

In addition, under Probate Code section 850, an order may be sought from the court determining rights and claims to property that is in the control or possession of the estate or another party. Although the rights and claims of interested persons are being determined in the proceeding, the notice of hearing as prescribed under current law fails to convey the significance of the action, raising a due process issue. A further purpose of this proposal is to provide enhanced notice to better identify the property at issue, advise whether additional relief is sought under Probate Code section 859, and inform the recipient that there is a right to file a response to the Petition.

1. Clarification of the applicability of the Code of Civil Procedure

Under Section 1000 of the Probate Code, the rules of practice applicable to civil actions, including discovery proceedings, apply to, and constitute the rules of practice in Probate Code proceedings. However, the Code of Civil Procedure provides for discovery to commence only after service of a summons or appearance by the defendant. (Code Civ. Proc. Secs. 2025.210(b), 2030.020(b), 2031.020(b), and 2033.020(b).) For some actions under the Probate Code, this does not present any procedural concerns, as the issuance of a summons is provided for. For example, when a will is contested, the contestant files with the court an objection to the probate of a will, then a summons is issued and served. (Prob. Code Sec. 8250.)

Concern over the applicability of discovery procedures as provided for in the Code of Civil Procedure arises because this is not the case for all probate actions. Particularly in cases involving a trust, practitioners have raised concerns because there is no statutory authority providing the authority needed to issue a summons. Due to this lack of statutory authority to issue a summons, the Trusts and Estates Section of the State Bar (TEXCOM), the sponsor of this bill, seeks to clarify the application of discovery procedures found within the Code of Civil Procedure to actions within the Probate Code that may not involve the issuance of a summons.

To remedy these concerns, this bill would add two new sections to the Probate Code and amend Section 1000 to clearly state that a petition may commence discovery upon any person who receives notice of the hearing in accordance with the same time periods set forth in the Civil Discovery Act of the Code of Civil Procedure. The time periods applicable to discovery for these actions shall commence to run upon service of the petition and notice of the hearing upon the trustee or the trustee’s appearance in the proceeding. These provisions clarify the applicability of the Civil Discovery Act to these Probate Actions, and provide for the triggering event to be the service of the petition, rather than a summons, since these actions do not currently include provisions for a summons.

1. Expansion of notice requirements for transfers of property

Existing law contains provisions for who shall be provided notice of the hearing and a copy of the petition. (Prob. Code Sec. 851.) This bill would provide that a notice of hearing shall contain all of the following:

• a description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property, for real property the notice shall state the street address or a description of its location and the assessor’s parcel number;
• if the petition seeks relief for property that was wrongfully taken, concealed or disposed of in bad faith, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested; and
• a statement advising any person interested in the property that he or she may file a response to the petition.

In regards to this expansion, TEXCOM writes:

While working on this project, TEXCOM was also alerted to concerns regarding the Notice of Hearing as it relates to Probate Code section 850 Petitions. A due process issue was raised by an attorney and echoed by litigators on TEXCOM. Counsel had a client who was served with a Probate Code section 850 Petition and a Notice of Hearing concerning property in his possession that was claimed to belong to the petitioning estate. The language of a standard Notice of Hearing fails to convey the potential seriousness of the proceeding to an interested holder of property. It states: “This notice is required by law. This notice does not require you to appear in court, but you may attend the hearing if you wish.”

Counsel’s client did not realize the significance of the hearing, did not retain counsel, and when he failed to appear, the court defaulted him and entered judgment resulting in the loss of the property. Counsel was then in the position of attempting to set aside the default.

In addition to its failure to convey urgency to the interested party, a Notice of Hearing in an 850 Petition does not clearly identify the property affected by the petition, whether or not a money judgment of double the value of the property in question is being sought, or alert the recipient of the right to file a response. Even though it may not go far enough, TEXCOM believes the proper approach is found in Local Rule 4.37 of the Los Angeles County Superior Court. That Rule mandates that the Notice of Hearing on an 850 Petition shall include a description of the property in question and advise that interested persons have a right to file a response.

The change proposed by this bill is modeled after Local Rule 4.37 of the Los Angeles County Superior Court.

Support: None Known

Opposition: None Known

HISTORY

Source: Trust and Estates Section of the State Bar of California

Related Pending Legislation: None Known

Prior Legislation: SB 669 (Poochigian, Ch. 49, Stats. 2001) reorganized various provisions in the Probate Code dealing with determination of property claims against estates of decedents, wards and conservatees, and trusts. It authorized the Superior Court sitting in probate to try questions of title affecting property and any factually related matters claimed by a fiduciary acting on behalf of an estate or other person.

Prior Vote:

Assembly Floor (Ayes 76, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

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

Date of Hearing: March 14, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 308

Author:(Maienschein) – As Amended Ver:March 9, 2017

PROPOSED CONSENT

SUBJECT: PROBATE ACTIONS: CIVIL PROCEDURE

KEY ISSUE: SHOULD CERTAIN PROCEDURAL RULES FOR PROBATE PROCEEDINGS BE CLARIFIED in order to enSure that interested individuals have proper notice of CERTAIN PROPERTY proceedings and THAT discovery IN PROBATE ACTIONS CAN COMMENCE IN A timely MANNER?

SYNOPSIS

Proceedings under the Probate Code are generally governed by the rules of civil procedure in the Code of Civil Procedure, unless the Probate Code provides otherwise. There are certain instances when procedural issues are specific to Probate Code actions and thus when specific rules in the Probate Code are needed. This bill, sponsored by the Trusts & Estates Section of the State Bar, seeks to make several Probate Code-specific procedural changes. First this bill provides for enhanced notice to interested individuals in actions to convey or transfer property belonging to a decedent or other person, including requiring the notice to contain a better description of the property and more clearly state the penalties that can be imposed by the court. This should help ensure that the recipient knows what property is subject to the court action, what negative ramifications can be taken by the court, and how an individual may challenge the action.

The bill also clarifies when a petitioner may commence discovery activities and when discovery activities can commence against nonparties. These changes are needed because the Code of Civil Procedure discovery rules do not, without this clarification, fully translate into the Probate Code. The changes in this bill do not expand whom discovery may be obtained from or allow discovery to commence any earlier. They simply help ensure that discovery rules under the Code of Civil procedure apply fully and equally to actions under the Probate Code. This bill has no reported opposition.

SUMMARY: Revises procedural rules for certain proceedings under the Probate Code. Specifically, this bill:

1. Requires that the notice of hearing to be given in a probate proceeding to convey or transfer property belonging to a decedent or other person:
   1. Contain a description of the property sufficient to give adequate notice to any party who may have an interest in the property, which for real property is either a street address or, if none, the assessor's parcel number;
   2. Provide notice if relief is sought under Probate Code Section 859, which provides for double damages and attorneys' fees if property was taken in bad faith or through undue influence or by elder financial abuse; and
   3. Contain a statement advising individuals interested in the property that they may file a response to the petition.
2. Provides that, in an action to convey or transfer property belonging to a decedent or other person under 1), above, the petitioner may commence discovery on any person who receives notice of the hearing in accordance with time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, with the time periods commencing to run upon service of the petition and notice of hearing. Provides that this does not alter when a respondent may commence discovery.
3. Provides that a petitioner in a trust proceeding may commence discovery against a trustee in accordance with time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, with the time periods commencing to run upon service of a petition and notice of hearing on the trustee or the trustee's appearance in the proceeding, whichever occurs first. Provides that this does not alter when a respondent may commence discovery.
4. Provides that, for purposes of determining when discovery may commence against nonparties in probate actions, discovery may commence on any person who receives notice of the hearing in accordance with time periods set forth in the Civil Discovery Act under the Code of Civil Procedure, with the time periods commencing to run upon service of the petition and notice of hearing upon all parties entitled to notice. Provides that this does not alter when a respondent may commence discovery, nor does it increase the extent to which nonparties may be subject to discovery.

EXISTING LAW:

1. Provides that unless provided otherwise in the Probate Code, the rules of practice applicable to general civil actions under the Code of Civil Procedure apply to actions under the Probate Code. (Probate Code Section 1000. Unless stated otherwise, all further statutory references are to that code.)
2. Creates a procedure to resolve disputes about property ownership subject to an estate, conservatorship, guardianship or trust. Requires that at least 30 days before a hearing on the matter, certain, specified individuals must receive notice of the hearing. (Section 850 et seq.)
3. Allows a trustee or beneficiary of a trust to petition a court concerning the internal affairs of the trust or to determine the existence of the trust. (Section 17200.)
4. Provides that commencement of particular discovery activities against a defendant, including a deposition, interrogatories, request for inspection of records, and request for admission, commence a certain number of days after service of a summons or appearance by the defendant, whichever occurs first. (Code of Civil Procedure Sections 2025.210, 2030.020, 2031.020, and 2033.020.)

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

COMMENTS: Proceedings under the Probate Code are generally governed by the rules of civil procedure in the Code of Civil Procedure, unless the Probate Code provides otherwise. (Section 1000.) There are certain instances when procedural issues are specific to the Probate Code actions and thus when specific rules in the Probate Code are necessary. This bill seeks to make several specific procedural changes in the Probate Code to ensure applicability of appropriate procedural rules.

This Bill Enhances Notice in Probate Actions to Transfer Property. In an action to convey or transfer property belonging to a decedent or other person, this bill requires that interested parties get greater notice about the property at issue. In these actions, a court can compel property to be transferred or conveyed as appropriate. The court also can, if it finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, make that person liable for twice the value of the property recovered. (Section 859.) In addition, that person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. (Id.) Additionally, an action under this part of the Probate Code can also include other causes of action normally raised in a civil action, to the extent they are factually related to the underlying action on the property. (Section 855.)

Before the property action can proceed, interested individual must receive notice of the action, including everyone claiming an interest in the property and the personal representative, conservator or trustee, as appropriate, and heirs or beneficiaries, again as appropriate. According to the sponsor, the current notice is not sufficient to let interested individuals know what the action is about or its importance. This has resulted, says the sponsor, in unnecessary defaults. This bill, modeled after a local rule in Los Angeles, requires that those who are already required to receive notice of the action, learn a little bit more about the property. Under the bill, the notice would have to:

• Contain a description of the property sufficient to give adequate notice to any party who may have an interest in the property, which for real property is either a street address or, if none, the assessor's parcel number.
• Provide notice if relief is sought under Probate Code Section 859, which provides for double damages and attorneys' fees if property was taken in bad faith or through undue influence or by elder financial abuse.
• Contain a statement advising individuals interested in the property that they may file a response to the petition.

This should help ensure that the recipient knows what property is subject to the action, what negative actions can be taken in the action and how the individual may challenge the action.

This Bill Clarifies the Time Periods for Commencement of Discovery Under the Probate Code. This bill also clarifies the time period when discovery can commence in certain Probate actions. Under the Code of Civil Procedure, a defendant generally may engage in discovery after he or she has been served or appeared in the action, whichever occurs first. Those same timeframes work for actions under the Probate Code. The Code of Civil Procedure time frames for commencing discovery, however, do not always work when it is the plaintiff who seeks to engage in discovery. Under the Code of Civil Procedure, a plaintiff may not commence discovery against a defendant until a certain number of days after service of a summons or appearance by the defendant, whichever occurs first. However in many probate actions, there is no service of a summons, so discovery cannot begin timely. This bill seeks to correct that problem by providing that the discovery time period begins to run for the plaintiff upon service of the petition and notice of hearing in trust proceedings and actions regarding property.

In addition, the bill clarifies that for purposes of determining when discovery may commence against a nonparty in probate actions, discovery may commence on any person who receives notice of the hearing in accordance with time periods set forth under the Code of Civil Procedure, with the time periods commencing to run upon service of the petition and notice of hearing upon all parties who are entitled to notice. This ensures that everyone has been served before the discovery clock starts running on anyone. The bill rightly states that this clarification does not in any way alter the extent to which nonparties may be subject to discovery. It simply provides a timeframe for when to commence discovery if it is otherwise permissible.

ARGUMENTS IN SUPPORT: In support of the bill, the Trusts & Estates Section of the State Bar writes:

Trust and estate litigation procedures are generally controlled by the Code of Civil Procedure. Some variation exists to accommodate substantive differences between trust and estate and civil litigation. However, in some instances there are divergent procedures which are not warranted and are likely unintended. As much as reasonably possible, there should be conformity between trust and estate and civil litigation procedures. The timing upon which discovery may be commenced in civil and trust proceedings is out of sync. This bill would bring greater conformity to the timing rules for commencement of discovery.

In addition, under Probate Code section 850 an order may be sought from the court determining rights and claims to property that is in the control or possession of the estate or another party. Although the rights and claims of interested persons are being determined in the proceeding, the notice of hearing as prescribed under current law fails to convey the significance of the action, raising a due process issue. This bill would provide enhanced notice to better identify the property at issue, advise whether additional relief is sought under Probate Code section 859, and inform the recipient that there is a right to file a response to the Petition.

REGISTERED SUPPORT / OPPOSITION:

Support

Trusts & Estates Section of the State Bar (sponsor)

Opposition

None on file

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