Académique Documents
Professionnel Documents
Culture Documents
Hower
Prepared by
George Yount
A u s t r a l i a C a n a d a M e x i c o S i n g a p o r e S p a i n U n i t e d K i n g d o m U n i t e d S t a t e s
CONTENTS
In this supplement, a page reference follows each head(Hower 000). This page reference correlates with
Dennis Howers textbook, Wills, Trusts, and Estate Administration for the Paralegal, Fifth Edition.
ii
1 THE PURPOSE AND
NEED FOR A WILL
1
2 THE CONCEPT OF PROPERTY
RELATED TO WILLS,
TRUSTS, AND ESTATE
ADMINISTRATION
2
FORMS OF PROPERTY OWNERSHIP (HOWER 32)
Ownership of property and all of the rights in property by a single person is absolute owner-
ship. CC 679. When ownership is shared with another, or enjoyment of the property is delayed,
or its use is restricted, ownership is qualified. CC 680.
3
Division (Hower 54)
As stated in the text, at dissolution (California is a no-fault state) the community property is
divided equally between the spouses and the separate property of each is affirmed. As previ-
ously noted, however, a transmutation of the separate or community property of each spouse
may be undertaken, dividing the estate even in the absence of a dissolution. To be valid, a
transmutation must be in writing, expressly declaring the transmutation, and made, joined
in, consented to, or accepted by the spouse whose interest is adversely affected. Fam 852(a);
Estate of MacDonald, 51 Cal.3d 262, 272 Cal.Rptr. 153 (1990). However, no writing is required
for gifts between spouses of clothing, wearing apparel, jewelry, or other tangible personal
items not of substantial value in light of the circumstances of the marriage. Fam 852(c).
4
Spouses Right to Election or Elective Forced Share ( Hower 65)
A surviving spouses election to take against a decedent spouses will is limited to those in-
stances in which the will purports to convey all or some portion of the surviving spouses half
interest in community (or quasi-community) property. Prob 141. Thus, if a spouse dies leaving
a will which devises to another all of the community property (including the surviving
spouses 50% interest in that property), the surviving spouse is given an election to take what
is provided for him or her in the will, or to take his or her intestate share of the estate as though
no will existed. If the election is made to take against the will, the electing spouse receives his
or her intestate share of the probate estate first, and the balance of the estate remaining is then
distributed in accordance with the decedents will. The election is made by filing a statement
with the court indicating that the surviving spouse claims his or her one-half share of com-
munity (and/or quasi-community) property, or that the spouse waives that right and consents
to the distribution of property in the will.
5
3 THE PARTICIPANTS AND THE
PROPER COURT
6
Prob 10810 establishes a fee schedule based upon the value of the estate accounted for by
the personal representative for compensation of an estate attorney for conducting ordinary
proceedings as follows:
Thus, for example, an attorney representing an estate with a total value of $100,000 shall
receive compensation of $3,150 (being .04 $15,000 $600 plus .03 $85,000 $2,550, to-
talling $3,150); or, for an estate with a value of $600,000, authorized attorneys fees for ordinary
services would be $13,750 (being .04 $15,000 $600 plus .03 $85,000 $2,550 plus .02
$500,000 $10,000, totalling $13,750).
In addition, Prob 10811 authorizes the award of additional compensation for attorneys ex-
traordinary services in an amount determined to be just and reasonable by the court.
A will may make provision for the payment of attorneys fees; however, if it does, those
fees shall be the full and only compensation of the attorney for the personal representative
unless the personal representative or the attorney petition to be relieved from that provi-
sion of the will and the court determines, after notice to all interested parties and hearing,
that it is to the advantage of the estate and in the best interest of all interested in the estate
to authorize an award of attorneys fees in excess of that provided for in the will. Prob
10812. Any agreement for payment of attorneys fees in excess of those permitted by statute
is void. Prob 10813.
Moreover, if a special administrator is appointed, the combined fees of the attorneys for
both the special administrator and the other personal representative cannot exceed the sums
set forth by statute for the ordinary and extraordinary services of attorneys for personal rep-
resentatives. Prob 8547(c) and (d).
However, Prob 10804 provides that a personal representative who is an attorney may be
compensated as a personal representative, but may not receive compensation as the estate at-
torney unless the court specifically approves the right to compensation in advance after find-
ing that the arrangement is to the advantage, benefit, and best interests of the estate.
Legal services for which the attorney may be compensated include those services
rendered by any paralegal performing the legal services under the direction and
supervision of an attorney. The petition or application for compensation shall set
forth the hours spent and services performed by the paralegal.
7
Venue (Hower 84)
The proper venue for probate proceedings is the county in which the decedent was domi-
ciled at the time of death, and not the place of death. Prob 7051. If the decedent was a non-
domiciliary, then proper venue is in the place of death if the decedents property is also located
there; or, if the decedent owned no property located at the place of death or if the place of death
was outside California, then the proper venue is any county in which the decedent owned
property at the time of death. If property is located in more than one county, then proper venue
is in the county in which a petition for ancillary administration is first filed. Prob 7052.
8
9
10
4 THE LAW OF SUCCESSION:
DEATH TESTATE OR
INTESTATE
11
Types of DispositionsGifts Made in a Will (Hower 97)
Within any class of gifts, shares of beneficiaries abate pro rata. Prob 21403(a). Annuities and
demonstrative gifts are treated as specific gifts to the extent that they are given out of the identi-
fied fund, and general gifts to the extent that they may be satisfied out of property other than the
specified source. Prob 21403(b). If a specific gift is subject to abatement, the recipient may satisfy
the contribution for abatement out of other property to preserve the specific gift. Prob 21405. A
specific gift is not subject to abatement to exonerate another encumbered specific gift. Prob 21404.
12
DEATH WITHOUT A WILLINTESTACY (HOWER 106)
General Rules of Distribution Under State Intestate Succession Statutes (Hower 116)
The bulk of the intestate succession laws are set forth in Prob 6400, et seq. in California. As Cal-
ifornia is a community property state, the intestate succession laws take into account the dis-
tinction between community property and separate property and treat each differently. [Please
note, as previously discussed, that community and quasi-community property are treated
identically in California. Hence, all further references to community property in this supple-
ment should be understood to include quasi-community property as well.]
In California, if a decedent dies survived by a spouse, all of the community property in-
terest of the decedent passes to the surviving spouse. Prob 6401(a) and (b). This, combined with
the surviving spouses one-half interest, results in the surviving spouse being the sole owner
of all of the community property.
The decedents separate property is distributed in accordance with Prob 6401(c). The sur-
viving spouse receives all of the separate property as well if the decedent is not also survived
by any issue, parent, brother, sister, or issue of a deceased brother or sister. Prob 64901(c)(1).
The surviving spouse receives one-half (1/2) of the decedents separate property if the
decedent also leaves either: (a) one child or the issue of one deceased child, or (b) no issue, both
a parent or parents or their issue, or the issue of either of them. Prob 6401(c)(2).
The surviving spouse receives one-third (1/3) of the decedents separate property if the
decedent is also survived by: (a) more than one child; (b) one child and the issue of one or more
deceased children; or (c) issue or two or more deceased children. Prob 6401(c)(3).
That part of the intestate estate not passing to the surviving spouse, as above, or if there is
no surviving spouse, is distributed (according to Prob 6402(a)) to the surviving issue of the dece-
dent, in equal shares if of equal degree. If the issue are not of equal degree, then those of more
remote degree take as provided in Prob 240 (per stirpesthose of the nearest generation to the
decedent still living each get a share, and the issue of those of that generation who are deceased
equally divide the share of their deceased ancestor of that generation). Prob 6402(a) and 240.
If there are no surviving issue, then the estate passes to the following categories of persons,
per Prob 6402(c), either equally, if all of the same degree of kinship, or as provided in Prob 240,
described above. If there are no surviving persons in the category identified, then the estate
passes to the next category identified, in the order indicated:
Notwithstanding the provisions of Prob 6402, if there are no surviving spouse or issue of a dece-
dent, and the decedent had a predeceased spouse who died less than fifteen (15) years before the
decedent, then the real property of the decedent attributable to the decedents predeceased
13
spouse passes, according to Prob 6402.5(a), to the predeceased spouses issue, parents, issue of
parents, and then kin. With regard to personal property having documents of title and an aggre-
gate value in excess of $10,000, if the predeceased spouse died less than five (5) years before the
decedent, pursuant to Prob 6402.5(b), such personal property passes in a like manner.
In order to take by intestate succession, a person must survive a decedent by 120 hours.
Prob 6403. Relatives of the halfblood, adopted persons, and those conceived before but not
born until after the decedents death take as if they were relatives of the whole blood or had
been born prior to the decedents death. Prob 6406, 6407, 6450, and 6451.
If a person is related to a decedent by two lines of relationship, he or she may take only a
single share through the line of relationship resulting in a larger share. Prob 6413.
14
Effect of Divorce and Marriage on a Spouses Rights (Hower 122)
A final dissolution or an annulment of marriage terminates an ex-spouses intestate succession
rights (Prob 78) and revokes any disposition or appointment made in a will executed prior to
the dissolution, unless the will expressly provides otherwise, or the parties subsequently re-
marry. Prob 6122, 6227. However, a mere decree of legal separation which does not terminate
the marriage does not affect the spouses inheritance rights (Prob 6122(d), 6227(c)); however,
being a party to an action for separate maintenance, annulment or dissolution and living apart
from the decedent at the time of the decedents death will affect the spouses priority for ap-
pointment as or nomination of an administrator of the decedents estate. Prob 8462, 8463.
If a testator fails to provide for his or her surviving spouse by will and the spouse and tes-
tator married after the execution of the testators will, then (absent evidence that the testator
failed to provide for the spouse intentionally, or that the testator otherwise provided for the
spouse outside the will, or that the spouse made a valid agreement waiving any share in the
estateProb 6561), the omitted (pretermitted) spouse will receive the testators one-half of
the community and quasi-community property as well as the share of the testators separate
property that the spouse would have received had the testator died intestate. Prob 6560.
15
lifetimes of the person and the foster or stepparent; and (2) the foster or stepparent would have
adopted the person but for a legal barrier to doing so. Prob 6454.
16
decedent for support are entitled to such reasonable family allowance out of the estate as is nec-
essary for their maintenance and support during the administration of the estate. Prob 6540(a).
In addition, family allowancein the courts discretionmay also be given to other adult chil-
dren and parents of the decedent actually dependent, in whole or in part, upon the decedent for
support. Prob 6540(b).
A family allowance may be granted retroactively or prospectively from the date of the
courts order, for a time period specified by the court, but no earlier than the date of the dece-
dents death and no later than the distribution of the property of the estate or, if the estate is
insolvent, no later than one year after the granting of letters. Prob 6543.
Family allowances are sought by petition and may be granted or modified only after a
hearing, with notice to all interested persons. Prob 6541.
17
5 WILLS: VALIDITY
REQUIREMENTS,
MODIFICATION,
REVOCATION, AND CONTESTS
or (b) the individual suffers from a mental disorder with symptoms including delusions or hal-
lucinations, in which the symptoms result in the devising of property in a way which, except
for the delusions or hallucinations, the individual would not have done. Prob 6100.5.
To the extent that a will may have been procured by duress, menace, fraud, or undue in-
fluence, the will or a part of the will is ineffective. Prob 6104.
19
Formal Requirements of a Will (Hower 145)
20
Lost Wills (Hower 157)
If neither a will nor a duplicate original, last known to be in the testators possession, cannot
be located after the testators death, it is presumed that the testator destroyed the will with the
intent to revoke it. Prob 6124.
However, lost or unintentionally destroyed wills may be proven by a petition including a
written statement of the testamentary words or their substance. Prob 8223.
21
able cause, who contests a provision that benefits: (1) a person who drafted or transcribed the in-
strument; (2) a person who directed the drafter of the instrument regarding its substantive pro-
visions or to include a no contest clause in the instrument; or (3) a person who acted as a witness
to the instrument. Prob 21307. Moreover, a beneficiary may seek declaratory relief from the court
by petition to determine whether a beneficiarys actions would constitute a contest within the
meaning of a no contest clause without reaching the merits of the clause or the action proposed
and, hence, without activating the bar of the no contest clause. Prob 21320, et seq.
22
6 PREPARATION TO DRAFT
A WILL: CHECKLISTS AND
THE CONFERENCE WITH
THE CLIENT
23
7 FINAL DRAFT AND
EXECUTION OF A VALID WILL
24
Testamentary Trust Clauses (Hower 217)
The Rule Against Perpetuities and its application are contained in Prob 21200-21231.
25
8 INTRODUCTION TO TRUSTS
The Trustee: The Fiduciary and Administrator of the Trust (Hower 253)
27
A co-trustee may act alone for the trust only where they are the only other trustee and their
co-trustee is absent, ill, or temporarily incapacitated, or where there is a vacancy in the office
of the co-trustee, where necessary to accomplish the purposes of the trust or to avoid ir-
reparable injury to the trust. Prob. 15621, 15622.
28
Continue, operate, incorporate, dissolve, or change the form of a business or enterprise
(Prob 16222).
Invest (Prob 16223, 16224).
Make deposits (Prob 16223).
Acquire and dispose of property, for cash or credit, at public or private sale, or by exchange
(Prob 16226).
Manage, control, develop, divide, improve, exchange, partition, abandon, or change the
character of trust property (Prob 16227).
Encumber, mortgage, or pledge trust property (Prob 16228).
Repair, alter, improve, demolish, raze, or erect trust property (Prob 16229).
Subdivide, develop, dedicate to public use, adjust boundaries, exchange, partition, or ded-
icate easement of land (Prob 16230).
Lease (Prob 16231 and 16232).
Grant or acquire options (Prob 16233).
Hold securities, vote, waive notice, consent, or exercise the rights of shareholders, members,
or owners (Prob 16234-16239).
Insure trust property (Prob 16240).
Borrow money (Prob 16241).
Pay, contest, release, or settle claims (Prob 16242).
Pay trust expenses, taxes, assessments, fees, employees, and agents (Prob 16243).
Make and guarantee loans to the beneficiary (Prob 16244).
Make distributions to beneficiaries and others (Prob 16245, 16246).
Hire persons and agents (Prob 16247).
Execute and deliver instruments (Prob 16248).
Prosecute and defend actions, claims, and proceedings (Prob 16249).
Apportion income and expenses between principal, interest, and beneficiaries (Prob 16300-
16315).
29
Duty of Loyalty (Hower 258)
The trustees duty of loyalty is to administer the trust solely in the interest of the beneficia-
ries (Prob 16002(a)) and, if there are two or more beneficiaries, to deal with them impartially.
Prob 16003.
A trustee of two trusts may sell or exchange trust property between the trusts if (a) the sale
or exchange is fair and reasonable to the beneficiaries of both trusts and (b) the trustee has
given notice to all beneficiaries of all of the material facts known (or which should be known)
to the trustee. Prob 16002(b). However, a trustee of one trust may not knowingly become a
trustee of another trust adverse to the interests of the beneficiaries of the first trust and has a
duty to eliminate the conflict or resign when the conflict becomes known. Prob 16005.
A trustee has a duty not to use or deal with trust property for the trustees own benefit or
for any purpose not connected with the trust, and a trustee may not take part in any transac-
tion in which the trustee has an interest adverse to the beneficiary (Prob 16004(a)), including
not enforcing claims against trust property acquired by the trustee after contemplation of ap-
pointment as trustee. Prob 16004(b).
Any transaction between trustee and beneficiary during the term of the trust or while the
trustee holds influence over the beneficiary by which the trustee gains an advantage from the
beneficiary (other than agreements for the hiring or compensation of the trustee) is presumed
to violate the trustees fiduciary duties. Prob 16004(c).
Duty to Make Payments of Income and Principal to the Beneficiaries (Hower 262)
Payments of principal and income must be made in accordance with the express terms of the
trust. Prob 16302(a)(1). In the absence of such express contrary direction, payments are made,
first, pursuant to statutory direction, or pursuant to what is reasonable and equitable in view
of the interests of those entitled to income or principal, in accordance with the standard of care
imposed upon the trustee by statute. Prob 16302(a)(2) and (3).
The statutory scheme regarding distribution of income and application of principal and in-
terest is set forth in Prob 16300-16315.
30
The account shall contain a statement of receipts and disbursements; assets and liabilities;
trustees compensation; a statement that a court review may be obtained by petition; and a
statement that claims against the trustee for breach of trust may not be made after three years
from the date the beneficiary receives the accounting or report of the trustee. Prob 16063.
No accounting may be required where the beneficiary and trustee are the same person;
where the right to an accounting or report has been waived in writing by the beneficiary (how-
ever, such a waiver may be revoked in writing); or where the trust is revocable and the bene-
ficiary does not hold the power to revoke at the time. Prob 16064.
Any limitation or waiver in a trust instrument of the obligation to account is against pub-
lic policy and void. Prob 16062(e).
31
nation to increase or decrease such compensation based upon the circumstances. Prob 15680. A
trustees fee may also be increased on sixty (60) days written notice to beneficiaries. Prob 15686.
However, an attorney serving as trustee may receive compensation only either as trustee or as
attorney for the trustee (and any family member, law partnership, or law corporation associated
with the trustee may not receive any compensation) unless first authorized without objection,
or pursuant to court order if there is objection, upon thirty (30) days advance written notice to
all interested persons. Prob 15687.
A trustee is also entitled to reimbursement out of the trust property for expenditures in-
curred in the administration of the trust or for the benefit of the trust (Prob 15684) and the
trustee has an equitable lien on the trust property as against the beneficiary for advances, plus
interest, for the benefit of the trust and for expenses of administration. Prob 15685.
32
A court may also order payment of judgment creditors claims against the beneficiary not
withstanding a restraint on transfer of the beneficiarys interest in the trust. Prob 15306.5, 15307.
33
9 CLASSIFICATION OF TRUSTS,
THE LIVING TRUST, AND
OTHER SPECIAL TRUSTS
34
settlor may not protect himself or herself from claims of his or her own creditors through the
creation of a trust with limiting language of which the settlor is also the beneficiary or over
which the settlor retains a power of revocation. Prob 15304, 18200.
Moreover, (a) claims for spousal or child support for the trust beneficiarys spouse, former
spouse, or minor child; (b) restitution judgments against the beneficiary resulting from felo-
nious conduct by the beneficiary, or (c) liability of the beneficiary for reimbursement for pub-
lic support furnished to the beneficiary or the beneficiarys spouse or minor child may be sat-
isfied from trust principal or interest (notwithstanding restraining language in the trust itself)
either: (1) for present and future payments by court order if the beneficiary has the right un-
der the trust to compel the trustee to pay income or principal to or for the benefit of the bene-
ficiary or (2) for future payments by order of a court, regardless of the beneficiarys power to
direct the trustee. Prob 15305, 15305.5, and 15306.
A court may also order payment of judgment creditors claims against the beneficiary not-
withstanding a restraint on transfer of the beneficiarys interest in the trust. Prob 15306.5, 15307.
35
10 ESTATE PLANNING
AND LONG-TERM CARE
36
11 PERSONAL REPRESENTATIVES:
TYPES, PRE-PROBATE DUTIES,
AND APPOINTMENT
Surviving spouse.
Children.
Grandchildren.
Other issue.
Parents.
Brothers and sisters.
37
Issue of brothers and sisters.
Grandparents.
Issue of grandparents.
Children of a predeceased spouse.
Other issue of a predeceased spouse.
Other next of kin.
Parents of a predeceased spouse.
Issue of parents of a predeceased spouse.
Conservator or guardian of the estate (with qualifications).
Public administrator.
Creditors.
Any other person. Prob 8461.
However, if one with priority fails to claim appointment, the court may appoint any other who
does claim priority for appointment. Prob 8468.
Surviving spouses and relatives have priority only if they are entitled to succeed to some
or all of the estate either directly or through another deceased person, or by will. Prob 8462.
A surviving spouse living separate and apart from the decedent at the time of death who
is a party to an action for dissolution, annulment, or separate maintenance has priority only
next after the brothers and sisters. Prob 8463.
As among those with equal priority, the court may appoint one or more of them and, if they
are unable to agree, the court may appoint the public administrator or a disinterested person
of a lower class. Prob. 8467.
In lieu of himself or herself, one with priority may, in writing, nominate another to act as
administrator. Prob 8465(a). The nominee will have priority equivalent to that of the nomina-
tor (if the nominator is of the class of grandparent or above on the list) but will be chosen next
only after all others of the class of the nominator have declined appointment. Prob 8465(b). If
the nominator is of a lower class, then the court may appoint a person of a class lower than that
of the nominator, rather than appointing the nominee. Prob 8465(c). If the priority of a person
is based solely upon being a creditor, the court may deny the appointment and appoint an-
other, in its discretion. Prob 8466.
A trust company may be appointed as a personal representative in the same manner as an
individual and, if so appointed, may not be required to give a bond. Prob 300, 301.
The court may also appoint a successor personal representative, upon petition with no-
tice and according to the same priorities as the original appointment (Prob 8522), whenever the
office of the personal representative is left vacant by the death, resignation, removal, or other
termination of authority of a personal representative (Prob 8520), and a successor personal rep-
resentative may exercise all of the powers of the personal representatives office. Prob 8524,
8525. During the term of the vacancy, the court may appoint a special administrator. Prob 8523.
Nonresident personal representatives are deemed to have appointed the Secretary of
State, as their attorney permitting service of process and notices upon the Secretary of State on
behalf of the nonresident personal representative, and are required to execute and file with the
court a statement of permanent address and prompt written notification of changes of address.
Prob 8570, et seq.
Prob 8420 identifies those ineligible for appointment as personal representatives, includ-
ing minors, those subject to conservatorship, or nonresidents of the United States.
A personal representative may be removed from office on petition of any interested party on
the ground that the personal representative has wasted, embezzled, mismanaged, or committed
a fraud on the estate, or is about to do so; is incapable of properly executing his or her duties; has
38
wrongfully neglected the estate or has long neglected to perform any act; or must be removed
for the necessary protection of the estate or interested person. Prob 8500, 8502. The court issues
a citation to the personal representative to appear and show cause why the personal representa-
tive should not be removed and, after demur or answer to the petition by the personal represen-
tative and hearing and the taking of evidence, if the court determines that cause exists for re-
moval (and the failure of the personal representative to attend or answer is cause), the court will
remove the personal representative and revoke any letter issued, and appoint a successor per-
sonal representative. Prob 8500-8502, 8520-8525. The court may deny a petition for removal on
the ground that the person seeking appointment has higher priority if the court determines that
the person had knowledge of the prior appointment and an opportunity to contest it and to grant
the petition would be contrary to the sound administration of the estate. Prob 8503.
A personal representative is entitled to compensation according to statute, based upon the
value of the estate, in the same amount as the attorney for the personal representative, as follows:
A personal representative is also entitled to additional compensation in such sums as the court
determines to be just and reasonable for extraordinary services (Prob 10801(a)) and may em-
ploy tax counsel, auditors, accountants, or other tax experts who may be paid from the estate.
Prob 10801(b).
A special administrator is entitled to compensation as well; however, the special adminis-
trator will not be paid until close of the administration of the estate (absent a petition for ear-
lier payment joined in by the general personal representative) and the total compensation paid
to the special administrator and to the general personal representatives cannot exceed the to-
tal sums set forth in Prob 10800 and 10801. Prob 8547(a) and (b).
Search for and Obtain the Will and Other Personal and Business Records
(Hower 379)
One who is a custodian of a will is required to produce that will to the clerk of the Superior
Court of the county in which the estate of the decedent may be administered within thirty (30)
days of learning of the death of the decedent. The custodian must also mail a copy of the will
within the same time period to any executor named in the will if his or her whereabouts are
known to the custodian, or to the beneficiary of the will, if that persons whereabouts are
known to the custodian. Prob 8200(a). The custodian is liable for any damages caused by his
or her failure to act in accordance with the statute. Prob 8200(b).
39
Records and public papers of a notary public must be delivered to the county clerk on the
death of the notary. Gov 8209.
One who holds a key to a safe deposit box in a financial institution where all owners of the
box are deceased may obtain access to the box by providing the financial institution with proof
of the decedents death by producing a copy of a death certificate or written statement of death
by the treating physician, hospital, coroner, or institution where the decedent died, and rea-
sonable proof of the identity of the person seeking access. Prob 331(a) and (b). Access may be
given under the supervision of an officer or employee of the institution for the purpose of mak-
ing an inventory of the contents of the safe deposit box, removing wills and trust instruments
from the box (placing photocopies of the same in the box), and instructions for the disposition
of the decedents remains. All wills shall be delivered to the clerk of the Superior Court and
copies mailed to the executor or beneficiaries, as previously described. Prob 331(d),(e), and (f).
Government officials, public administrators, law enforcement agencies, employers, or the
hospital or institution in which a decedent died may deliver the tangible personal property of
the decedent to the decedents surviving spouse, relative, or conservator or guardian of the es-
tate, unless the person knows of a dispute regarding the right to possession of the property. In
addition, the delivering party must maintain an inventory of the property delivered and the
identity of the recipient for three years. Prob 330.
40
Actions against the sureties on the bond must be brought within four years of the discharge
or removal of the personal representative or within four years from the date the order sur-
charging the personal representative becomes final, whichever is later (Prob 8488(b)), or within
six years from the date of judgment releasing the personal representative and sureties from the
heirs or devisees claims, whichever is later. Prob 7250, 8488(c).
41
42
12 PROBATE AND ESTATE
ADMINISTRATION
As in other areas of practice in California, the Judicial Council (a group appointed to study and
make recommendations for the enhancement of the judicial process) has approved or adopted
standard forms for use in probate matters. Use of approved forms is generally discretionary,
whereas use of adopted forms is mandatory. However, even if a specific form has not been
adopted, its use may be required by local court rule, or local court rule may specify the use of
a particular locally adopted form. If the use of a particular Judicial Council form or of a local
form is not mandatory, office-drafted pleadings may be utilized.
The general rules regarding the procedural aspects of estate administration, petition
process, giving of notice, filing and setting matters for hearing, conduct of hearings and orders,
citations, and so forth, are found at Prob 1000-1265.
If there is no proceeding for the administration of a decedents estate, or if the personal repre-
sentative of the estate has consented, the successor of the decedent (either a devisee under a
43
will or heir, if the decedent dies intestate (Prob 1006)) may collect money, receive tangible per-
sonal property, or have evidences of a debt, obligation, or chose in action (Prob 13100)but not
real property (Prob 13115)by executing and delivering to the holder of the decedents prop-
erty (Prob 13002) an affidavit or declaration stating:
The affidavit or declaration must have a certified copy of the decedents death certificate at-
tached to it and, if the decedents personal representative has consented, a copy of the consent
and the personal representatives letters must also be attached to the affidavit or declaration.
Prob 13101(d) and (e).
If the decedent held evidence of ownership of the property in question, the evidence of
ownership should also be attached. Prob 13102.
If the decedents estate includes real property located in California, an inventory and ap-
praisal by a probate referee must also be attached to the affidavit or declaration. Prob 13103.
The person presenting the affidavit must also provide reasonable proof of his or her iden-
tity to the holder of the property (Prob 13104) who is bound to release the property to the
presenter if the requirements of Prob 13101-13104 are met, and is subject to an action to re-
cover the property and an award of reasonable attorneys fees to the person bringing the ac-
tion if the refusal to deliver the property was unreasonable. Prob 13105. A holder of property
who releases it pursuant to the statutory requirements is discharged of liability with respect
to the property and released of tax liability and may rely in good faith on the statements in
the affidavit or declaration and has no obligation to inquire into the truth of those state-
ments. Prob 13106.
If the obligation sought to be transferred is secured by a lien on real property and an in-
strument creating the lien has been recorded, then the affidavit shall include a recording ref-
erence to the instrument creating the lien, and a notary publics certificate of acknowledgment
identifying each person executing the affidavit or declaration, and the affidavit or declaration,
must be recorded in the office of the county recorder of that county. Prob 13106.5.
44
The successor of the decedent who has received property is personally liable for the debts
of the decedent to the value of the property received (Prob 13109) and is also liable to any per-
son having a superior right to the property by testate or intestate succession, and is liable for
three times the value of the property if the property was fraudulently secured. Prob 13110.
If the decedent was a party to pending litigation, the successor may be substituted in the
litigation in the place of the decedent. Prob 13107.5.
If proceedings for administration of the decedents estate are commenced and, even if the
personal representative has consented to collection by affidavit, the personal representative
may later request that the property be restored to the estate and anyone who received such
property is liable to return it or its fair market value to the estate. Prob 13111.
A notary publics certificate of acknowledgment is required for each person signing the affi-
davit (Prob 13200(b)) and an inventory and appraisal by a probate referee must be attached
(Prob 13200(c)) as well as a certified copy of the death certificate, a copy of the will if claiming
under one and no estate proceeding is pending, and a copy of the personal representatives let-
ters and written consent, if applicable (Prob 13200(d) and (e)), as well as a thirty-five dollar
($35) filing fee. Prob 13201.
The affidavit and attachments are filed with the court clerk, who issues a certified copy of
the affidavit (without attachments), which is recorded in the office of the county recorder
where the real property is located, with the decedent indexed as the grantor and the successor
indexed as the grantee of the title to the real property. Prob 13202.
The successor is personally liable to the extent of the fair market value of the property for
the decedents unsecured debts (Prob 13204), and to any person having a superior right to the
45
property by testate or intestate succession, and for three times the fair market value of the
property if acquired fraudulently. Prob 15205. Any action to impose liability must be brought
within three years of the date of the affidavit or of discovering the fraud, and the limitations
period cannot be tolled for any reason. Prob 15205(c).
Upon the request of the personal representative, the property and the net income received
from it, as well as the balance due to satisfy any encumbrance placed upon the property by the
successor, must be restored to the estate of the decedent, or three times the fair market value
of the property if the successor fraudulently executed or filed the affidavit to succeed to the
property. Prob 13206.
46
decedents estate are commenced, the surviving spouse is liable for the restitution to the dece-
dents estate of the decedents property, or its fair market value, plus any net income received
from the property. Prob 13561, 13562, 13563. However, claims of superior right to the dece-
dents property are barred three years after the death of the decedent and the limitation period
cannot be tolled for any reason. Prob 13561(b).
The surviving spouse is not liable for any debts of the deceased spouse if the property of the
deceased spouse is administered and, if administered, no claim which has not been asserted
within the claims period can be asserted against the surviving spouse. Prob 13552, 13553.
At any time after the death of a spouse, the surviving spouse may collect, by affidavit,
salary or other compensation owed to the deceased spouse in an amount not to exceed five
thousand dollars ($5,000). Prob 13600.
The affidavit or declaration must be furnished to the employer of the decedent, and must
contain:
Payment pursuant to this provision discharges an employer of liability with respect to the com-
pensation paid (Prob 13603), and refusal to pay subjects the employer to an action for the
amount due, as well as reasonable attorneys fees if the court finds the refusal to pay unrea-
sonable. Prob 13604.
47
Notice of hearing on the petition is given to all interested persons and, after determination by
the court, an order is entered identifying and confirming property to the surviving spouse and, if
appropriate, identifying that property which is subject to administration or further notice and pro-
ceedings (such as ownership of an unincorporated business) (Prob 13658). Prob 13655-13659.
48
public administrator takes possession or control of, or is appointed personal representative of,
the decedents estate. Prob 7660.
The public administrator is authorized to receive the property of the decedent, withdraw
deposits, collect debts, sell property, pay expenses and claims, and distribute property to the
beneficiaries of the decedent (Prob 7661-7663); to file with the court, and retain a copy of for
three years, a statement showing the property which came into the control of the public ad-
ministrator and its disposition (Prob 7665); and to receive compensation of not less than $600
for services. Prob 7666.
Persons to whom property is distributed pursuant to these provisions are personally liable
to the extent of the value of the property, less liens and encumbrances, for unsecured debts of
the decedent. Prob 7664.
49
An executor named in a will who, without good cause, does not petition for administra-
tion of the estate within thirty (30) days after knowledge of the decedents death can be held
to have waived the right to appointment as personal representative. Prob 8001.
The petition shall contain:
A photocopy of the will must be attached as well. If holographic, a typed copy of the will is re-
quired as well and, if in a foreign language, an English translation must be attached. Also, if an
executor is named in the will, the petition must state whether the executor consents to or
waives appointment as personal representative. Prob 8002(b).
Arrange for Publication of the Notice of Order for Hearing and Affidavit of
Publication (Hower 411)
Notice must be published in a newspaper of general circulation (published at least once a week
in the city where the decedent resided at the time of death) with the first publication at least
fifteen (15) days before the hearing and publication continuing for three publications (with at
least five days between the first and last publication). The notice shall be captioned in 8-point
or larger type and the body in 7-point or larger type, and publication must be proved prior to
the hearing by an affidavit containing a copy of the notice and specifying the facts regarding
publication. Prob 8120-8125.
50
Mail the Notice of Order for Hearing and Affidavit of Mailing Notice to All
Interested Persons Including Creditors / Mail Notice of Rights to the Spouse
and Minor Children and Prepare an Affidavit of Mailing (Hower 411)
The notice must be mailed or personally served upon each heir of the decedent and each de-
visee or executor named in the will, creditors, or interested public entities. Prob 8110, 8112.
If the will contains a provision for a testamentary trust for charitable purposes (other than
a charitable trust with a designated trustee resident in California), notice must also be given to
the Attorney General. Prob 8111.
If the decedent is a citizen of a foreign country who hasnt named an executor, or property
will pass to a citizen of a foreign country, notice must be given to the recognized diplomatic or
consular official of that country maintaining an office in the United States. Prob 8113.
Hearing on Petition to Prove the Will or Petition for Administration (Hower 416)
At the hearing, the court may take evidence with respect to the date, place, and manner of
death; the place of domicile and residence at the time of death; the character and value of the
decedents property; and whether a will was left. Prob 8005(a). In addition, the court shall es-
tablish the date and place of death; that the decedent was domiciled or left property in this
State; the existence or nonexistence of decedents will; and service and publication of the no-
tice, as required by statute. Prob 8005(b).
A will may be proved upon evidence of one subscribing witness only, which may consist
of an affidavit of the witness to which a copy of the will is attached or contained in the will it-
self. Prob 8220. If a witness is unavailable, the will may be proved by proof of the handwriting
of the testator and either proof of the handwriting of one witness or receipt in evidence of a
writing reciting facts showing due execution of the will either as a writing in the will signed
by all witnesses or an affidavit of a person with personal knowledge of the circumstances of
the execution. Prob 8221.
If a will is contested, the contestant files an objection to probate of the will with the clerk
of court, who issues a summons and a copy of the summons, and objection is served with no-
tice of the petition for administration of the estate on all interested parties. A written response
(answer or demurrer on any of the grounds available in a civil action) to the objection is re-
quired within thirty (30) days of service of the summons. If the demurrer is sustained, the pe-
titioner may have fifteen (15) days within which to amend the objection; if overruled, the re-
spondent may have fifteen (15) days to answer the objection. Prob 8250, 8251. At the trial on
the will contest, the proponents of the will have the burden of proving its due execution, and
the contestants have the burden of proving the grounds for contest, and the subscribing wit-
nesses and/or other evidence shall be produced and examined. If there is a later will purport-
ing to revoke the contested will which has also been petitioned for probate, the court will first
determine whether the later will is entitled to probate. Prob 8252, 8253.
51
Selection of the Personal Representative (Hower 418)
At the hearing, the court shall appoint a personal representative. Prob 8006. The appointment
of the personal representative identified in the petition may be contested as being without pri-
ority or incompetent to serve as personal representative. If another asserts the right to ap-
pointment as personal representative, the contestant must file a petition and serve notice and
the court will hear the two petitions together. Prob 8004.
52
Order Admitting a Foreign Will to Probate (Hower 425)
California has adopted the Uniform International Wills Act (Prob 6380-6390) as well as provi-
sions relating to the probate of nondomiciliary decedents wills upon petition. Prob 12520-12524.
53
Prepare the Inventory (Hower 437)
The personal representative is required to include in the inventory all of the property of the
decedent and to identify, to the extent possible, whether the property is community, quasi-
community, or separate, as well as any debts or demands devised in a will. Prob 8850, 8851.
The personal representative or any interested person may petition the court for issuance of
a citation to any person to answer interrogatories or to appear before the court, or both, con-
cerning the possession or disposition of the decedents property and/or to account for the
same. Prob 8870-8873.
The inventory lists each item separately and the fair market value of the item at the time
of death. Prob 8802.
54
Procedures for Collecting Specific Estate Assets (Hower 442)
A preliminary change in ownership form must be filed (along with a notification of death of
the real property owner) for each piece of real property owned by the decedent at the time of
death, in each county in which real property is located. R&T 480.
Sales of real property, whether private or public, with or without notice, requiring court
confirmation are provided for in Prob 10300, et seq. Notice of sale is generally required, unless
a direction or authority to sell the property is contained in a will. Sale may be public or private
and confirmed by the court. If privately sold, an appraisal is required and the bid is at least 90%
of the appraised value. At the confirmation hearing, the court may confirm the sale on the
submitted bid, or accept new bids for the purchase (the new offer must be at least 10% higher
on the first $10,000 and 5% more on the amount bid in excess of $10,000), or order a new sale.
Sales of personal property are covered in Prob 10250, et seq. Generally, notice of sale is re-
quired either by posting or publication, and sales must be confirmed by the court, unless ex-
empt, after hearing. At the hearing, new bids which are 10% more than the bid at sale may be
made and accepted by the court, or the court may order a new sale.
55
A claim must be supported by the affidavit of the creditor: that it is a just claim; setting
forth the facts supporting the claim, the amount of the claim, and that all offsets and amounts
have been credited; if the claim is not due or contingent or the amount not yet ascertainable,
the facts supporting the claim; and, if not made by the creditor, the reason why the affidavit is
not made by the creditor. Prob 9151(a). The personal representative may also require satisfac-
tory vouchers or proof to support the claim. Prob 9151(b).
If the claim is based on a written instrument, an original or copy of the instrument should
be attached or, if a recorded document, a recording reference provided. Prob 9152.
Claims by public entities are addressed at Prob 9200-9205.
The personal representative either allows or rejects claims in whole or in part, in writing,
setting forth the pertinent information regarding the claim and its rejection or allowance and
informing the creditor, if rejected, that it has three (3) months in which to act on a rejected claim,
and filing the allowance or rejection with the court and giving notice to the creditor of the
same. Prob 9250.
If the personal representative is not authorized to act under the Independent Administra-
tion of Estates Act, all allowed claims must be submitted by the clerk to the court for approval
or rejection and the court may examine the creditor and receive evidence to determine the va-
lidity of the claim prior to endorsing on the claim whether it is approved or rejected by the
court. Prob 9251. The refusal or neglect of the personal representative or judge to allow or re-
ject a claim within thirty (30) days of the filing of the claim may be treated by the creditor as a
rejection of the claim. Prob 9256.
Claims by the personal representative, or the attorney for the personal representative, must
be submitted to the court and, in the courts discretion, may require a petition and noticed
hearing. Prob 9252.
The allowance of a claim may be contested by any interested party. Prob 9254.
Creditors may contest the rejection of claims, in whole or in part, by bringing an action on
the claim. Prob 9255, 9350, et seq.
Claims established by judgment after the death of the decedent are payable as claims in the
ordinary course of administration of the estate, and not pursuant to the Enforcement of Judg-
ments Law (CCP 680.010, et seq.). Prob 9300.
An action pending against the decedent at the time of death cannot be continued and no
recovery is allowed against property of the decedents estate unless a claim is first filed, is re-
jected, and within three (3) months after the rejection the claimant applies to the court in which
the action is pending for substitution of the personal representative for the decedent as a party
in the action. Prob 9370. Similarly, an action cannot be filed against a decedents personal rep-
resentative until a claim has been first filed and rejected, and the applicable statute of limita-
tions is tolled during the pendency of the claim until it is allowed or rejected. Prob 9350-9352.
Debts are to be paid in the following order of priority (except that debts owed to the United
States and this State that have preference under the law shall be given that preference):
Expenses of administration.
Funeral expenses.
Expenses of last illness.
Family allowance.
Wage claims.
Obligations secured by mortgage, deed of trust, or lien.
General debts.
Prob 11420(a).
56
No debts of any class may be paid until all debts of the prior class have been satisfied and, as
between debts of a class, no priority is given and all receive a proportionate share if the estate
is insufficient to satisfy the full amount of all debts of the class. Prob 11420(b).
As soon as there are sufficient funds to cover the costs of administration, funeral expenses,
expenses of last illness, family allowance, and wage claims are to be paid. All other debts are not
required to be paid until ordered by the court. Interest accrues on debts at the legal, or contracted,
rate until paid from the date of order for payment (or as specified by contract). Prob 11421-11423.
File the Final Account and Petition for Settlement and Distribution/Request
Order for Hearing on Final Account and Petition for Distribution (Hower 455)
The personal representative or an interested party may petition for final distribution of the
decedents estate (Prob 11600) when all debts have been paid or provided for, or if the estate is
insolvent, and the estate is in a condition to be closed. Prob 11640.
A final account must be filed when the estate is in a condition to be closed. Prob 10951. An
account must also be filed when it has been more than one year since the issuance of letters, or
more than one year after the filing of the last account, on the petition of an interested person
or the courts own motion, and not more than sixty (60) days after the termination of the per-
sonal representatives authority. Prob 10950. The account must include both a financial state-
ment and report of administration, including (with supporting schedules) a summary state-
ment of the property in all inventories; receipts; gains on sales; acquisitions of property;
disbursements; losses on sales; other dispositions of property; property on hand; and the lia-
bilities of the estate, including creditors claims (whether notice to creditors was given; the
amounts, names, dates of filing and action taken on claims; and claims not paid, satisfied, or
adequately provided for and, if secured, the nature of the security). Prob 10900.
A petition for an order for final distribution of the estate or a report on the status of the
estate must be filed no later than one year (if no federal estate tax return is required) or eight-
een (18) months (if a federal estate tax return is required) after the date of issuance of letters.
Prob 12200.
If the personal representative fails to petition or report within the time limits required, the
court may cite the personal representative and either order the personal representative to file
the petition or order the continued administration of the estate. If the personal representative
fails to comply with that order, the personal representative may be removed from office by the
court. Prob 12202, 12204.
The filing of a final account, and such other accounts as may be required, is governed by
the provisions of Prob 10900, et seq.
57
Prepare and File Copies of Federal and State Estate and Income Tax
Returns with the Final Account (Hower 455)
Required California tax returns may include the final personal income tax return for the dece-
dent, the estate (fiduciary) income tax return, and the California estate tax return.
Compute and File State Inheritance Tax Return or Waiver (Hower 456)
If the estate has a gross value exceeding $400,000, and assets of $100,000 or more will be dis-
tributed to beneficiaries outside of California, a California Income Tax Clearance must be ob-
tained from the California Franchise Tax Board.
58
If the distributed property is subject to a life estate only in the distributee, the personal rep-
resentative must demand and receive an inventory of the property from the distributee, copies
of which are filed with the court and sent to the remainder distributee. Prob 11752.
59
Notice of the hearing on the petition must be given to all interested persons (including the
Attorney General if any portion of the estate is the escheat to the State) and any interested per-
son or person claiming an interest in the decedents estate may appear and file a written state-
ment identifying the claim made or opposing the petition. If a person does not file a statement,
he or she is precluded from further participation in the proceeding, but there is no adverse im-
pact on his or her interest in the estate. The court, after considering the statements and evi-
dence at the hearing, will enter a final order determining the persons entitled to distribution
of the decedents estate and specifying their shares. Prob 11701-11705.
One who feloniously and intentionally kills a decedent is precluded from receiving prop-
erty from the decedents estate, either by testate or intestate succession. Prob 250. Similarly, a
joint tenant who feloniously and intentionally kills his or her co-tenant severs the joint tenancy
relationship so that the share of the decedent passes as the decedents property and there is no
right of survivorship. Prob 251. Named beneficiaries of bonds, life insurance policies, or other
contractual arrangement, or any other person who acquires property or an interest in property
through a felonious and intentional killing of the decedent, also forfeit any right to proceeds
or property resulting from the death of the decedent, and may not bring an action for the
wrongful death of the decedent or benefit from such an action. Prob 252, 253, 258. A final judg-
ment of conviction of felonious and intentional killing is conclusive. Prob 254.
60
61
62
64
65
66
67
68
71
73
74
75
82
83
84
85
86
87
13 INFORMAL PROBATE
ADMINISTRATION
94
NOTICE REQUIREMENTS (HOWER 472)
Notice requirements are as for the petition for appointment of the personal representative pre-
viously described, but must include in substance a statement that:
The petition requests authority to administer the estate under the Independent
Administration of Estates Act. This will avoid the need to obtain court approval for
many actions taken in connection with the estate. However, before taking certain ac-
tions, the personal representative will be required to give notice to interested persons
unless they have waived notice or have consented to the proposed action.
Independent administration authority will be granted unless good cause is shown
why it should not be. Prob 10451.
At the hearing, an interested person may object to appointment. Unless good cause is shown
why the estate should not be administered independently, the court will grant the requested
authority. If good cause is shown, the court may either deny independent administration, or
grant it with only limited authority. Prob 10452.
If the personal representative is granted only limited authority, a bond amount will be
fixed in the sum of the value of the personal property and annual gross income; if granted full
authority, the bond amount will be the foregoing plus the value of any real property in the es-
tate. Prob 10453.
Upon petition by an interested person, notice of the hearing (which is not less than fifteen
(15) days after its filing), for good cause shown the authority of the personal representative,
may be revoked or limited by the court. In either event, the personal administrators letters are
revoked; in the former case, a new personal representative issued a new letter, and in the lat-
ter, new letters are issued to the existing personal representative.
95
Extension, renewal, or modification of the terms of a debt or other obligation of the personal
representative or the attorney for the personal representative owing in favor of the decedent
or the estate.
Prob 10501.
Notice of the following actions may be required under certain circumstances (Prob 10530):
Entering into contracts which cannot be fully performed by their terms within two (2) years,
unless the personal representative has an unrestricted right to terminate the contract within
two (2) years (Prob 10532).
Investing in securities maturing more than one year from the date of investment (Prob 10533).
Continuing as a general partner for more than six (6) months after the date of the first is-
suance of letters (Prob 10534).
Making the first payment of a family allowance or increasing the payment of a family al-
lowance (Prob 10535).
Leasing real property to another for a term in excess of one year (Prob 10536).
Selling or exchanging personal property (except securities generally) (Prob 10537).
Granting an extension of an exclusive right to sell real property to a broker which exceeds 270
days from the date of the first grant (Prob 10538).
Exercising any powers otherwise not requiring court approval under the Probate Code
(Prob 10551).
Allowance, payment, acceptance, rejection, compromise, settlement, or release of any claim
against the estate or the personal representative (Prob 10552).
Commence, maintain, and defend actions (Prob 10553).
Extend, renew, and modify obligations owing to the decedent or estate (Prob 10554).
Transfer or convey property to carry out a granted specific power (Prob 10555).
Pay taxes, assessments, and expenses incurred in administration (Prob 10556).
Purchase annuities (Prob 10557).
96
Exercise options (Prob 10558).
Purchase securities to perform decedents contract of sale (Prob 10559).
Hold securities in the name of a nominee (Prob 10560).
Exercise subscription or conversion rights (Prob 10561).
Repair and improve real and personal property (Prob 10562).
Accept deeds or deeds in trust in lieu of foreclosure (Prob 10563).
Give partial satisfactions or reconveyances under deeds of trust (Prob 10564).
Where notice is required, it must be given to each known devisee or heir, and all who have re-
quested special notice and the Attorney General if any part of the estate may escheat (Prob 10581)
by personal service or mail at least fifteen (15) days prior to the date of the proposed action spec-
ified in the notice (Prob 10586); however, notice need not be given to any who have consented to
the proposed action in writing or who have waived notice in writing either before or after the
proposed action has taken place. Prob 10581-10583.
The notice must specify:
and must contain a form for objecting to the proposed action. If the Judicial Council form of
notice is not used, the notice used must be in substantially the same form as the Judicial Coun-
cil form. Prob 10585.
If a party objects to the proposed action, it must submit its written objection to the personal
representative delivered or received on or before the date of the proposed action in the notice
or the action itself, whichever is later. Prob 10587. Alternatively, an objecting party may seek a
restraining order from the court prohibiting the personal representative from undertaking the
action. Prob 10588. If a party does not object, seek a restraining order, consents, or waives no-
tice, it cannot later seek court review of the proposed action, absent a showing of incapacity
and lack of notice. Prob 10590.
If an action is one for which court supervision would otherwise be required absent the au-
thority granted under the IAEA, the personal representative must seek court supervision. If the
act is one for which no court supervision would otherwise be required, the personal represen-
tative is required to seek court instruction. The personal representative can only undertake the
proposed action in accordance with the terms of the courts order or instruction. Prob 10589.
No action undertaken by the personal representative in violation of the previous provi-
sions is invalid with regard to bona fide purchasers or the rights of third parties dealing in
good faith with the personal representative (and there is no duty to inquire of the personal rep-
resentatives authority or compliance) (Prob 10591); however, the court may itself give the re-
quired notice and the personal representative is subject to removal from office. Prob 10592.
97
98
99
14 TAX CONSIDERATIONS IN
THE ADMINISTRATION OF
ESTATES
100
Creation of Trusts (Hower 499)
Instruments evidencing an intent to create a charitable remainder unitrust or a charitable lead
trust shall be construed to comply with the applicable provisions of the Internal Revenue Code
and in no event shall the fiduciary take an action or have a power that impairs the charitable
deduction. Prob 21540, 21541.
Decedents Final Income Tax Returns, Federal and State (Hower 507)
101
15 ETHICAL PRINCIPLES
RELEVANT TO PRACTICING
LEGAL ASSISTANTS
(HOWER 529)
The discussion in the text is equally applicable to practice principles in California; however,
the licensing and practice of attorneys in California are governed by the provisions of the Cal-
ifornia Business & Professions Code, section 6000, et seq., and the ethical rules are contained
in the California Rules of Professional Conduct, with which the paralegal should be inti-
mately familiar.
In addition, the California paralegal may also be bound by the ethical rules or code of a
professional organization of which he or she may be a member, including national, local, and
statewide associations. The California Alliance of Paralegal Associations, an organization
made up of many local paralegal associations in California, has adopted an ethical code, as
have many of the local associations which make up its membership.
102