Attorney Jim Birnberg gave us his annual updates on California Legislation affecting Probate, Estates, Trusts, Guardianships, and Conservatorships for 2014.
Here are my notes from Mr. Birnberg’s presentations back on December 16, 2013, to the Long Beach Bar Association’s Estate Planning, Probate, and Trust section:
I. A) SB 211 - The California Franchise Tax Board (“FTB”), Assessor’s Office, and IRS are in contact with each other. For many years, IRS has said they have access to these records. They now do. So those deeds from parents to children really are gifts to report on Gift Tax Returns (709).
B) AB 672 - Certain estates will no longer require tax clearance certificates from FTB.
II. A) AB 140 - New definition of “undue influence” and factors to consider. This is to “supplement” the common law definition. Includes excessive persuasion which leads to … resulting in inequity. Adds to things to be considered. Puts the definition in the Probate code as well as Welfare and Institutions code.
B) AB 381 extends financial elder abuse to attorney-in-fact for elder, dependent adults and victims of attorney-in-fact’s bad faith undue influence.
C) AB 477 includes notaries in mandated reporting of elder abuse except notaries at financial institutions; or if the information is protected by attorney-client privilege; or if the notary is subject to the reporting requirements under Business and Professions code 6068(e) (1).
III. AB 1275 extends the definition of an owner to file claims for unclaimed property.
IV. A) AB 490 - Intestate Succession- not a parent if parenthood terminated, etc . . . .
B) AB 1160 tightens-up Personal Representative’s authority in litigation. If you intend to participate in litigation as a Personal Representative and not as a stakeholder, get court authority before you participate. You must show good cause.
V. A) AB 937 - Unless specifically ordered by the court or necessary to protect the conservatee from abuse, the authority of a conservator does not extend to the personal rights of the conservatee including, among other things, the right to receive visitors, telephone calls, and personal mail.
B) AB 1339 - Applies to Professional Fiduciaries
VI. AB 824 - To reduce litigation, AB 824 includes trust instruments in the definition of the term “agreement,” which are a final expression of the parties’ agreement, which may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. Prior law included deeds and wills as well as contracts between the parties.
VII. AB 1352- Bill to allow courts to destroy files when no action has taken place for 10 years. Some records will still be retained indefinitely.
VIII. A) SB 274 allows for more than two parents. We used to know who the mother is. Now, with in vitro, maybe not. But now for intestate succession it got more complicated.
B) AB 1403 redefines “natural parent as a non-adoptive parent, whether biologically related to the child or not. Some provisions now to be gender neutral.
IX. SB 138 incorporates HIPAA standards into state law.
X. AB 1339 requires that a petition to appoint a professional fiduciary as a conservator, guardian, or temporary conservator or guardian include fiduciary’s proposed hourly fee schedule or other statement of proposed compensation from the estate.
Also, do so concurrently with filing of the inventory and appraisal. It permits the court to authorize periodic payments on account without precluding the court form later reducing the fee or compensation.
XI. AB 1293 creates a $40 filing fee for requests for special notice in addition to fees for any other filings.
XII. SB 281 affects life insurance; accelerated benefits and lapse.
XIII. AB 261 prohibits residential care facilities for the elderly from requiring advance notice for termination an admission agreement upon the death of a resident. Prohibits accrual of fees once personal property is removed. Prohibits inhibition of removal of personal property.
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John T. Anderson, Section Chair
LBBA Estate Planning, Probate, & Trust Section
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal Specialization
Copyright © 2014 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
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