San Diego Estate Planning Lawyer Blog
There are a number of legislative proposals affecting probate and trust law suggested by the California State Bar for possible introduction in the California legislature next year.
One proposal is to broaden who has the right to control the disposition of remains. This proposal would add the conservator of the person and the conservator of the estate to the list of persons who may control the disposition of a decedent’s remains. This proposal would amend section 7100 of the Health and Safety Code.
Another proposal is to repeal the Rule Against Perpetuities and clarify the rule against restraints on the power of a trustee to sell or transfer trust property. The Rule Against Perpetuities came from common law rule against vesting interests in property which do not vest within a life in being at the creation of the interest plus 21 years. The Rule prevents a person from putting provisions in their will or trust that will continue to control or affect the distriibution of assets long after he or she has died. Some states have already abolished the Rule Against Perpetuities.
An addition to the Probate Code permitting Elective Administration of a decedent’s estate rather than the formal probate administration, which currently is the only choice is another important proposal. Elective administration would allow a personal representative to administer a probate estate with a minimum of court supervision. Elective administration would be available in five circumstances:
1. Estates in which the Petitioner is an individual and is the sole devisee of the decedent’s will entitled to distribution.
2. Estates in which the Petitioner is a trustee and is the sole residuary devisee of the decedent’s will entitled to distribution.
3. Estates in which the Petitioner is the sole residuary devisee of the decedent’s will and the decedent’s will is a pour over will.
4. Intestate estates in which the Petitioner is the decedent’s sole heir.
5. Estates in which all devisees of the decedent’s will entitled to distribution are adult who have consent in writing to the elective administration.
This proposal for Elective Administration would permit eligible beneficiaries to choose between elective administration and formal probate. The elective administration would be faster and less costly than formal probate. For more specific details on this proposed addition to the Probate Code, look for a future blog.
If you need help with probate or any other aspect of California estate planning, call us at Scott C. Soady, A Professional Corporation.