APPLICABILITY OF RULES TO ALL PROCEEDINGS.PART ONE. GENERAL PROCEDURAL GUIDE
11.101.APPLICABILITY OF RULES TO ALL PROCEEDINGS.
All rules as hereinafter set forth shall apply to estate proceedings, guardianships, conservatorships or trusts, except as otherwise specifically noted and to the extent not superseded by laws enacted after June 1, 1993.
11.102.ADDRESSES AND TELEPHONE NUMBERS.
SAN LUIS OBISPO COUNTY SUPERIOR COURT
County Government Center
San Luis Obispo, CA 93408
OfficeAddressTelephone
County ClerkCounty Government Center,(805) 781-5243
Room 385
San Luis Obispo, CA, 93408
Court Investigator1070 Palm Street(805) 781-5424
Preapproved Matters (Recording)(805) 781-5178
11.103.PROBATE CALENDAR AND APPEARANCES BY COUNSEL.
(a)The Probate Calendar is heard at 9:00 a.m. on Monday of each week, unless Monday is a court holiday, in which event the Probate calendar will be heard the next court day.
(b)Appearance by counsel will be required in the following matters:
(1)A contested matter;
(2)A hearing on a petition for confirmation of sale of property;
(3)An appointment of guardian or conservator;
(4)A compromise of a minor's claim; and
(5)When otherwise required by law or the Court.
11.104.TIME FOR FILING, SETTINGS, AND FILING FEES.
(a)All necessary papers, including affidavits and proposed orders, shall be filed with the County Clerk not less than three (3) full intervening court days before the date of hearing. Exceptions to this rule may be made at the discretion of the Judge on showing of good cause.
(b)Petitioner and/or counsel should call the Clerk for settings and to confirm hearing dates. See Rule 11.102 for telephone number.
(c)All filings must be accompanied by the appropriate filing fee. Fee and exemptions are set forth in Government Code Sec. 26820 et seq. The words "Probate Code Sec. 10400" shall be inserted in title of each subsequent paper to qualify for fee waiver under Independent Administration of Estates Act. Government Code Sec. 26827.4.
11.105.FORM OF PAPERS PRESENTED FOR FILING.
(a)Papers presented for filing with the Clerk shall conform to California Rules of Court Sec. 201.
(b)Printed forms which have been approved by the Judicial Council shall be used where applicable. If the forms cannot be used without substantial alteration, counsel are requested to prepare their own documents using the printed forms as a guide.
(c)All filings shall be made in duplicate if petitioner/counsel require a conformed copy.
(d)Unless petitioner/counsel provides the Clerk with a stamped, self-addressed envelope, copies of filed documents will be placed in a will call-pick up folder at the Clerk's office.
11.106.HEARING DATE REQUIRED ON DOCUMENTS.
The date of the hearing shall be placed immediately below the case number on the first page of every document filed which relates to a matter set for hearing. Documents which do not conform with this rule may be rejected for filing.
11.107.SIGNING AND VERIFICATION OF PLEADINGS.
Pleadings, reports and accounts shall be signed by the attorney and each representative, trustee, guardian or conservator. Such filings shall be verified by a representative, trustee, guardian or conservator personally and not by the attorney.
11.108.AMENDMENTS TO AND AMENDED PLEADINGS.
(a)AMENDED PLEADING.
An amended pleading is a pleading which supersedes the original thereof and speaks only of things which occurred either before or concurrently with the commencement of the action; it may be allowed "of course" or upon motion. An amended pleading must be calendared, posted and noticed in the same manner as the pleading it supersedes.
(b)AMENDMENT TO PLEADING.
An amendment to a pleading is the correction of an error committed. Its purpose is to correct, improve or rectify something deficient or defective in the original pleading, not to substitute a new for an old. Copies must be served by counsel on all parties who were served with the basic pleading if there is a substantive change. The amendment will not be calendared separately but will be heard on the date and time set for hearing the basic pleading. An amendment to a pleading shall designate the pages and lines of the pleading being amended. An amendment shall not be made by alterations on the face of a pleading except with permission of the Court.
(c)SUPPLEMENTAL PLEADING.
A supplemental pleading is one alleging facts material to the action occurring since the commencement of the action. Leave of Court must be obtained prior to the filing of a supplemental pleading. A supplemental pleading must be calendared, posted and noticed in the same manner as an original pleading. A "Supplement to a Pleading" does not exist and will not be accepted.
11.109.PREAPPROVED MATTERS.
(a)A matter that by law may be determined upon verification and without testimony may ordinarily be submitted for appropriate action by the Court without appearance by counsel or witnesses provided. The judge assigned to the probate calendar will review all documents prior to hearing and may tentatively approve all matters which are in proper form and to which no objections have been made. Such matters shall be assigned to the preapproved matter list.
(b)The probate clerk is authorized to release the name and number of matters preapproved by the Court. See Rule 11.102 for telephone number of recorded message for preapproved matters.
11.110.CONTINUANCES.
The continuance policy of this Court in probate matters is liberal, but unexplained or unnecessary successive continuances shall cause the matter to be taken off calendar and require the same to be renoticed. In uncontested matters, counsel may request a continuance by telephone to the Probate Clerk.
11.111.CONTESTED MATTERS.
(a)ORAL OBJECTIONS.
If an oral objection is made by appearance at the hearing at the time a matter is called, the Court may continue the hearing for a reasonable time to allow the filing of written objections. If the written objections are not filed within the prescribed time, the matter will proceed.
(b)TRIAL OF CONTESTED OR LENGTHY MATTERS.
The Court may transfer all contested matters or matters with time estimates of more than 30 minutes for hearing to the Department of the Presiding judge who will then assign those matters for hearing in the same manner as civil trials are assigned.
PART TWO. NOTICES
11.201.PREPARATION OF NOTICES.
All notices required by the Probate Code to be given by the Clerk shall be prepared by the attorney.
11.202.ADDITIONAL NOTICE.
Under the provisions of Probate Code Sec. 1202, the Court may require additional or further notice on any matter. Such notice will be required whenever it appears that the interest of any person may be adversely affected by the determination of the issues raised by the pleadings.
11.203.NOTICE: BY WHOM GIVEN.
The Clerk shall be responsible for publication of notice where required. The petitioner or the petitioner's attorney shall prepare all notices required to be published and shall provide the same in duplicate to the Clerk. Where notice by mail is required to be given, petitioner or petitioner's attorney shall give the notice and file a proper proof of service.
11.204.NOTICE BY PUBLICATION OF NOTICE OF PETITION TO ADMINISTER ESTATE.
The published notice of Petition to Administer Estate is sufficient to include only those instruments which are offered for probate and specifically referred to in the petition for which the notice is given. Any other will or codicils not specifically mentioned in the petition must be presented to the Court in an amended petition or second petition, and a notice of hearing shall be published. See Appendix A for newspapers of general circulation in San Luis Obispo County.
11.205.NOTICE BY POSTING.
The moving party shall prepare and submit to the Clerk as many copies of the notice as the Clerk is required to post.
PART THREE. APPOINTMENT OF EXECUTORS AND ADMINISTRATOR
11.301.DECLINATION TO SERVE.
If the person named in the decedent's will as executor declines to act as such, his written and signed declination to act must be filed with the Court unless evidence is produced that he is incompetent or refuses to act.
11.302.MULTIPLE REPRESENTATIVES.
If a petition is filed requesting letters be issued to two or more executors or administrators in which one or more of the named persons for whom letters are sought is not a petitioner, a consent to act, signed by each non-petitioning person for whom letters is sought, shall be filed with the Court.
11.303.INDIVIDUALS TO BE NAMED IN THE PETITION.
In the petition for letters, each of the following shall be listed and named:
(a)Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner, (including those who might be heirs by virtue of Probate Code Sec. 6147 and Sec. 6402.5), setting forth their names, ages, addresses and relationships to the decedent.
(b)Each devisee and executor named in any will being offered for probate even if the gift to such person or the appointment of such executor has apparently been revoked.
(c)Trust beneficiaries, the trustee of a trust or guardian nominated in a will, and any other known trustee or guardian.
(d)If the decedent left no spouse or issue, the heirs of a predeceased spouse who would inherit as provided by Probate Code Sec. 6402.5.
11.304.COPY OF WILL TO BE ATTACHED TO PETITION FOR PROBATE.
(a)A petition for letters must have a photocopy of the will attached at the time of filing the petition. If the photographic copy of the will bears the Clerk's received stamp, it will be presumed to be a true copy without further proof thereof; otherwise, the Clerk's certification must be attached.
(b)If the will is holographic, in addition to a photocopy, a typewritten copy of the will must also be attached to the petition.
11.305.COPY OF WILL.
(a)Unless there is a contest of a will, proof of a will shall conform to the requirements of Probate Code Sec. 8220 et seq.
(b)In uncontested will proceedings, if the attestation clause is signed under penalty of perjury and meets the requirements of Probate Code Sec. 6110 et seq., the will is self proving and may be admitted to probate without an affidavit or declaration. Otherwise, if the will or codicil is witnessed, the moving party shall file a Proof of Subscribing Witness with a copy of the will or codicil attached.
(c)If the testimony of a subscribing witness to a will or any other witness impeaches the due execution of the will, a continuance will be ordered; and the other subscribing witness or witnesses to the will who can with due diligence be found shall be subpoenaed by the proponent to appear before the Court at the continuance date and testify respecting the execution of the will.
(d)The Court prefers that both formal witnessed wills and holographic wills be proven by declaration rather than by testimony.
11.306.BOND.
(a)Bond shall be required in all cases, except as otherwise provided by statute. Probate Code Sec. 8480.
(b)If a verified petition for letters alleges that all beneficiaries or heirs have waived the filing of a bond, the will does not require a bond, and the petitioner requests appointment without bond, such waiver shall be in writing and timely filed prior to the hearing.
(c)An executor nominated to serve without bond who is a nonresident of California may nevertheless be required to post such bond as the Court may require. Probate Code Sec. 8571.
(d)Each petition for letters shall contain in the right side of the caption the words "Bond Waived" or "Suggested Corporate Surety Bond $ __________." An amount shall be inserted for the suggested bond amounts that complies with Probate Code Sec. 8482.
(e)Upon the filing of the Inventory and Appraisement, the personal representative or the attorney for the estate shall declare on the face thereof whether bond is required and whether the amount posted is adequate. If the bond is insufficient, the personal representative shall immediately obtain and file an additional bond, thereby increasing the bond to the amount required by Sec. 8482.
(f)When a reduction of bond proceeding is initiated, counsel shall obtain and deposit with the Clerk a receipt confirming the deposit of securities and/or money subject to removal from the depository only upon order of the Court. Such receipt shall be deposited with the Clerk before the reduced bond is filed.
11.307.FORM REQUIRED FOR APPOINTMENT OF PERSONAL REPRESENTATIVE.
The Judicial Council has adopted a form entitled "DUTIES AND LIABILITIES OF PERSONAL REPRESENTATIVE." Before letters are issued, a copy of that form, signed by the personal representative stating that he or she had received and read the same shall be filed with the Court by the personal representative, other than a trust company or a public administrator. This form shall contain the Social Security number and driver's license number, if any, of the personal representative. Probate Code Sec. 8404.
11.308.PETITION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR.
(a)A petition for appointment of a special administrator may be granted by the Court upon application made pursuant to the provisions of Probate Code Sec. 8540 et seq. In an emergency, letters of special administration may be granted, ex parte, upon giving 4 hours advance notice of the application to all interested parties and to the Court's secretary for an appointment with the probate judge.
(b)The party seeking special letters of administration shall give notice of the application to the surviving spouse, the person(s) nominated as executor(s), other persons who seek or might be expected to seek letters, and any other person who appears to be equitably entitled to notice, unless on good cause shown the Court orders otherwise. The petitioner also shall file a petition for permanent letters before special letters of administration shall be issued, or there appears in the petition a showing of good cause why a petition for permanent letters has not been filed.
(c)In making the appointment, preference is given to the person entitled to letters testamentary or of administration, but if it appears that a bona fide contest exists, the Court will consider the advisability of appointing the public administrator or a neutral person or corporation as special administrator.
11.309.ANCILLARY PROBATE.
If a nondomiciliary decedent's will has been admitted to probate in a sister state or foreign nation, the will may be probated in an ancillary administration proceeding brought under Probate Code Sec. 12510 et seq.
PART FOUR. OTHER MOTIONS AND PETITIONS
11.401.PETITION FOR EX PARTE ORDER.
(a)If because of the apparent emergency nature of an application, the Court elects to consider the matter ex parte, but the need for an opportunity to be heard is apparent, the Court will normally require moving counsel to give at least 4 hours informal notice of the nature of the application to counsel located in San Luis Obispo County who represent other interested parties, 24 hours notice to counsel located outside San Luis Obispo County, or in the absence thereof to the other interested parties themselves, together with the proposed time and place of the hearing. Before the hearing is held, moving counsel shall submit a declaration to the Court setting forth facts relating to the efforts to give such notice, if any, or facts supporting the conclusion that it was impossible to give such notice.
(b)An ex parte order will not be granted unless accompanied by a petition (or affidavit where applicable) containing facts to justify granting the prayer.
(c)All petitions for ex parte orders shall contain an allegation that no Special Notice has been filed. If any such notice has been filed, an ex parte order will not be considered unless accompanied by a properly executed waiver of notice.
(d)Petitions for an ex parte order for sale of stock or personal property must allege whether the property is specifically bequeathed. If bequeathed, the consent of the specific legatee to the sale must accompany the petition.
11.402.PETITION FOR INSTRUCTIONS.
(a)The use of petitions for instructions by executors or administrators, pursuant to Probate Code Sec. 9611, is limited to those matters where no other or different procedure is provided and shall not be used in lieu of a petition for distribution entitlement.
(b)The Petition for Instructions should set forth the matter on which the personal representative desires instructions in precise detail. The petition shall be accompanied by a proposed order which set forth the instructions in clear and explicit language.
11.403.FAMILY ALLOWANCE.
(a)Requests for a family allowance should be made in a timely fashion and conform with the requirements of Probate Code Sec. 6540 et seq. Ex parte petitions for a family allowance for the benefit of the surviving spouse and/or minor children will be accepted if presented before the filing of the Inventory. Ex parte petitions from a person other than the personal representative will not be accepted without the written consent of the personal representative.
(b)Petitions for Family Allowance made more than six (6) months after the administrator or executor has qualified must be noticed and placed on the regular probate calendar. Petitions for Family Allowance for the benefit of persons other than the surviving spouse and/or minor children will be heard on the regular probate calendar after notice has been given pursuant to Probate Code Sec. 6541(c).
(c)The duration of an order for family allowance shall not exceed six (6) months. For good cause shown in writing, such orders may be renewed. The order shall state the commencement date and the specified period of payments.
(d)The application for an allowance shall include at least the following data:
(1)The applicant's expenses and income from sources outside the estate;
(2)An itemized list of the applicant's assets, and a statement of the appropriate value of each;
(3)A general statement of the assets and of the liabilities of the estate;
(4)A general statement of other applications (if any) on file for allowances; and
(5)If the petitioner is someone other than the personal representative, the petition shall be accompanied by either a consent to the allowance or a waive of notice signed by the personal representative.
11.404.PETITION FOR DISTRIBUTION ENTITLEMENT.
Petition to determine entitlement to distribution of any part of an estate shall be made in conformance with the requirements of Probate Code Sec. 11700 et seq. Notice shall be given in the manner prescribed in Probate Code Sec. 11701.
PART FIVE. ORDERS
11.501.PREPARATION OF ORDERS.
An order not presented for signature at time of the hearing should be presented within five (5) days thereafter and shall include in the caption and in the first paragraph a recitation of the date of the hearing.
11.502.WORDING.
Orders shall be worded so that their general effect may be determined without reference to the petition on which they are based. All orders must be complete in themselves. All matters actually passed on by the Court, including the relief granted, the names of persons and description of property (and if real property is involved, the legal description and common address thereof), amount of money affected, the terms of trusts, and the provisions of other agreements, shall be set forth with the same particularity required of judgments in civil matters.
11.503.CONTINUING PAYMENTS—TIME LIMIT.
The Court does not favor orders for continuing payments to run until the further order of the Court. All such orders shall provide that payments commence as of a particular date and continue to a date certain.
11.504.ORDERS CORRECTING CLERICAL ERRORS.
If, through inadvertence, the minute order or the signed decree fails to state the order actually made by the Court, the Court will on motion, which normally must be supported by an affidavit or declaration, make an order correcting the mistake. The nunc pro tunc order should not take the form of a complete amended order but should be substantially in the following form:
"Upon consideration of the affidavit or declaration of _____________________, to correct a clerical error, the _________________________ (title of the order to be corrected, giving the date thereof) is corrected on the Court's own motion by striking the following: "______________________" and inserting in lieu thereof: "_________________."
The original order shall not be physically changed by the Clerk, but shall be used in connection with the nunc pro tunc order correcting it. To prevent further errors, not less than a complete clause or sentence should be stricken, even if it is intended to correct one word or figure.
11.505.ORDER PRESCRIBING OR DISPENSING WITH NOTICE.
An order prescribing or dispensing with notice should be submitted to the Court before the petition is filed. The proposed order should be accompanied by a declaration and points and authorities in support of the order.
PART SIX. INVENTORY AND APPRAISEMENT
11.601.INVENTORY AND APPRAISEMENT—PERIOD TO FILE.
Probate Code Sec. 8800 requires the Inventory and Appraisement to be filed within four (4) months after appointment of the personal representative or within such further time as the Court may allow after a showing of good cause. If the personal representative neglects or refuses to file the inventory within the time prescribed, the Court, on petition, may revoke the personal representative's letters and/or impose personal liability on the personal representative. Probate Code Sec. 8804.
11.602.STATEMENT REGARDING BOND ON INVENTORY AND APPRAISEMENT.
The personal representative or the attorney for the estate shall declare on the face of the Inventory and Appraisement whether bond is required and whether the amount posted is adequate. If the bond is insufficient, the personal representative shall immediately file an additional bond, thereby increasing the bond to the amount required by Sec. 8482.
11.603.GUIDE FOR PREPARATION OF INVENTORY AND APPRAISEMENT.
The inventory and appraisal shall conform to the requirements of Probate Code Sec. 8850 and Sec. 8900. Each inventory item shall be clearly and concisely described in the manner described in the current version of the Probate Referees' Procedures Guide published by the California Probate Referees' Association. In the case of real property, the full legal description and common address shall be included.
PART SEVEN. CREDITORS' CLAIMS
11.701.NOTICE TO CREDITORS.
If, within four (4) months after the date letters are first issued to a general personal representative, the personal representative has knowledge of a creditor of the decedent, the personal representative shall give notice of administration of the estate to the creditor. Probate Code Sec. 9050. The notice shall be provided on the form approved by the Judicial Council and shall be filed with the Court.
11.702.FORM OF CLAIM.
Claims shall be submitted on the form approved by the Judicial Council. The Clerk shall notify the personal representative of any claim filed directly with the Court.
11.703.REQUIRED ACTION.
All filed claims shall be acted on by the personal representative of the estate and it is the duty of the attorney for the estate to see that all claims filed are ultimately approved or rejected, in proper form, duly verified, and contain sufficient detail to enable the Court to act on them without calling for additional information.
11.704.LISTING OF CREDITORS' CLAIMS.
In a report accompanying an account or in a report where an accounting is waived, it is not sufficient to allege merely that all claims have been paid. The claims presented must be listed and show: the name of each claimant, the amount claimed, the date presented, the date allowed, the date paid if the claim has been paid and the amount paid. If any claim has been rejected, the date of service of notice of rejection of claim, if such notice was given, shall be stated; and any known suit on the rejected claim shall be identified.
PART EIGHT. SALES
11.801.SALE OR ENCUMBRANCE OF SPECIFICALLY DEVISED OR BEQUEATHED PROPERTY.
No specifically devised or bequeathed real property shall be encumbered or offered for sale unless first approved by the Court after not less than ten (10) days' notice to the specific devisee, or unless the consent of the devisee is on file.
11.802.APPRAISAL OF REAL PROPERTY WITHIN ONE YEAR.
Real property shall have been appraised within one year of the time of sale. Since the first appraisement reflects the value at the time of death of the decedent, if the date of death is more than one year prior to the date of sale, a reappraisal for sale is required.
11.803.PUBLISHED NOTICE OF INTENTION TO SELL REAL PROPERTY.
Unless excused by the provisions of Probate Code Sec. 10300, a publication of notice of intention to sell real property of the estate is required.
11.804.DESCRIPTION OF PROPERTY.
All legal notices for the sale of real property and the petition for confirmation of sale shall contain, in addition to the legal description, the common street address of the property. If there is no common street address, some indication of the location of the property shall be included.
11.805.EXCLUSIVE RIGHT TO SELL REAL PROPERTY.
The personal representative may apply for Court authority to grant a real estate broker an exclusive right to sell the estate's real property for a limited period of time. Probate Code Sec. 10150. The Court may grant the petition in extraordinary cases upon proof of sufficient necessity or advantage to the estate. A copy of the proposed agreement with the broker shall be attached to the petition. No such agreement shall provide for the payment of a commission to the broker holding the listing in the event of sale to a buyer produced by the personal representative, although commissions will be allowed pursuant to the Probate Code in the event of increased bids in open court.
11.806.CONFIRMATION OF SALE.
Petitions to Confirm Sales of Real Property shall be on the Judicial Council approved forms.
11.807.PRESENCE OF PURCHASER NAMED IN RETURN AT CONFIRMATION.
(a)A sale to the increased bidder in Court could be set aside by the original purchaser who was justified in believing he did not have to appear in Court to protect his purchase. Counsel should inform the original purchaser of the time and place of hearing and advise him or his agent to be in Court on the day of sale.
(b)The original purchaser, or his/her agent if the original purchaser's address is not known, shall be given notice of the Petition to Confirm Sale of Real Property and proof of service of same shall be filed with the Court prior to the date of confirmation of sale.
11.808.DEPOSIT TO ACCOMPANY OVERBID AND OVERBID FORMS.
(a)No bid for the purchase of real property will be acceptable unless the personal representative or the attorney for the estate informs the Court that the bid is acceptable.
(b)When an overbid is made in Court, the overbidden must submit to the Court at the hearing, at the time the overbid is made, a certified or cashier's check, in an amount equal to 10 percent of the first allowable minimum overbid, or such lesser amount as the personal representative shall approve.
(c)When there is a successful overbid in open court on a sale of real property, counsel must complete and the successful bidder must sign an overbid form provided by the Courtroom Clerk and file the same. The Order Confirming Sale of Real Property will not be signed unless the form is filed.
11.809.CONDITIONAL SALES OF REAL PROPERTY.
The Court will ordinarily not approve a sale of real property which is conditioned upon the occurrence of a subsequent event (such as change in zoning). However, if unusual and extraordinary circumstances exist and the necessity and advantage to the estate are set forth in detail, the Court may approve such a sale.
11.810.SALES OF REAL PROPERTY WHEN BUYER ASSUMES ENCUMBRANCE.
Sales of real estate will not ordinarily be confirmed where the buyer assumes or takes subject to an existing encumbrance if the estate is subject to a contingent liability. The return should set forth the facts pertinent to such assumption agreement and any contingent liability.
11.811.BOND ON SALE OF REAL PROPERTY.
Petitions for confirmation of sale of real property shall set forth the amount of bond in force at the time of sale and the amount of property in the estate which should be covered by bond. If no additional bond is required, or if bond is waived, that fact should be alleged. A secured promissory note taken as part of the consideration is personal property and an additional bond must be fixed in the amount of such note plus whatever cash is paid.
11.812.BROKER'S COMMISSION ON SALE OF REAL PROPERTY.
(a)Upon the confirmation of the sale of real property, a broker's commission in excess of 6 percent of the gross sales price will not be allowed except in unusual cases when a larger commission is justified because of exceptional circumstances.
(b)A broker bidding for his own account is not entitled to receive or share in a commission.
(c)In overbid situations, broker's commissions shall be determined in accordance with Probate Code Sec. 10160 et seq.
11.813.PERSONAL PROPERTY APPRAISAL BEFORE SALE.
Except in the case of perishable property or depreciating property, sales of personal property will not ordinarily be approved or confirmed unless the property has been appraised. When necessary, a partial inventory and appraisement may be filed for this purpose, or a letter appraisal obtained from the probate referee for the estate wherein he states that he has inspected the property and declares its value.
PART NINE. ACCOUNTS AND REPORTS
11.901.ACCOUNTS.
(a)FORM OF ACCOUNT.
All accounts filed in probate proceedings, including estates, guardianship, conservatorship and trust accounts, shall include both a financial statement as provided in Probate Code Sec. 10900(b) and a report of administration as provided in Probate Code Sec. 10900(c). Accounts shall be typewritten or machine printed on letter sized pages numbered at the bottom of each page.
(b)SUMMARY OF ACCOUNT.
Each account shall contain a summary or recapitulation showing:
(1)Property in all inventories.
(2)Receipts, excluding property listed in an inventory.
(3)Gains on sales or other disposition of assets.
(4)Other acquisitions of property.
(5)Disbursements.
(6)Losses on sales.
(7)Other dispositions of property.
(8)Property remaining on hand.
(c)SUGGESTED FORM OF SUMMARY OF ACCOUNT.
See Appendix B.
(d)ACCOUNTS OF PERSONAL REPRESENTATIVES.
All accounts of executors and administrators shall conform to the requirements set forth in Probate Code Sec. 10900 and, as nearly as possible, in the forms suggested in Chapter 19 of California Decedent Estate Practice (CEB 1986).
11.902.TRUST AND SPECIFICALLY DEVISED PROPERTY.
(a)If a part of the estate is distributable to a trustee with income accumulated during administration of the estate payable by the trustee to trust beneficiaries, receipts and disbursements during probate should be allocated between principal and income in the account.
(b)If property is specifically devised, the accounting should set forth both income received and expenses allocable to each such item of property separately so the net income or loss allocable to each specific devise can be ascertained. See Probate Code Sec. 12001 et seq.
11.903.WAIVER OF ACCOUNT.
(a)The Court will approve a distribution without an account only when all of the following conditions have been met as to each person entitled to distribution from the estate: the person has executed and filed a written waiver of account or a written acknowledgment that the person's interest has been satisfied; and the conditions set forth in Probate Code Sec. 10954 have been satisfied.
(b)Notwithstanding the waiver of account, the personal representative shall file a final report of administration at the time the final account would otherwise have been required. Said final report shall include the amount of fees and commissions paid or payable to the personal representative and to the attorney and shall set forth the basis for determining the amount. See 11.1003.
11.904.VOUCHERS.
Vouchers supporting accounts are not to be filed with the Clerk unless the Court orders them filed.
PART TEN. FEES AND COSTS
11.1001.FEES AND COMMISSIONS IN GENERAL.
(a)Fees, commissions and compensation to fiduciaries and their attorneys shall be just and reasonable in amount. The Court will make a determination of what is just and reasonable upon the basis of the information provided to the Court in a petition requesting allowance of fees or commissions. In this respect, there shall be no distinction between decedent's estates, guardianships, conservatorships or trusts which are subject to court supervision or are otherwise before the Court.
(b)Other than for statutory fees and commission in probate matters, the petition requesting allowance of fees or commissions shall include a description of the nature of the services rendered with particularity, the time expended thereon, the person who performed the service, and the amount of compensation requested for each service. The Court will consider, but not be bound by, an agreement for extraordinary fees between the attorney and the client.
11.1002.FEES AND COMMISSIONS IN ADVANCE.
(a)DECEDENT'S ESTATES.
Payment of any commissions or fees to the personal representative or the attorney in advance of a Court order is not authorized, not even payment of statutory fees or commissions. Representatives or attorneys violating this prohibition may be surcharged such reasonable sums as the Court in its discretion shall fix.
A petition for partial allowance on statutory compensation filed prior to the petition for final distribution, must comply with the requirements of Probate Code Sec. 904 and/or Sec. 911, and must contain a recital of the work actually completed. Ordinarily the last 25 percent of the statutory compensation will not be allowed prior to the approval of the final accounting; however, upon a proper showing that it would be beneficial to the estate or to the distribution (for example, reduction of income taxes in a given fiscal period), the 25 percent reserve may be reduced or dispensed with.
(b)GUARDIANSHIPS AND CONSERVATORSHIPS.
Fees of guardians and conservators and their attorneys shall be paid after the services have been performed to which they relate and require prior court approval upon a petition filed. Probate Code Sec. 2640 and Sec. 2641. (See Rule 11.1006). Periodic payment of fees or commissions may be made only upon prior to Court approval given upon a petition filed under Probate Code Sec. 2643. The periodic payments shall only be paid after the services have been performed for which the fees were requested.
(c)TRUSTS.
Fees of trustees and their attorneys shall be paid after the services have been performed to which they relate, and upon showing of good cause, periodic compensation as the Court shall fix. Probate Code Sec. 15682.
11.1003.FEES AND COMMISSIONS DECEDENT'S ESTATES.
(a)In decedent's estates, when no compensation is provided in the will, the personal representative shall be allowed statutory fees and commissions set forth in Probate Code Sec. 900 et seq.
(b)Where an accounting is waived, the statutory commission and fee is limited to the inventory value of the estate plus or minus gains or losses on sales.
(c)In a petition for distribution, whether or not accompanied by an accounting, there shall be set forth the basis upon which fees are requested and a calculation of the statutory compensation of the personal representative and the attorney. See Appendix C for suggested form of request.
(d)Statutory fees and commissions will not be allowed for services rendered with respect to assets not subject to probate such as life insurance proceeds or annuities paid to a named person, or termination life estates or joint tenancy.
11.1004.ORDINARY SERVICES COMPENSATED BY STATUTORY FEES.
The Court views those services set forth in Appendix D as ordinary services for conducting probate proceedings by the personal representative and the attorney for which no extraordinary fee will be allowed.
11.1005.EXTRAORDINARY FEES AND COMMISSIONS IN ESTATES.
(a)Extraordinary fees and commissions may be allowed to the personal representative or attorney for such matters as sales, leases borrowing, litigation (including contested probate matters), tax matters (including preparation of returns, audits and tax litigation), operating a business, heirship proceedings and the performance of any other act resulting in extraordinary benefit to the estate or requiring an extraordinary expenditure of the time or other special services as may be necessary for the personal representative or attorney to perform.
(b)It is the policy of the Court to allow compensation which would be paid by persons competent to contract for themselves and as are reasonable and customary in the community for such services. In order to assist the Court in its determination, each item that constitutes an extraordinary service shall be individually stated in the petition with a specific fee request for each such service. Following are suggested, but not exclusive, guidelines of the Court to be used in making its determination:
(1)The benefits which inured to the estate.
(2)Amount of money or value of property involved in the transaction.
(3)Whether the matter was routine or involved a unique matter of substantial legal or practical difficulty.
(4)Knowledge and experience of personal representative or attorney.
(5)Whether an expert was retained in connection with the rendering of particular services, such as a broker or certified public accountant.
(6)Duration of the probate administration.
(7)Detailed description of services.
(8)Fees for legal research.
(9)Time devoted to the matter.
(10)Amount of the statutory fee and the time required to administer all matters pertaining to the estate.
11.1006.COMPENSATION IN GUARDIANSHIPS, CONSERVATORSHIPS AND TRUSTS.
(a)The Probate Code provides for just and reasonable compensation for guardians, conservators, trustees and their attorneys. The Court will consider the same factors set forth in Rule 11.1005, pertaining to allowance of extraordinary fees and commissions, to the extent the same are relevant, in determining such compensation.
(b)When compensation is requested by a guardian or conservator, the Court will require the guardian or conservator to set forth, in detail, the type and nature of the services provided, the hours expended, and the date the services were performed.
(c)The additional powers granted to a conservator or guardian under Probate Code Sec. 2591(q) does not confer authority under the conservator or guardian to pay fees to their attorney of record without first obtaining prior court approval.
11.1007."ONE-FEE" RULE.
Unless the will provides otherwise, an attorney who receives a fiduciary's commission shall not be awarded an attorney's fee or be allowed to share in any attorneys' fees which may be paid to that attorney's law firm. In situations where the one-fee rule is applicable, an agreement which shows compliance with the rule shall be filed with the court.
11.1008.NOTICE TO PRIOR REPRESENTATIVE OR ATTORNEY.
If there has been a change of personal representative or fiduciary or a substitution of counsel, notice of hearing must be given to such prior representative, fiduciary or counsel of any petition in which fees or commissions are requested by the present personal representative, fiduciary or counsel unless:
(1)a waiver of notice executed by the prior personal representative, fiduciary or counsel is on file;
(2)an agreement on the allocation of fees and/or commissions is on file or included in the petition; or
(3)the file and the petition demonstrate that the fees and/or commissions of the prior personal representative, fiduciary, or counsel have been previously provided for and allowed by the Court.
11.1009.REIMBURSEMENT FOR COSTS ADVANCED.
If counsel or the personal representative seek reimbursement for costs, such costs must be itemized in the petition.
PART ELEVEN. DISTRIBUTION AND DISCHARGE
11.1101.PETITION OR STATUS REPORT REQUIRED—FILING TIME.
Within one year from the date of issuance of letters in estates not required to file a federal estate tax return and within 18 months from the date of issuance of letters in estates where such return is required, the executor or administrator must either petition for final distribution of the estate or file a verified report of status of administration. If a report is filed, it shall show the condition of the estate, the reasons why the estate cannot be distributed and closed, and an estimate of the time needed to close administration of the estate. Probate Code Sec. 12201.
11.1102.REQUIRED ALLEGATIONS IN PETITION FOR FINAL DISTRIBUTION.
In addition to other items required by law, a petition for final distribution shall contain the following.
(a)A full and complete description of all assets on hand, including the legal description and common address of real property. The descriptions may either be set forth in the body of the petition, or by an attached schedule incorporated by reference.
(b)An allegation as to the character of the property, whether separate or community, in all cases where its character may affect distribution.
(c)Facts specifically showing the entitlement of each recipient to the portion of the estate to be distributed to him or her.
This shall also include information concerning predeceased children and in the case of intestate succession, a list of heirs to permit the Court to determine if the laws of intestate succession have been properly applied. A general allegation that the estate is to be distributed in accordance with the terms of the will is not sufficient.
(d)The name of each distributee. State whether the distributee is an adult or minor. If the distributee is a minor, the age and date of birth shall also be listed and a guardian, trustee, custodian or parent identified.
(e)A computation of attorney's fees and representative's commissions requested, or a statement of the waiver of such compensation. See Appendix C.
(f)A schedule of claims showing the name of the claimant, the amount claimed, the date presented, the date allowed, the date paid if the claim has been paid and the amount paid. If any claim has been rejected, the date of service of notice of rejection of claim, if such notice was given, shall be stated; and any known suit on the rejected claim shall be identified.
(g)An itemization of costs unless itemized in the final accounting.
(h)A statement that the federal estate tax has been paid, or that the estate is too small to require payment of tax, or that installment payments have been provided for under IRS 6166. When proration of the federal estate tax is applicable, the accompanying account should include a schedule indicating the method by which the proration has been computed.
(i)A statement that decedent had not received health care under the provisions of Chapter 7 (commencing with Sec. 14000) or Chapter 8 (commencing with Sec. 14200), Part 3, Division 9, Welfare and Institutions Code; or a statement that (1) decedent had received such health care, (2) notice of decedent's death was given to the Director of Health Services in the manner and within the time required by Probate Code Sec. 9202, and (3) more than 4 months have elapsed since said notice was given, and that either no claim was filed by the Director during that period, or that the claim which the Director full and a dismissal of claim is on file.
(j)If interest or income accruing during administration is distributable pursuant to Probate Code Sec. 12000 et seq., a statement of the amount due and the method of calculation.
11.1103.DISTRIBUTION TO MINORS.
(a)The court may permit distribution of personal property to a parent of a minor if the total estate of the minor, including the money and other property to be paid or delivered to the parent, does not exceed $5,000 in value. See Section 3400. The written assurance required by Section 3401 shall be filed prior to the signing of the Order. The Order shall indicate that the distribution is made pursuant to Section 3401.
(b)Where there is money belonging to the minor, the court may order that a guardian of the estate be appointed and that the money be paid to the guardian or the court may order that the guardianship of the estate be terminated and order one or more of the alternatives provided in Sections 3412 and 3413, or, if there is no guardianship, the court may order one or more of the alternatives provided in Probate Code Sections 3412 and 3413.
11.1104.DISTRIBUTION TO NON-RESIDENT BENEFICIARIES.
If a distribution is to be made to a non-resident beneficiary, and if the assets of the estate exceed $400,000, and more than $100,000 is to be distributed to a nonresident beneficiary, the certificate of the California Franchise Tax Board required by Section 19262 of the Revenue and Taxation Code must be filed before the order of distribution will be signed.
11.1105.DISTRIBUTION TO A TRUST.
(a)If a distribution is to be made to a trust, a statement by the trustee of trustee's willingness to accept the property under the terms of the trust shall be filed with the petition for distribution. Lacking this, a declination to act shall be filed, in which case it should be accompanied by a petition by the personal representative for the appointment of a substitute trustee.
(b)If the will provides for distribution of the estate, or portion thereof, to a trust, the trust provisions set forth in the will shall be set forth in haec verba in the petition and order for distribution, whether or not an accounting is made.
11.1106.DISTRIBUTION TO AN ASSIGNEE.
If distribution is to be made pursuant to an assignment of interest, the court may on the motion of any person interested in the estate or on the motion of the public administrator or on its own motion inquire into the consideration for such assignment and into the circumstances surrounding the execution of such assignment. The signature of the assigner shall be acknowledged.
11.1107.DISTRIBUTION PURSUANT TO AGREEMENT.
If the distributees seek distribution in a manner other than that provided by the will or by the laws of intestate succession, that fact should be alleged, and a written agreement (signed by all involved distributees with signatures acknowledged before a notary public) shall be filed.
If any such distributee is a minor or is under disability, the agreement shall be signed by the minor's legal guardian. Either earlier Court approval of the agreement in the guardianship proceeding must be proved in the probate proceeding or a petition for approval of the agreement in both the guardianship proceeding and the probate proceeding must be brought on for hearing at the same time.
11.1108.PRELIMINARY DISTRIBUTION—BOND.
If a preliminary distribution is made before four months have elapsed after letters are first issued, the Court shall require that the distributees post a bond. Probate Code Sec. 11622. After such four month period has elapsed, the Court may require a distributee's bond unless an accounting has been filed and approved showing the estate to be solvent.
11.1109.PROCEDURE FOR OBTAINING AN ORDER FOR FINAL DISCHARGE.
To obtain a final discharge for the personal representative, the following documents shall be presented to the Clerk: a copy of the decree of distribution, all receipts of distributees, an affidavit for final discharge signed by the personal representative and an order of discharge obtained pursuant to the provisions of Probate Code Sec. 12250 or Sec. 12251.
PART TWELVE. JOINT TENANCIES AND LIFE ESTATES
11.1201.PROCEEDINGS IN NAME OF DECEDENT.
(a)A verified petition to establish the fact of death shall be filed in the name of the deceased person whose interest has been terminated. Probate Code Secs. 200-204.
(b)The order can be obtained ex parte if the petition is accompanied by:
(1)An affidavit or declaration by petitioner that petitioner has no reason to believe that there is any opposition to, or contest of the petition;
(2)A death certificate;
(3)A copy of the deed or other document that created the joint tenancy; and
(4)The proposed order.
Filings not accompanied by these documents must be set for hearing.
(c)There is no provision in the code for attorneys' fees in proceedings for termination of joint tenancy or a life estate. No request for fees for services of this character shall be included in an estate matter, and if so included, will be disallowed.
PART THIRTEEN. PETITIONS SETTING ASIDE ESTATES, PROPERTY PASSING OR BELONGING TO SURVIVING SPOUSE, AND COLLECTION OF SMALL ESTATES
11.1301.PETITION TO SET ASIDE UNDER PROBATE CODE SECS. 6600—6613.
A petition to set aside a decedent's estate (net value under $20,000) under Probate Code Sec. 6600 et seq., shall be filed in the proceedings for the administration of the decedent's estate. If such proceedings have not commenced, a petition to set aside may be filed concurrently with the petition for letters, or if no petition is being filed, a petition may be filed independently.
11.1302.PETITION RELATING TO PROPERTY PASSING OR BELONGING TO SURVIVING SPOUSE.
In addition to the allegations required by Probate Code Sec. 13651, a petition that administration of all or part of the estate is not necessary because all or part of the estate is property passing or belonging to the surviving spouse should contain the facts upon which the petition is based.
11.1303.PROCEDURE FOR COLLECTION OF SMALL ESTATES.
(a)The basis for collection of small estates not exceeding $60,000 is set out in Probate Code Sec. 13100 et seq. (personal property) and Sec. 13150 et seq. (real property). The basis for collection of an interest in decedent's real property that does not exceed $10,000 is set forth in Probate Code Sec. 13200 et seq.
(b)With respect to succession to real property for estates of decedents not exceeding $60,000 under Probate Code Sec. 13150 et seq., the successor of the decedent to an interest in real property shall file a petition requesting an order determining that the petitioner has succeeded to the real property and that administration is unnecessary. Such petition shall be on forms approved by the Judicial Council.
PART FOURTEEN. INDEPENDENT ADMINISTRATION
11.1401.GENERAL.
With respect to matters transacted pursuant to the provisions of the Independent Administration of Estates Act contained in Probate Code Sec. 10500 et seq., the following policies shall apply:
(1)In any petition for distribution, a schedule of claims must be included as part of the petition the name of the claimant, the amount claimed, the date presented, the date allowed, the date paid if the claim has been paid and the amount paid shall be set forth. If any claim has been rejected, the date of service of notice of rejection of claim, if such notice was given, shall be stated; and any known suit on the rejected claim shall be identified.
(2)Although preliminary distribution may be made without accounting, sufficient facts must be set forth in the petition to allow the Court to ascertain that the estate is solvent. An accounting shall be filed if there is a distribution to a trustee who has not theretofore been appointed.
(3)In any petition for distribution, all independent acts taken without prior Court approval shall be set forth and described with particularity, and an allegation made that the 15-day notice of proposed action with attached proof of service shall be filed with the Court. If certain acts have been properly reported in a prior distribution, they need not be repeated.
11.1402.NOTICE AND PUBLICATION REQUIREMENTS.
If the request for authority to administer the estate under the Independent Administration of Estates Act is made by separate petition, notice shall be given in the same manner set forth in Probate Code Sec. 10451.
PART FIFTEEN. TRUSTS
11.1501.COURT JURISDICTION.
(a)The Court has exclusive jurisdiction over the internal affairs of trusts, and has concurrent jurisdiction of (i) actions and proceeding to determine the existence of trusts, (ii) actions and proceedings by or against creditors or debtors of trusts, and (iii) other actions and proceedings involving trustees and third persons. Probate Code Sec. 17000.
(b)Proceedings concerning the internal affairs of trusts are set forth in Probate Code 17200.
11.1502.CONTINUING JURISDICTION.
A trust created by a will is not subject to the continuing jurisdiction of the Court, unless:
(1)The testator provides otherwise, or
(2)The trust was created by a will executed before July 1, 1977, and not incorporated in a will or after July 1, 1977, and the trust has not been removed from continuing court jurisdiction. Probate Code Sec. 17300(a) and 17303.
If the trustee is not a trust company, Probate Code Sec. 17352 provides that a pre-July 1, 1977 testamentary trust may be removed from continuing jurisdiction upon a petition filed pursuant to that section. If the petition is granted, the Court may impose such conditions including a bond, as it deems necessary. If a trustee is a trust company, a testamentary trust shall be removed from continuing jurisdiction pursuant to Probate Code Sec. 17351.
11.1503.TRUSTEES' ACCOUNTS.
Accounts filed by trustees shall conform to the requirements of Rule 11.901 and shall set forth specifically the period covered by the account. If the trust res was formed in whole or in part by the distribution from an estate, the first account should clearly reconcile the amount first chargeable with both the decree of distribution and the trustees' receipt filed with the estate from which the property was received.
11.1504.BENEFICIARIES TO BE LISTED IN PETITION.
All petitions filed under Probate Code Sec. 17200 involving a testamentary trust or inter vivos trust shall set forth the names and last known addresses of all trustees, all beneficiaries required to receive notice under Chapter 2 (commencing with Section 15800) of Part 3 of the Probate Code, and the Attorney General if the petition relates to a charitable trust.
11.1505.NOTICE TO BENEFICIARIES.
Petitions filed under Probate Code Sec. 17200 require appropriate notice be given to all of the following persons:
(a)all trustees;
(b)all beneficiaries required to receive notice under Chapter 2 (commencing with Section 15800) of Part 3 of the Probate Code;
(c)the Attorney General if the petition relates to a charitable trust, unless the Attorney General waives notice. Notice must be given at least thirty (30) days before the time set for the hearing on the petition. Probate Code Sec. 17203.
11.1506.TRUSTS ESTABLISHED BEFORE DECREE OF DISTRIBUTION.
(a)The Clerk shall issue a certificate that the trustee is a duly appointed and acting trustee under the trust if the Court file shows the incumbency of the trustee upon the trustee accepting its duties and responsibilities as such trustee and making application to the Clerk for such certificate and paying the appropriate fees.
(b)The trustee named in a will admitted to probate may be appointed before the decree of distribution is made, upon filing of an appropriate petition.
(c)Where a vacancy exists, a trustee not named in the will admitted to probate may be appointed upon the filing of a petition under Probate Code Sec. 15660. Written notice shall be given to all beneficiaries by mail. A bond may be required of a trustee who is a nonresident or is not named in the will.
The order appointing the trustee in paragraphs (b) and (c) shall contain all the terms of the trust and the trustee shall have all the powers and duties in respect of the trust res set forth in the trust instrument.
If no trustee claims the trust res or can qualify to receive the same and there is no indication in the will as to where the proceeds are to go, a petition to determine heirship may be filed in the same manner as provided by Probate Code Sec. 17200 to determine to whom distribution shall be made.
11.1507.FEES OF TRUSTEES AND THEIR ATTORNEYS.
See Part Ten, Sec. 11.1001 et seq. of these rules.
PART SIXTEEN. GUARDIANSHIPS
11.1601.PETITION FOR APPOINTMENT OF GUARDIAN.
(a)A petition for appointment of guardian of the person or estate of a minor or minors shall be in the form approved by the Judicial Council and shall contain all the information set forth in Probate Code Sec. 1510. If the petition is for guardianship of the person of a minor, and the petitioner is a non-relative, the petition shall conform to the requirements set forth in Probate Code Sec. 1510 and Sec. 1541; and appropriate notice given as set forth in Sec. 1511 and Sec. 1542.
(b)The petition shall set forth with specificity the reason for the necessity of the establishment of a guardianship.
(c)The petition shall state whether or not the minor is a ward or dependent child of the juvenile court or adoption proceedings are undertaken and whether or not any custody proceeding has been filed in respect to the minor. If the minor is the subject of a juvenile court proceeding or custody proceeding, appropriate notice of the guardianship proceedings shall be given to the interested parties in such other proceedings. All guardianship proceedings involving a dependent child or ward of the Juvenile Court shall be set for hearing before the Juvenile Court.
(d)When a petitioner is a relative, a copy of the petition and other papers filed therewith shall be provided to the Court Investigator. See Rule 11.1809. A copy of the petition only, shall be provided to the San Luis Obispo Department of Social Services Child Protective Services. When the petitioner is a nonrelative, a copy of the petition and other papers filed therewith shall be provided to the San Luis Obispo County Department of Social Services but not to the Court Investigator.
11.1602.INVESTIGATION AND REPORT BY COURT INVESTIGATOR.
(a)An investigation shall be conducted pursuant to the provisions of Probate Code Sec. 1513, and petitioner shall request a referral to the appropriate investigator at the time of filing the petition.
(b)The Court Investigator shall conduct an investigation and report to the Court prior to the appointment of a guardian for either the person and/or estate of the ward. Although not required by statute, the Court Investigator shall report on an annual basis in guardianship of the person matters. The accounting review requirements specified under Rule 11.1806 shall satisfy guardianship of the estate matters. The cost of the review investigation shall be a charge against the estate of the ward.
11.1603.GUIDE FOR GUARDIANS OF DEPENDENT CHILDREN.
The Judicial Council has approved a "Guardianship Pamphlet (For Guardianship of Dependent Children of the Juvenile Court under Welfare and Institutions Code Sections 366.25 and 366.26)" which may be obtained from the Clerk's office.
11.1604.SUPPORT OBLIGATION OF PARENTS.
As parents are required by statute to support their children, the Court will not permit guardianship funds to be used for the minor's maintenance where one or both parents are living except upon a showing of the parent's financial inability or other circumstances which would justify the Court in departing from this rule in the best interests of the minor. In all cases where guardianship funds are to be used for the ordinary expenses of supporting a minor, and where there is a parent living who has the obligation to support the minor, the guardian must obtain Court approval prior to the expenditure of funds. A petition for authority to expend funds for support shall be accompanied by a detailed explanation (including financial statements, if necessary) of the parent's inability to support the child.
PART SEVENTEEN. CONSERVATORSHIP
11.1701.PETITION FOR APPOINTMENT OF CONSERVATOR.
(a)The petition for appointment of a conservator shall comply with the provisions of Probate Code Sec. 1821 on a form approved by the Judicial Council.
(b)A separate copy of the petition and other papers filed shall be provided to the Court Investigator. See Rule 11.1809.
11.1702.LETTERS OF CONSERVATORSHIP.
Letters of Conservatorship will not be issued by the Clerk until there has been filed (1) a proof of service of Order Appointing Conservator, and (2) a Statement of Duties and Liabilities of the office of the conservator, and (3) proof of purchase of a copy of the HANDBOOK OF CONSERVATOR, published by the Judicial Council of California.
11.1703.HANDBOOK FOR CONSERVATORS.
The HANDBOOK FOR CONSERVATORS can only be purchased at the Clerk's office. This handbook includes the required Directory of Community Resources prepared by the Court Investigator's office.
11.1704.GENERAL PLAN.
All conservators shall file a General Plan with the Court within 90 days of appointment. Probate Code Sec. 1831.
PART EIGHTEEN. PROVISIONS COMMON TO GUARDIANSHIPS AND CONSERVATORSHIPS
11.1801.HEARING DATES.
Unless otherwise ordered by the Court, petitions for guardianships or conservatorships shall be set for hearing by the Clerk at least 30 calendar days from the filing of the petition. If a temporary guardian or conservator is appointed, the hearing date shall be set at least 40 calendar days from the filing of the petition for temporary appointment. If an out-of-county investigation is required, the hearing on said petition shall be set at least 60 days from the filing of petition.
11.1802.APPOINTMENT OF TEMPORARY GUARDIAN OR CONSERVATOR.
No petition for an appointment of a temporary guardian or conservator shall be considered prior to the filing of the petition for appointment of a general guardian or conservator. On or after filing a petition for appointment of a guardian or conservator, any person entitled to be a guardian or conservator may be appointed as temporary guardian or conservator of the person or estate or both. Probate Code Sec. 2250. This Court prefers that the petition for the appointment of a general guardian or conservator shall be separate from the petition for the appointment of a temporary guardian or conservator because the petition for a temporary guardian or conservator may be heard ex parte and the petition for a general guardian or conservator is set on calendar for hearing.
11.1803.NOTICE.
(a)Notice shall be provided on forms approved by the Judicial Council and the petitioner shall cause it and a copy of the petition to be personally served in accordance with the requirements of Probate Code Sec. 1511 for guardianships, Probate Code Sec. 1822 for conservatorships, and Probate Code Sec. 1460 for general requirements, except where the Court is able to determine on a sufficient declaration either of the following:
(1)The person cannot with reasonable diligence be given notice; or
(2)The giving of the notice would be contrary to the interests of justice.
(b)A party seeking temporary letters of guardianship or conservatorship shall give notice of the application to the spouse, parents, proposed ward or conservatee, other persons who seek or might be expected to seek letters, and any other person who appears to be equitably entitled to notice, unless on good cause shown the Court orders otherwise.
(c)Notice will be required to a former minor or a restored ward or conservatee on the settlement of the final account. Notice must also be given to the representative of the estate of a deceased ward. Written approval of such final account by the former minor or restored ward or conservatee may be substituted for such notice.
(d)Petitions for Letters of Guardianship filed by only one parent must be personally served on the other parent, if living, together with notice of the hearing, at least fifteen (15) days before the said hearing unless:
(1)The petition is accompanied by a Consent to Appointment and Waiver of Notice signed by the other parent; or
(2)The petition is accompanied by a declaration setting forth good cause why the notice of the hearing may be dispensed with.
11.1804.BOND.
(a)Except as provided by statute, every guardian and conservator shall give a bond in the amount fixed by the Court. Probate Code Sec. 2320. Bond shall be filed before issuance of letters.
(b)In a conservatorship proceeding, where the conservatee, having sufficient capacity to do so, has waived the filing of a bond, the Court in its discretion may dispense with this requirement or may permit the filing of a bond in an amount less that would otherwise be required under Probate Code Sec. 2320.
(c)One appointed as guardian of the person or conservator of the person need not file a bond unless required by the Court.
11.1805.INVENTORY AND APPRAISEMENT.
An inventory and appraisement of the estate, as of the day of appointment, shall be filed by the guardian or conservator with the Clerk within ninety (90) days of appointment unless the Court has granted a petition for further time for filing. Probate Code Sec. 2610. The inventory and appraisement shall be in the form of accounts for decedents' estates as set forth in these rules. See Rule 11.603.
11.1806.ACCOUNTS.
(a)An accounting shall be filed by the guardian or conservator:
(1)At the expiration of one year from the time of appointment.
(2)If the conservatee or ward receives money from the Veteran's Administration, accounting shall be filed annually; otherwise not less frequently than biannually after the first report.
(3)Upon the ward's 18th birthday.
(4)Upon death of the ward or conservatee.
(5)Upon death, removal, or resignation of the guardian or conservator.
(6)Upon any other termination of the guardianship or conservatorship.
(7)At such other times as the Court may order.
(b)Accounts shall contain the information required in Probate Code Sec. 2620 and shall be in the form of accounts for decedents' estates as set forth in these rules. If the account shows expenditures not authorized by prior order of the Court, the guardian shall provide supporting declarations or testimony with respect to such expenditures before the account shall be approved.
(c)The guardian or conservator shall set forth in a separate schedule all debts of the ward or conservatee known or anticipated by the guardian or conservator.
(d)The conservatee's current residence address shall be set forth in each report or account.
(e)The petition and account shall set forth a statement of the age, health/physical condition, activity/ treatment program and whereabouts of the ward or conservatee with an explanation of any unusual items appearing in the account.
(f)Where there are multiple wards or conservatees joined in a single proceeding an account shall reflect a separate accounting for each of the respective wards or conservatee.
(g)All copies of the account (original, copy for Court Investigator, and copies to be endorsed and returned to attorney) shall be forwarded to the Court Investigator. After completing his review, the Court Investigator shall file the account and set the hearing on a date mutually agreed upon with counsel. Counsel may set the account for hearing if the Court Investigator fails to complete his review and set the same for hearing within 30 days of receipt from petitioner or his counsel.
(h)The account shall be accompanied by a Confidential Status Report where the conservator of the state is also the conservator of the person.
11.1807.REPORT BY COURT INVESTIGATOR.
The Court Investigator shall review each account filed to ascertain the correctness of the account and whether the assets are being utilized in the best interests of the conservatee or ward. The Court Investigator shall file a report of his findings with the Court.
11.1808.WAIVER OF ACCOUNTING—WHEN PERMITTED.
The Court does not favor the waiver of any final accounting by a guardian or conservator. A minor may not waive an accounting. A minor who has attained majority will not be permitted to waive a final accounting except upon a showing of unusual circumstances, and then only if the minor is present in Court at the hearing on the petition for termination without an accounting.
11.1809.PAPERS TO BE DELIVERED TO COURT INVESTIGATOR.
In all matters in which the Court Investigator has been appointed, the following documents shall be served upon the Court Investigator:
(a)A copy of the petition and order appointing the guardian or conservator.
(b)A notice of every hearing involving the guardianship or conservatorship must be served at least 10 days prior to the hearing.
(c)A copy of any report and account filed with the Court and a copy of the order approving or disapproving the account.
(d)A copy of the order discharging the conservator of a deceased conservatee or the guardian of a deceased ward or ward reaching majority.
(e)The address of the conservatee or ward.
11.1810.ORDER FOR COURT INVESTIGATOR'S FEES.
If Court investigator's fees are due, the Court will not sign the order approving accounting or terminating the matter until the fee is paid or waived. Probate Code Sec. 1851.5.
11.1811.POWERS AND INVESTMENTS BY GUARDIAN OR CONSERVATOR.
(a)It is the policy of the Court to grant only those additional powers necessary or proper under the circumstances in each case. The Court will not routinely grant the guardian or conservator the additional powers set forth in Probate Code Sec. 2591 except on showing of good cause. Any powers so granted must be set forth at length in the order and in the letters.
(b)The investment standard set out in Probate Code Sec. 16040(b) relating to investments by trustees, is the standard in authorizing proposed investments by guardians or conservator.
(c)Subject to the limitations set forth in Probate Code Sec. 2574(b), the guardian or conservator may invest funds in those investments described in Probate Code Sec. 2574(a) without authorization of the Court. Investments in existence at the time of the creation of the guardianship usually may be maintained.
(d)The Court will not approve the investments of funds in unsecured loans, loans to a near relative, or bonds or obligations of foreign governments or corporations, whether payable in dollars or not.
11.1812.FINAL DISCHARGE.
Each order for final discharge submitted to the Court for approval shall be accompanied by an affidavit of the guardian or conservator stating that distribution has been made of all property and assets of the estate in accordance with the order for distribution, that all money, stocks, bonds, and other personal property have been delivered to the distributees as ordered by the Court, that receipts of the distributees are on file, and that all acts lawfully required of him, in his representative capacity, have been performed.
11.1813.TERMINATION OF GUARDIANSHIP OR CONSERVATORSHIP.
Upon the filing of a petition to terminate any guardianship or conservatorship, the Court Investigator shall make a report to the Court concerning the circumstances of the termination and his recommendations, if any.
PART NINETEEN. PROPERTY BELONGING TO MINORS
11.1901.DISPOSITION OF MINOR'S FUNDS (Probate Code Secs. 3410—3413).
(a)A petition under Probate Code Secs. 3410-3413 must set forth jurisdictional facts, state the amount to be paid and by whom, the amount of fees and reimbursement of costs requested, the relief requested, and a statement of the reasons that the requested relief will best serve the interests of the minor.
(b)The petition may be presented ex parte if the only relief sought (other than reimbursement of costs and award of attorneys' fees) is to deposit funds in a blocked account and the amount involved does not exceed $20,000. Otherwise, the petition shall be noticed.
(c)Where the minor's funds are to be deposited in a blocked account, the order shall provide that the person holding funds shall distribute the ordered amount of fees and costs, if any, directly to the person(s) entitled thereto and disburse the balance to the selected depository, whose name and address shall be specified. The order shall also provide that the receipt by the depository of the funds and of a copy of the order shall be filed forthwith upon the deposit of the funds. The receipt must also acknowledge that the funds may be withdrawn only on court order.
11.1902.REQUEST FOR WITHDRAWAL OF FUNDS IN BLOCKED ACCOUNT.
(a)All requests or petitions for withdrawal of minor's funds deposited in a blocked account shall be made to the Court. Requests for withdrawal may be presented ex parte and shall be in completed form. A statement shall be presented with the petition verifying the amount of each item of the proposed expenditure.
(b)If the funds requested are for the support and maintenance of the minor and the petitioner is a parent, the parent shall file a declaration showing the parent's financial inability or other circumstances justifying the withdrawal. See Rule 11.1603.
(c)No subsequent order for withdrawal will be signed by the Court until the trustee or guardian has complied with the directions of the Court contained in prior withdrawal orders. This means that all supporting vouchers are required certifications and declarations shall be on file with the Clerk.
11.1903.WITHDRAWAL ON MINOR REACHING 19 YEARS OF AGE.
When a petition for withdrawal of all the funds is based upon the minor's having reached majority, a birth certificate or other satisfactory evidence of age must be presented with the petition.
PART TWENTY. MINOR'S CLAIM
11.2001.SETTLEMENT OF MINOR'S CLAIM.
The following procedure shall be followed in the settlement of the claim of a minor whether by way of compromise, covenant not to sue, or stipulated judgment ("minor's compromise").
(a)Requests for approval of minor's compromise shall be heard on the Probate Calendar.
(b)The presence of the minor, the parent or guardian of the minor and counsel shall be required unless excused by the Court.
(c)Current medical reports, if the matter is applicable to the physical condition of the minor, giving a diagnosis and prognosis of a minor's condition shall be attached to the petition or submitted at the hearing.
(d)Except for good cause shown, attorney's fees in such instances shall not exceed 25% of the net proceeds of the minor's compromise.
11.2002.DISTRIBUTION.
(a)If the petition is approved, the Court shall direct whether the funds are to be paid to a parent, to a block account, or to a general guardian.
(b)If the settlement order provides for a deposit in a blocked account in lieu of appointment of a guardian, the Court shall require the attorney submitting the proposed form of order to submit also an order to deposit form signed by the Trustee.
APPENDIX A. NEWSPAPERS OF GENERAL CIRCULATION
Area of CirculationPublished
The County Telegram-TribuneCity of San Luis Obispo,Daily
1321 Johnson AvenueArroyo Grande, Pismo
P.O. Box 112Beach, Avila Beach, Los Osos
San Luis Obispo, CA 93406& Cambria
The Paso Robles Daily PressCity of Paso Robles,Daily
P.O. Box 427Templeton, Atascadero
Paso Robles, CA 93447& surrounding areas
The Paso Robles Country NewsCity of Paso Robles,Weekly
945 Spring StreetTempleton, Atascadero
Paso Robles, CA 93446& surrounding areas
Atascadero NewsAtascadero & TempletonTwice
5660 El Camino RealSanta MargaritaWeekly
Atascadero, CA 93422
Five Cities Times-Press RecorderArroyo Grande, Grover City,Twice
P.O. Box 460Nipomo, PismoWeekly
Arroyo Grande, CA 93420Beach & Shell Beach
The Sun-BulletinMorro Bay, Cayucos, Los OsosWeekly
P.O. Box 1387& Cambria
Morro Bay, CA 93442
The CambrianCambria & San SimeonWeekly
783 Main Street
Cambria, CA 93428
New TimesSan Luis Obispo CountyWeekly
197 Santa Rosa
San Luis Obispo, CA 93405
APPENDIX B. SUGGESTED FORM OF SUMMARY OF ACCOUNT (RULE 11.901)
SUMMARY OF ACCOUNT
Petitioner is chargeable, and is entitled to the credits, respectively, as set forth in this summary of account. The attached supporting schedules are incorporated herein by reference:
CHARGES
Amount of Inventory and Appraisement$______________
(or, amount chargeable from prior account)
Receipts during Account Period (Schedule A)$______________
Gains on Sales (Schedule B)$______________
Other Acquisitions of Property (Schedule C)$______________
Total Charges$______________
CREDITS
Disbursements during Account
Period (Schedule D)$______________
Losses on Sales (Schedule E)$______________
Other Credits: (Property
Distributed) (Schedule F)$______________
Property on Hand (Schedule G)$______________
Total Credits$______________
___________________________________
Notes:
(a)As indicated, the summary should be supported by detailed schedules. The schedules of receipts and disbursements should show the nature or purpose of each item and date thereof. The schedule of property on hand should describe each item and indicate the appraised value.
(b)All accounts of executors and administrators shall conform to the requirements set forth in Probate Code Sec. 10900 and, as nearly as possible, in the forms suggested in Chapter 19 of California Decedent Estate Practice (CEB 1986).
APPENDIX C. EXAMPLE OF STATUTORY FEE COMPUTATION (RULE 11.1003)
Assets as per Inventory$______________
Receipts (Schedule A)$______________
Gains on Sales (Schedule B)$______________
Subtotal $______________
Less:
Losses on Sales (Schedule C)$______________
TOTAL ESTATE ACCOUNTED FOR$______________
Computation
4% on first$ 15,000