Marrying a Dependent Adult: AB 328

This bill seeks to protect dependent adults (mostly elders who need in-home care) from undue influence or fraud perpetrated by a care custodian. While most care custodians are hardworking and compassionate, a few had taken advantage of a legal loophole that allowed them to marry an elder and then obtain testamentary gifts.

AB 328, by adding subsection (d) to Probate Code section 21380, subjects to the presumption of fraud or undue influence a gift made to a care custodian who commenced a marriage, cohabitation, or domestic partnership with a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the transfer occurred less than 6 months after the marriage, cohabitation, or domestic partnership commenced.

The law also amends section 21611 so that the presumption of undue influence applies to any care custodian who attempts to take advantage of the omitted spouse statute. 

Definition of Instrument: SB 308

Until December 31, 2019, Probate Code section 45 defines instrument to mean “a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer of property.” (emphasis added) At first glance, this definition appears to include a trust agreement, declaration, restatement, or amendment. However, a trust is a “fiduciary relationship with respect to property in which the person holding legal title to the property—the trustee—has an equitable obligation to manage the property for the benefit of another—the beneficiary. (Moeller v. Superior Court (1997) 16 Cal.4th 1124).

A trust is a legal relationship, not the document itself, and it need not be in writing. SB 308 deletes “trust” and puts “a document establishing or modifying a trust” in its place. This small change clarifies that the instrument is the document establishing or modifying the trust—not the trust itself—and harmonizes case and statutory law.

Firearm Transfers at Death : AB 1292

Certain firearm transfer by operation of law provisions and the exceptions previously applied only to an executor or administrator of an estate. For example, while firearms transfers must generally include dealers, in certain circumstances executors or administrators were exempt from that requirement. AB 1292 amends the law so that these same provisions or exceptions now apply to a decedent’s personal representative, a person acting pursuant to the person’s power of attorney, a trustee, a conservator, a guardian or guardian ad litem, or a special administrator.

Additionally, AB 1292 exempts someone from liability if that person finds a firearm and transports it to a law enforcement agency.

Abandoning an Elder: SB 314

SB 314 amends Welfare and Institutions Code, section 15657, to protect elders from abandonment. This amendment became necessary because certain care facilities had abandoned their elderly patients during the fires that ravaged much of Northern and Southern California in recent years. The Elder Abuse and Dependent Adult Civil Protection Act provides for the award of attorney’s fees and costs to, and the recovery of damages by, a plaintiff when it is proven by clear and convincing evidence that the defendant is liable for physical abuse or neglect and the defendant has also been found guilty of recklessness, oppression, fraud, or malice in the commission of that abuse. SB 314 adds “abandonment” to physical abuse or neglect, thus subjecting those who abandon elders to the enhanced remedies in the Elder Abuse and Dependent Adult Civil Protection Act. 

At Death Transfers Between Spouses: AB 327

AB 327 solves an estate planning issue created by the decision in Lintz v. Lintz. In that case, a bad actor made for bad law. Decedent, a wealthy real estate developer, disinherited his children and grandchildren over several years by executing a series of trust amendments and one new trust. (222 Cal.App.4th 1346). His wife, the primary beneficiary of the amendments and new trust, had, in the language of Family Code section 721, “secure[d] an advantage from the transaction[s].” Thus, wrote the court, “a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside.” The court’s application of Family Code 721’s presumption to a testamentary transfer made many estate planners nervous. In effect, the court appeared to be endorsing the idea that inter-spousal testamentary transfers should be presumptively invalid.

The California legislature has solved the problem with a simple legislative fix. AB 327 adds one probate code section and slightly amends Family Code section 721. Section 721 now lists 21385 as a section excluded from 721’s requirements, and Probate Code section, 21385, says in its entirety:

(a) An at-death transfer, as defined in Section 21104, between spouses by will, revocable trust, beneficiary form, or other instrument is not subject to Section 721 of the Family Code or any presumptions of undue influence created by that section.

(b) This section does not limit the application of any other statutory or common law presumptions of undue influence that may apply to an at-death transfer between spouses.

Disposing of an Estate Without Probate Administration: AB 473

AB 473 increases the amount for a small estate to qualify for disposition without a full probate administration to $166,250 (from $150,000) and also increases the amount for a surviving spouse to collect unpaid compensation from the decedent-spouse's employer to $16,625. The bill also requires the Judicial Council to adjust these dollar amounts based on a particular consumer price index published by the U.S. Bureau of Labor Statistics.