Local Rules of Court
San Francisco Superior Court
Rule 14
Rule 14 Probate 14.0 14.1 Organization and Administration. Probate Department Administration. A. The Probate Department is presided over by the Probate Judge with the assistance of the Probate Commissioner and is administered by the Director and Assistant Director of the Probate Examiners and Investigators. B. Telephone numbers for the Probate Department are as follows: Courtroom Clerk: 551-3702; Calendar Clerk: 551-3662; Probate Secretary: 551-3650; the Court Investigators: 551-3657; the status of calendared matters and the information recordings: 551-4000. Obtaining a Hearing Date. Hearing dates are obtained at the time of the submission of a petition and a notice of hearing to the Clerk of the Court. Hearing dates are not given by telephone. Requirement of an Appearance. A. The following matters require appearance of counsel and/or parties at the hearing: 1. Applications for appointment of permanent guardian or conservator. Appearance by proposed appointee, other than a corporate fiduciary, is also required. The minor must also appear if the appointment is for guardian of the person. 2. Termination of guardianship or conservatorship (other than on death of minor or conservatee, or minor attaining majority). Conservatee MUST appear. Minor MUST appear if there is a waiver of accounting. 3. Confirmation of sales of real property. 4. Petition for instructions. 5. Petition for probate of lost or destroyed will. Oral testimony will be taken only when requested by the Court. 6. Petitioner's attorney and proposed beneficiary must appear if the special needs trust waives bond and/or accountings. B. All other matters (except as otherwise provided by law) may ordinarily be submitted without an appearance. Evidence to support such nonappearance matters should be contained in a petition verified by the petitioner and/or declarations under penalty of perjury timely filed before the hearing date.
14.2
14.3
14.4 Hearings re Probate Matters. Petitions for appointment of a conservator are heard on Thursdays at 9:00 a.m., and petitions for appointment of a guardian are heard on Tuesdays at 1:00 p.m., and both require an appearance. All other matters requiring an appearance are heard on Monday, Tuesday, and Wednesday calendars at 9:00 a.m. On the Monday, Tuesday, and Wednesday calendars, sales are heard first. All other matters are ordinarily heard in the following order: uncontested matters followed by contested matters requiring a hearing time of 20 minutes or less. Contested matters requiring a hearing time of more than 20 minutes may be specially set at the time of the scheduled hearing or will be placed on the end of the regular morning calendar if time allows. All interested counsel must be present for a special setting. Hearings requiring more than two Court afternoons will normally be referred to Department 206.
96
Local Rules of Court
San Francisco Superior Court
Rule 14
14.5
Review of Files Prior to Hearing. A. If a matter is unopposed and approved by the Examiner, it will be presented to the Court for signature and no appearance of counsel will be necessary. If the matter is not approved because it fails to satisfy statutory requirements or procedures of the Court, the Examiner will prepare notes setting forth such defects. In order to permit the attorney to address the procedural or statutory deficiencies before the hearing and to avoid the need for an appearance, the Examiner will fax or mail notes to the attorney. The Examiner may continue the matter two (2) weeks or more for compliance. If the non-approval is based on defects other than procedural or statutory or if such defects are not cured, the matter will be put on the appearance calendar. B. Counsel may telephone the rulings line (415-551-4000), visit the court's website (www.sfgov.org/courts) or view tentative rulings on the Court's electronic information center (www.sftc.org) prior to the hearing to determine whether a matter has been approved, continued or placed on the appearance calendar. If a matter has been pre-granted, the calendar posted outside the Courtroom on the day of the hearing will so state. Submission of Proposed Order and Other Pleadings Before Date of Hearing. A. Order. Except in the case of confirmations of sales, orders including orders for appointment of guardian or conservator must be submitted to the probate courtroom at least two (2) weeks in advance of the scheduled hearing date, with the scheduled hearing date noted on the face sheet. Failure to submit the proposed order at least two (2) weeks in advance will result in an automatic continuance for at least two (2) weeks. The proposed order should be prepared on the assumption that the petition will be granted. B. Other Pleadings. In order for supplemental or opposition papers to be considered by the Court prior to the hearing, a courtesy copy of the papers must be delivered to the Examiners five (5) days before the hearing with the scheduled hearing date noted on the face sheet. C. Responses to Examiner's Notes. Responses to Examiner's notes must be filed no later than two (2) days before the hearing and endorsed filed copies delivered to the Examiner. D. Pleadings Must be Filed. Unless otherwise specified, Examiners will not review any document until after it has been filed. Availability of Approved Orders Signed by the Court. Approved orders signed by the Court will be available after 9:30 a.m. on the day of the hearing in Room 103. The Clerk will return endorsed filed copies of orders if a self-addressed, stamped envelope is provided. Continuances. A. Requested by Counsel. Continuances requested by counsel may be made in Court or through the Calendar Clerk (415-551-3662). A continuance will not be granted if there is opposing counsel unless a request is made in open Court or by a
97
14.6
14.7
14.8
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
timely stipulation of all counsel to a date to be arranged with the Courtroom Clerk. 1. If a matter has been specially set, i.e., at any time other than the regular 9:00 a.m. calendar, it may not be continued without the stipulation of counsel and the approval of the Judge or Probate Commissioner scheduled to hear the matter. (For this permission, telephone the Courtroom Clerk.) 2. Probate sales cannot be taken off the calendar or continued except for good cause and appearance of counsel at the time of the hearing is required. Continuances by the Court. When an attorney fails to appear at a hearing, the matter will ordinarily be dropped from the calendar unless a further continuance has been requested. The Court may drop the matter from the calendar where successive continuances have been requested but no satisfactory progress is evident. If the hearing is required and there is no appearance, an Order to Show Cause or a citation may be issued.
14.9 Earlier hearing dates. To obtain a hearing date for a petition other than the hearing date available at the clerk of the court's office, the unfiled petition together with a declaration setting forth good cause and a suggested hearing date may be presented to the probate secretary at the Probate Department, Room 202. 14.10 Hearings before Commissioner. The Commissioner may sit as a temporary judge (Judge Pro Tem) on stipulation of all parties litigant or their counsel. Should any party object to the Commissioner hearing the matter as Judge Pro Tem, the objection must be made at the time the matter is assigned or called for hearing. A failure to object shall be deemed a stipulation that the Commissioner may hear the matter as temporary judge. 14.11 Law and Motion. All law and motion pertaining to probate matters except discovery shall be heard by the Probate Department on Thursdays at 1:30 p.m. Before filing a motion, the moving party must present the motion to the Probate Department clerk in Room 204 for assignment of a hearing date. Moving party must then file the motion and notice in Room 103. After filing, the moving party must bring an endorsed filed copy of the motion and notice to Room 202 directed to the attention of the probate staff attorney. Endorsed filed copies of all subsequent pleadings must be delivered to Room 202, attention staff attorney. All filings and service must comply with the CCP §1005. LRSF Rule 8.3 Tentative Rulings applies to law and motion hearings in the Probate Department. 14.12 Discovery. All motions and other matters concerning discovery in probate proceedings shall be noticed for hearing before a Court Commissioner in the Discovery Department unless the Probate Judge directs otherwise. 14.13 Settlement Conferences. The Judge or Commissioner may schedule settlement conferences as requested by counsel. Appointments may be made with the Courtroom Clerk at 551-3702. 14.14 Settlement Conference Statements. Settlement conference statements are due in the Probate Department five (5) Court days prior to the conference.
98
Local Rules of Court
San Francisco Superior Court
Rule 14
14.15 Will Contests. All will contests, objections to petitions for probate, or petitions for probate filed after the first petition must use the probate case number of the first petition filed in the decedent's estate. 14.16 Compromise of Claims. Petitions for compromise of minor's claims are to be filed and a hearing date set in Department 218 for hearing on the uncontested calendar. 14.17 Ex Parte Matters. (See Appendix D.) A. Setting Petitions on the Ex Parte Calendar. The Probate Department hears an ex parte calendar at designated hours Monday through Friday in Room 202. Petitioners must obtain a hearing date and time by calling the probate secretary at 415-551-3650. Petitioners may not set a hearing more than two weeks in advance. No more than two (2) petitions per day are permitted by each attorney, law office or petitioner. B. Notice. For ex parte petitions requiring appearance (other than petitions for appointment of temporary conservator or guardian; see Rule 14.88C) petitioner must notify all interested or opposing parties by fax or telephone no later than 10:00 a.m. on the day before the scheduled hearing as provided by CRC Rules 3.1203 and 3.1204. Presentation of Ex Parte Petitions Requiring an Appearance. Ex parte C. petitions requiring a personal appearance (other than petitions for appointment of a temporary conservator or guardian) must be filed in the clerk's office. An endorsed filed copy of the petition and a declaration of notice in compliance with CRC Rule 3.1204 must be delivered to the Probate Department no later than 12:00 p.m. on the day before the scheduled hearing. D. Opposition papers to an ex parte petition must also be filed in the clerk's office and an endorsed filed copy delivered to the Probate Department before the ex parte hearing. E. Presentation of Ex Parte Applications Not Requiring an Appearance. Ex parte petitions not requiring a personal appearance may be left in the "Ex Parte InBox" outside the Probate Department or mailed to the Probate Department. If a stamped, self-addressed envelope is provided, conformed copies of the signed order will be mailed to counsel; otherwise, signed orders may be picked up in the office of the Court clerk. F. Contents of Petition. A petition for an ex parte order must be verified and must contain sufficient evidentiary facts to justify issuing the order. Conclusions or statements of ultimate facts are not sufficient and a foundation should be shown for the petitioner's personal knowledge. G. Citations. Where a Court order is required for the issuance of a citation, for example, to remove a personal representative (Probate Code §8500), an endorsed filed copy of the petition setting forth the relief requested, with hearing date affixed, must be submitted together with a separate ex parte petition requesting a Court order allowing the issuance of a citation. A separate order must also be submitted directing the Clerk's Office to issue a citation. Said petition may be submitted ex parte with no appearance required.
99
Local Rules of Court
San Francisco Superior Court
Rule 14
H.
I.
J.
K.
L.
M.
N.
Temporary Restraining Orders/Orders to Show Cause/Orders Shortening Time. All applications for temporary restraining orders, orders to show cause or orders shortening time pertaining to probate matters must be filed and an appointment made prior to presentation to the Probate Department at the ex parte hearing. Special Notice Allegation. All petitions for ex parte orders must contain a statement on special notice. The statement shall either recite that no request is on file and in effect or shall list the parties requesting special notice and have attached the proof of service on such parties or specific waivers of notice. Separate Order Must Accompany Petition. Except where a Judicial Council form is used, a petition for ex parte order must be accompanied by a separate order complete in itself. Ex Parte Orders. An ex parte order may be signed by either the Commissioner or the Judge. If for any reason counsel desires the Judge's signature, then such matter should be presented to the Commissioner for initial review prior to the presentation to the Judge. Order Prescribing Notice. Where an order prescribing notice is required, the petition must allege the names and addresses of all individuals to whom notice should be given and the method suggested. Guardian Ad Litem. Petitions for the appointment of a guardian ad litem in a probate matter may be presented ex parte. Petitions for the appointment of a guardian ad litem in all other matters are to be presented in Department 206. Retention of Litigation Counsel. Where a conservator or guardian of the estate, personal representative, special administrator, temporary conservator or guardian of the estate, or guardian ad litem seeks to retain separate litigation counsel, a petition for authority to enter into a fee agreement with litigation counsel may be presented to the Probate Department ex parte. The proposed fee agreement must be attached to the petition. Proposed contingency fee agreements will not be considered ex parte.
14.18 Procedural Questions. The Court does not answer procedural questions, give legal advice or render advisory opinions either by phone or letter. 14.19 Summary Determination of Disputes (Probate Code §9620). Normally, §9620 summary determination hearings are conducted by the Probate Commissioner sitting as temporary judge pursuant to stipulation. Such matters may be calendared by calling the Courtroom Clerk. 14.20 Forms Approved by Judicial Council. See CRC, Rule 7.101. All two-sided forms must be properly tumbled or they will not be accepted for filing. 14.21 Captions of Pleadings; Identification of Attorney. See CRC, Rule 7.102. All pleadings must also identify the attorney in the form set forth in CRC Rule 2.111 (name, State Bar Number, address, telephone numbers, name and capacity of party for whom appearing, e.g., John Jones, executor). "Petitioner" or "respondent" is not sufficient. Attorneys should also include their fax numbers on all pleadings.
100
Local Rules of Court
San Francisco Superior Court
Rule 14
14.22 Verifying Pleadings. A. An executor, administrator, trustee, guardian or conservator is an officer acting pursuant to Court order. All accounts, petitions and other pleadings made in his or her official capacity must be personally signed and verified. The code provision allowing attorneys to verify certain pleadings in civil matters is not applicable to probate proceedings when the representative is acting in his or her official capacity. An exception is made in the case of an account filed by the attorney for a deceased or absconding fiduciary. B. An unverified petition may be proved by filing a supplemental declaration by petitioner before the hearing. The declaration must identify the petition by caption and filing date. C. Failure to verify where required by statute will result in the matter being continued, going off calendar or being placed on the appearance calendar, depending on the circumstances. 14.23 Amendments, Corrections and Alteration of Pleadings. A. Alterations. Once filed, no pleading may be altered on its face. B. Description of Pleadings. See CRC §§7.101-7.104. C. Correction of an Order. If an order has been signed but not yet filed, it may be corrected on its face and the correction initialed by the Court. However, if the order has been filed it can only be corrected by Court order. Such an order can be obtained by a verified petition, normally ex parte in the case of a clerical error or minor changes. The basis for the correction must be set forth. Before presenting such ex parte application to the Court, informal notice, such as a telephone call or a letter, must be given to the personal representative and any person affected. Proof of compliance with this rule must be presented to the Court before consideration of the petition. The original order is not to be changed by the clerk, but is to be used together with the order correcting it. If an amended order is submitted to correct the filed order, it supersedes the original order. 14.24 Material to be Included in Probate Orders. A. An order must be complete in itself in that it must set forth, with the same particularity required of a judgment in a civil matter, all matters actually passed on by the Court, such as, the date of the hearing, necessary findings, the relief granted, the names of the persons and descriptions of property or amounts of money affected. B. A probate order should be drawn so that its general effect may be determined without reference to the petition on which it is based. Since no matter should appear after the signature of the Court, where exhibits are made part of an order, the Court's signature must appear at the end of the exhibits with an indication to this effect at the end of the order; however, exhibits to orders should be avoided. C. The Court will not sign orders where the last page includes only the signature line. 14.25 Notice Requirements. A. Generally. Notice may not be mailed or published before the filing of a petition. Under the provisions of Probate Code §1202, the Court may require additional
101
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
C.
notice in any matter. Ordinarily, 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, such as, when the status of property is to be determined. The Court may also require a copy of the petition to be served with the notice. Notice to Trust Beneficiaries. If a personal representative presents an account or petition that affects the interest of a beneficiary of a trust and the representative is either named to act or is acting as the sole trustee, then the Court will require notice to beneficiaries as required by Probate Code §1208. In appropriate circumstances the Court may require the appointment of and notice to a guardian ad litem for potential beneficiaries if their interest may diverge significantly from those of the beneficiaries in being. Notice on Termination of Guardianships and Conservatorships. See CRC, Rules 7.1005 and 7.1054. Notice must be given to a former minor or conservatee on the settlement of a final account. Notice must also be given to the personal representative of a deceased minor or conservatee. If there is no representative of the estate, or if the representative of the estate is the same person as the guardian or conservator presenting the account, notice must also be given to the heirs and devisees of the deceased minor or conservatee.
14.26 Giving Notice of Hearing. When notice of hearing is required, whether by personal service, mailing, publication or posting, the burden is on the petitioner to cause such notice to be given and to file the necessary proof of service. When furnished with two copies of the notice, the court clerk will post it as required, but will not mail or furnish proof of mailing or arrange for publication. 14.27 Declaration. A declaration may be used in lieu of an affidavit pursuant to CCP §2015.5. 14.28 Blocked Accounts. When the Court orders funds to be deposited into a blocked account whether for a personal representative, distribution to a minor, conservatorship or guardianship funds, the fiduciary must file the Judicial Council form "Receipt and Acknowledgment of Order for the Deposit of Money into Blocked Account," MC 356, together with the teller receipt of the financial institution. 14.29 Spousal Property Petition. A. Filing Petition. If a spousal property petition is filed with a petition for probate of will or for letters of administration, the spousal property petition must be filed and noticed as a separate petition. B. Required Allegations. 1. Source of Property. The petition must contain precise identification of the source of the property alleged to be community or quasi-community property. An allegation must also be made that none of the property was acquired by gift or inheritance or purchased with funds received by gift or inheritance. If any property is claimed to be community but was acquired by gift, devise, descent, joint tenancy survivorship, or similar means, the petition must state with particularity the way in which the property was converted to community property. For all transmutations of title to real or
102
Local Rules of Court
San Francisco Superior Court
Rule 14
2.
personal property made after January 1, 1985, there must be an express written declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. Claims Based on Document. If the community or quasi-community property claim is based on any document, a copy of the document showing signatures, when feasible, must be attached to the petition. However, if the document is lengthy and only portions of it are relevant to the claim, only the relevant portions need be attached. If it is believed that disclosure of the document would be detrimental, the document or the relevant portions may be paraphrased in the petition accompanied by a statement that a copy of the document itself will be made available to the Court.
14.30 Special Letters of Administration on Ex Parte Petition. A. Presenting Petition. 1. A separate petition for probate must first be on file and a hearing date assigned before a petition for appointment of special administrator will be considered. The petition for appointment of a special administrator must also be filed before its presentation at the ex parte hearing. 2. Counsel and the proposed appointee (other than a corporate fiduciary) must personally present the filed petition to the Probate Department at the appointment made pursuant to LRSF Rule 14.17B. Such petitions ordinarily will not be granted on less than 24 hours telephonic or faxed notice to the surviving spouse, the nominated executor, or any person who, in the opinion of the Court, appears to be entitled to notice. 3. The appearance of the Public Administrator is not required at the presentation of the ex parte petition for Special Letters of Administration. 4. If the petitioner is the named executor of the will, notice of the petition for special letters of administration to the heirs at law is required. If the petitioner is not the named executor of the will, notice must be given to the named executor, the heirs at law and all devisees under the will. 5. A declaration must accompany the petition setting forth to whom notice was given, indicating notification of the time and place of the ex parte hearing, and a statement that notice pursuant to LRSF Rule 14.17A has been complied with. 6. The urgency and necessity of special letters of administration must be stated in the attachment to the petition. 7. Except in the instance of a contest, special letters will issue for only a specified period of time. Although preference is given to the persons entitled to letters testamentary or of administration, if it appears that a bona fide contest exists, the Court will consider the advisability of appointing a neutral person or corporate fiduciary. B. Bond. The Court will usually require a bond even if the will waives bond and the beneficiaries waive bond. Probate Code §8481 (b). 14.31 Probate of Will and Letters of Administration. A. Holographic Will. When a holographic instrument is offered for probate, it must always be accompanied by an exact typewritten copy.
103
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
C. D.
E.
F.
Foreign Language. When an instrument written in a foreign language is offered for probate, it must always be accompanied by a copy translated into English. All translations must be accompanied by a declaration setting forth the translator's qualifications and/or credentials. Copies. Copies of all instruments offered for probate must be attached to the petition. Listing Devisees and Heirs. 1. Even though a decedent died testate, the petition, as in the case of intestacy, must contain the names and relationships of all heirs of the decedent. An heir is any person who would be entitled to distribution of a part of the decedent's estate if the decedent died intestate. This includes those who would be heirs by virtue of Probate Code §6402.5, if the decedent had a predeceased spouse. When second generation heirs are listed, the deceased ancestor through whom they take shall be named and his/her relationship to the decedent shall be stated. 2. All heirs, devisees, or other persons named in the will, and each person named as executor or successor executor must be listed on attachment 9 to the petition. In addition, if the interest of the devisee is contingent as of the date of the petition or on the happening of an event, such as survivorship for a specific period, then the contingent beneficiary must also be listed. Also to be listed is each person provided for in the original will whose legacy has been revoked in a subsequent codicil. 3. The nominated trustee(s) of a trust created by the will or by a living trust should be listed as a devisee. A beneficiary of either a living or testamentary trust is not a devisee and need not be listed unless the personal representative and the trustee are the same person or there is no trustee. The trustee(s) and beneficiaries of the trust must be clearly indicated in item 9 (or on Attachment 9) of the petition. Probate Code §1208. No Known Heirs. If the decedent had no known heirs, a declaration to that effect shall be filed setting forth the basis for that conclusion and the efforts made to locate any heirs. Deceased Devisees and Heirs. 1. If a named devisee or heir predeceased the decedent or did not survive for the designated survival period, that fact must also be stated together with the date of death. 2. If an heir or devisee died after the decedent, that person should be listed with the notation that he or she is deceased and the date of death must be stated. If a personal representative has been appointed, the deceased heir or devisee should be listed in care of the name and address of his or her personal representative. If no personal representative has been appointed that fact should be alleged. All heirs and/or devisees of the deceased beneficiary must be listed.
14.32 Notice Requirements for Petitions For Probate.
104
Local Rules of Court
San Francisco Superior Court
Rule 14
A.
B. C.
D.
E.
F.
G.
Persons to Whom Notice Must be Given. All heirs and devisees listed in the petition, the Attorney General if required under Probate Code §8111, and foreign consul if required under Probate Code §8113 must be given notice. Method of Giving Notice. See CRC, Rule 7.50 et seq. Requirement of Publication of Notice of Petition to Administer Estate. See CRC, Rules 7.53 7.55. It is the responsibility of the attorney to arrange for publication. The Clerk does not have this responsibility. Defective Notice. 1. Publication Correct but Mailing Defective. The hearing will normally be continued to allow enough time for the required new mailing. 2. Mailing Correct but Publication Defective. The matter must be continued or taken off calendar and a new notice must be given by publication and mailing. Original Petition Off Calendar. If the original petition is taken off calendar or an amended petition for probate is filed, a new notice must be published and mailed. A new proposed order must also be submitted. Notice Under Certain Circumstances. 1. Successor Representative. On a petition for appointment of a successor personal representative and for Letters Testamentary or Letters of Administration with the Will Annexed where the will has previously been admitted to probate, no publication of the notice is required. Notice shall be given in the manner provided in Probate Code §8100 et seq. The proper form of notice is the Notice of Petition to Administer Estate. 2. Special Administrators. At a hearing on a contested petition for probate, the Court may appoint a Special Administrator without the submission of a separate petition. Declaration of Real Property. All petitions for probate of will or letters of administration must be accompanied by a form declaration of real property which must be filed in duplicate.
14.33 Proof of Wills. A. In uncontested matters, both witnessed and holographic wills may be proved by declaration without the need for testimony in open court. B. Where more than one testamentary instrument is offered for probate, each instrument must be proved by a separate declaration. 14.34 Lost Wills. Petitions for probate of lost wills must clearly state on their face that the will is lost and both the published and mailed notice must so state. In those cases where there is no copy of the will, the petition for probate must include a written statement of the testamentary words or their substance. Probate Code §8223. Evidence will be required to overcome the presumption of revocation. Probate Code §6124. 14.35 Wills with Interlineations or Deletions. Where the will offered for probate contains alterations by interlineation or deletion on the face, petitioner must obtain court determination of entitlement before final distribution.
105
Local Rules of Court
San Francisco Superior Court
Rule 14
14.36 Proving Foreign Wills. A petition to probate a foreign will must have attached to it a certified copy of the will and the order or decree admitting it to probate outside of this jurisdiction. If the will has been admitted to probate in the United States, the copies referred to need be certified only as correct copies of the Clerk of the Court where admitted. For wills admitted outside the United States, attorneys should refer to the form of certificate acceptable to the Court (the Apostille) discussed in the section entitled "Convention Abolishing the Requirement of Legalization for Foreign Documents" in the Martindale Hubbell law directory. 14.37 Duplicate Wills. If duplicate wills were executed, both documents must be offered for probate despite language in the will to the contrary. 14.38 Renunciations, Declinations and Consents to Act. A written renunciation should be filed by or on behalf of a nominated executor who does not desire to act. Similarly, a written declination should be filed by or on behalf of an individual who is entitled to priority for issuance of letters of administration but does not desire to act. If the necessary renunciation or declination is not filed, the petition should indicate the reason. Where a petition seeks the appointment as personal representative of one or more persons other than the petitioner, a consent to serve as personal representative must be filed for each proposed personal representative. 14.39 Receipt of Statement of Duties and Liabilities of Personal Representative. Before Letters are issued, the personal representative, other than a bank or trust company, shall file an acknowledgment of receipt of a statement of duties and liabilities of the office. Probate Code §8404. San Francisco does not require the personal representative's Social Security or driver's license numbers. 14.40 Hearing Within 30 Days. A written declaration must be filed with the petition for probate if it is requested that the petition be set for a day more than thirty (30) days from the date of filing. 14.41 Amount of Bond for Personal Representative. When full independent powers are requested, bond shall be set pursuant to Probate Code §8482. If the petition for appointment of a personal representative does not show the estimated amount to be protected, a declaration setting forth this information must be filed. 14.42 When Bond of Personal Representative Not Required. Ordinarily, when the verified petition for probate so requests, unless the will requires bond, no bond will be required of the personal representative where the petitioner is the sole beneficiary or, if the will is silent regarding bond, all beneficiaries of the estate waive bond. In an intestate estate, bond will be required unless the proposed personal representative is the sole heir or all heirs waive bond. Where appropriate, counsel should file a declaration to assist the Court. However, the Court in its discretion may require a bond in either of these circumstances. 14.43 Nonresident Personal Representatives. A proposed nonresident personal representative will be required to post a bond to protect California creditors, even if the will waives, or all heirs waive, bond. A declaration or attachment to the petition setting forth in detail
106
Local Rules of Court
San Francisco Superior Court
Rule 14
the anticipated liabilities of the decedent and claims against the estate will be used by the Court to determine the amount of the bond, but in no event will the bond be less than $10,000. 14.44 Bond of Special Administrators. In the case of ex parte appointments of special administrators, the Court will usually require a bond even if the will waives bond and the beneficiaries or heirs waive bond. Probate Code §8481(b). 14.45 Reducing Bond Through Use of Blocked Accounts. When the Court allows a blocked account, a Judicial Council form Receipt and Acknowledgment of Order for the Deposit of Money Into Blocked Account (MC-356) must be filed. A. Before Issuance of Letters. Because of the difficulties of monitoring the issuance of Letters based on orders requiring blocked accounts, the Court discourages the use of blocked accounts on orders for probate and for appointment of a conservator. B. After Appointment. Bonds may be reduced at any time after appointment by a petition and order reducing bond, together with a receipt of a depository showing that assets in the amount of the requested reduction have been so deposited in a blocked account. Such a petition must set forth the assets remaining in the estate, after excluding those held by the depository, and it must appear that the reduced bond adequately covers the amount to be protected. C. Direct Transmittal to Depository. If the assets to be deposited are in the possession of a bank, savings and loan association or trust company other than the named depository, the order should direct the entity in possession to deliver such assets directly to the named depository and further direct the depository, on receiving such assets, to issue its receipt and agreement to the fiduciary. (Fin. Code §765.) D. Withdrawals or Releases from Depository. A Judicial Council form Order for Withdrawal of Funds from Blocked Account (MC-358) may be obtained ex parte. The Petition for Withdrawal of Funds From Blocked Account (MC-357) should set forth the approximate bond, if any, and the purpose for which the withdrawal is being made. The order may provide for funds to be paid directly to a taxing authority or beneficiary or other person entitled thereto. 14.46 Bond Modification. A. See CRC, Rule 7.204. It is the duty of the fiduciary or the fiduciary's attorney, upon becoming aware that the bond is insufficient (e.g., on filing of an inventory or submitting an accounting), to apply immediately for an order increasing the bond. Such application may be made ex parte. An accounting will not be approved until the additional bond is on file. B. When the bond of a fiduciary must be increased, the Court favors filing of an additional bond rather than a substitute bond. When the fiduciary's bond should be decreased, the Court favors using an order reducing the liability on the existing bond rather than a substitute bond. Reduction or cancellation of the bond will not be allowed nunc pro tunc. Where assets will be coming into or passing through the hands of the fiduciary so as to require an increase of bond, the fiduciary must set forth the information necessary to enable the Court to determine the amount of the increase.
107
Local Rules of Court
San Francisco Superior Court
Rule 14
C.
Where a decrease in bond is sought because distribution has been made, copies of receipts evidencing the distribution should be presented with the petition.
14.47 Bond of Successor Trustee. The Court will require a bond of all successor trustees not named in the trust instrument unless all beneficiaries and remainder persons waive bond. The assets on hand must be listed with the fair market value to allow the Court to set the bond. 14.48 Bonds of Co-Fiduciaries. See CRC, Rules 7.202 and 7.203. The names of all fiduciaries must be on the bond. Upon resignation or removal of one fiduciary, a new bond must issue in the name or names of the remaining fiduciaries. 14.49 Bond on Change in Capacity of Fiduciary. When the Court requires a bond of a special administrator or a temporary conservator and a bond is required on that same person's permanent appointment, a new bond is required. 14.50 Request for Appointment of Referee. To obtain appointment of a referee, the San Francisco form, Request for Appointment of Referee, together with the original and one copy of the proposed Order Appointing Referee upon which the name of the referee has been left blank, should be submitted to the Clerk of the Court together with a stamped, self addressed return envelope. (San Francisco does not use the Order for Probate to appoint a referee.) Local forms are available online at www.sfgov.org/courts. 14.51 Preparing Inventory and Appraisal. The Inventory and Appraisal for a decedent's estate is due within four months after Letters are issued. The California Probate Referee's Association has published a pamphlet, Probate Referee's Procedures Guide, describing its suggested form for listing various inventory assets as well as its opinion as to whether particular assets should be listed on attachment 1 or 2. Although not an official publication, this pamphlet is a good reference. 14.52 Sufficiency of Bond. If there is a bond in force, the Inventory and Appraisal must disclose on its face whether the amount thereof is sufficient or insufficient. 14.53 Waiver of Appointment of Referee. The appointment of a probate referee may be waived only for "good cause" under Probate Code §8903, et seq. The decision whether good cause exists will be made by the Court on the basis of the facts set forth in the petition. The petition, including a copy of the proposed Inventory and Appraisal, and notice of hearing shall be served on all persons who are entitled to notice pursuant to Probate Code §8903. The petition must state the source of the values included in the Inventory and Appraisal. Waivers of appointment are not favored and are not routinely granted. 14.54 Notice to Creditors. A. Notice to Unknown Creditors. Notice must be published in accordance with Probate Code §§8100-8125. B. Notice to Known or Reasonably Ascertainable Creditors. If a personal representative has knowledge of a creditor of the decedent, the personal representative must give notice of administration of the estate to the creditor. Probate Code §9050(a). (Judicial Council Form DE-157.) The notice must be
108
Local Rules of Court
San Francisco Superior Court
Rule 14
given as provided in Probate Code §1215 in addition to the publication of the notice under Probate Code §8120. A personal representative has knowledge of a creditor of the decedent if the personal representative is aware that the creditor has demanded payment from the decedent or the estate. Probate Code §9050. 14.55 Nature and Form of Claims. A. Claim Versus Expense of Administration. The Court will not approve claims which represent obligations of the estate arising after the death of the decedent (except reasonable funeral expense). Such expenses are properly expenses of administration, not creditors claims and should be included for approval in the account. B. Form of Claims. Creditors claims should be submitted on Judicial Council forms; however, the creditors claims will be liberally construed in favor of their sufficiency if the content and format are in substantial compliance with the Probate Code. Satisfactory vouchers or proof of claim shall be attached. C. Claims when personal representative has IAEA powers. See CRC, Rule 7.402. 14.56 Claims Filed with Clerk and Mailed to Personal Representative. Creditors must file their claims with the Clerk of the Court and mail a copy to the personal representative (Probate Code §9150). The disposition of such claims must be reported to the Court prior to any distribution. 14.57 Payment of Interest on Funeral and Interment Claims. When interest has been paid in connection with the delayed payment of a claim for reasonable cost of funeral expenses, a specific allegation must be made in the report accompanying the account in which the credit for such payment has been taken, setting forth reasons for the delay in payment. The personal representative may be surcharged the amount of the interest where the delay in payment of the claim is not justified. 14.58 Claims of Personal Representative and Attorneys. A. Procedure. A creditor's claim of the personal representative or attorney should be noted as such. Such a claim must be processed as provided in Probate Code §9252, notwithstanding authority to act under IAEA. When there is more than one personal representative, a creditor's claim submitted by one of the personal representatives must be approved by the other(s) before submittal to the Court for approval. B. Ex Parte Approval of Claims. Creditors claims of the personal representative or attorney for less than $2,500 may be submitted on an ex parte basis pursuant to Probate Code §9252(a). Creditors claims of personal representatives or the attorney for over $2,500 will not be approved by the Court until either a hearing has been held or written consent of the beneficiaries is on file. Such hearing should be held as set forth in Probate Code §9252(a) and notice thereof given to all persons entitled thereto including all residuary beneficiaries, together with a copy of the claim. 14.59 Waiver of Formal Defects in Claim Form. A personal representative may waive formal defects if a creditor makes a written demand for payment within four months after the
109
Local Rules of Court
San Francisco Superior Court
Rule 14
date letters are first issued and pays the claim within thirty (30) days after the four-month period if the debt was justly due, paid in good faith and the estate is solvent. Probate Code §9154. 14.60 Judicial Approval. Judicial approval of sales or exchanges of real or personal property is not required in estates being administered pursuant to the IAEA with full authority. Confirmation is still required in other estates and a personal representative acting with full IAEA may return a sale for confirmation at his or her discretion. 14.61 Time and Place of Hearing. Hearings on confirmation of sales of both real and personal property are held at 9:00 a.m. every Monday, Tuesday and Wednesday, and are the first matters called. 14.62 Exclusive Listing for Sale of Property. See CRC, Rule 7.453. Probate Code §10538 is authority for a personal representative acting under IAEA to enter into an exclusive agreement to sell real property without prior Court approval. If Court confirmation is sought, either because of limited IAEA or pursuant to the agreement of sale, at the hearing on the confirmation of the sale, the Court will determine the total commission (without regard to the terms of the exclusive agreement). If an exclusive listing for sale of real property is sought by a personal representative not acting under IAEA, an application for authority to enter into an exclusive listing may be presented ex parte. A copy of the agreement for the exclusive listing must be attached. The petition must set forth the agent/broker's name, his or her experience with sales of real property in the area of the subject property and a description of the specific properties to be sold. 14.63 Tangible Personal Property (Probate Code §10250, et seq.). A. Necessity for Appraisal. For estates subject to the IAEA, sales of personal property may be made without Court approval. In all other cases, the sale of tangible personal property will ordinarily not be approved unless the property has been appraised. For this purpose, a partial inventory and appraisal may be obtained from the appointed probate referee. B. Commissions. Commissions on sales of tangible personal property will be allowed only to individuals holding a license authorizing them to deal in the type of property involved. A commission will be allowed on the original bid only when the commission is requested in the return of sale. When there is an overbid in Court, a commission may be allowed to the successful broker and, if the original bid was subject to the commission, apportionment between the brokers will be made according to the same rules as prescribed for real estate sales. The amount of the commission is within the Court's discretion. 14.64 Securities. Where a personal representative is proceeding under Probate Code §10200, the petition for authority to sell must set forth a minimum sales price as to all securities except those listed on an exchange. The minimum price must be a recent market quotation from the over the counter market, or, if there is no recent market quotation available or the securities are closely held, the petition must set forth the basis for fixing the minimum sales price. 14.65 Condominiums, Community or Cooperative Apartments. A. A condominium or cooperative apartment is an interest in real property and must be sold as such, unless it is held as a limited partnership. (Civil Code §783)
110
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
The sale of a cooperative apartment will not be confirmed subject to the original (returned) purchaser later obtaining the acceptance of a Board of Directors or other governing body. If there is an overbid, the Court, at the request of the personal representative, will then continue the matter for the purpose of obtaining acceptance. If the personal representative does not wish to continue the matter for this purpose, the Court will not accept the overbid.
14.66 Publication of Notice of Intention to Sell Real Property. A. Procedure. Notice of intention to sell real property must be published pursuant to Government Code §6063(a) in decedents' estates except for estates in which there is a power of sale in the will. Publication must be in a newspaper published in the county in which the real property lies. B. Contents and Purpose of Notice. The notice should include the date and place of sale (not the date of the confirmation hearing). The published notice is a solicitation for offers. No offer can be accepted until the date on or after the time for making bids expires. The notice should contain the street address or other common designation of the property, or if there is none, the legal description of the property. If an exclusive listing has been given, the notice should so state. If the property is to be sold subject to an encumbrance, the notice should so state. If the property is to be sold for cash only, the notice must so state. If the estate would prefer all cash but will accept part cash and part credit, the notice should include the following language: "All cash, or part cash and part credit, the terms and conditions of credit as are acceptable to the fiduciary and the Court." See Probate Code §10300 et seq. Effect of Notice. Any offer accepted and returned to Court for confirmation cannot be at variance with the terms of the sale contained in the notice.
C.
14.67 Return of Private Sale for Court Confirmation. A. Appraisal and Reappraisal. In order for a private sale to be confirmed, there must be on file an appraisal of the property and a reappraisal for purposes of sale if the decedent's date of death or guardian's or conservator's appointment occurred more than one year before the date of the confirmation hearing. The appraisal and reappraisal should be on file PRIOR to the hearing date on the return of sale. B. Market Exposure of the Property. Whenever it is brought to the attention of the Court that the fiduciary has denied bona fide prospective buyers or their brokers a reasonable opportunity to inspect the property, the returned sale will not be confirmed, and the sale will be continued to allow inspection. C. Second Deeds of Trust. The Court will approve the taking of a promissory note secured by a junior deed of trust upon a showing that it serves the best interests of the estate. D. Hearing on Return of Sale and Overbids. Counsel must be prepared to state the minimum necessary overbid, computed at the rate of ten percent (10%) of the first $10,000, and five percent (5%) on the balance of the sale price. Counsel should inform the original bidder and his or her agent of the time and place of hearing and advise that they be in court for the hearing.
111
Local Rules of Court
San Francisco Superior Court
Rule 14
If the sale returned to the Court for confirmation is for cash and the higher offer made to the Court pursuant to Probate Code §10311 is upon credit, the offer shall be considered only if the personal representative prior to the confirmation of sale informs the Court in person or by counsel that the offer is acceptable. If the sale returned to the Court for confirmation is upon credit and a higher offer is made for either cash or credit, whether on the same or different credit terms, the offer shall be considered only if the personal representative prior to the confirmation informs the Court in person or by counsel that the offer is acceptable. Earnest Money Deposit by Increase Bidder. When a sale is confirmed to an overbidder, the overbidder must submit at the time of the hearing a certified or cashier's check in the amount of ten percent (10%) of the overbid amount. Overbid Form. The Courtroom Clerk will give counsel a form to be completed on the overbid. This form is to be returned to the Clerk before the end of that morning's probate hearings. Bond. The petition for confirmation of sale of real estate should set forth the amount of the bond in force at the time of the sale and the amount of property in the estate which should be covered by bond. If additional bond is required after confirmation of sale of real property, the petitioner should provide sufficient information for the Court to determine the net proceeds of sale and the amount of the required additional bond. If no additional bond is required or if bond is waived, that fact should be alleged. Blocked accounts will not be accepted in lieu of the additional bond required. Absence of Attorney for Estate at Confirmation Hearing. If someone is present who wishes to overbid and the estate's attorney is absent from the hearing, the hearing will be continued, except where the fiduciary is present and requests that the sale proceed without the attorney. Continuances. Sale confirmations will be continued only under exceptional circumstances and the motion for continuance must be made in open court at the time set for the sale. Partial Interest. Where the estate has a partial interest in real property, all information in the petition should refer ONLY to the partial interest, including the overbid amount. If the additional interest is also being sold, the total bid necessary should be announced in open court.
E.
F.
G.
H.
I.
J.
14.68 Broker's Commissions (Probate Code §§10161-10166). A. Improved Property. The Court will ordinarily allow a broker's commission not to exceed six percent (6%) of the sale price. It is understood that commissions are negotiable and the parties may agree to a lesser percentage. B. Unimproved Property. The Court will ordinarily allow a broker's commission not to exceed ten percent (10%) of the sale price. In each instance, the Court will determine what is unimproved property. C. Order Must Show Commission Allocation. The order confirming sale must show the total commissions allowed and any allocation agreed on between the brokers. (For examples of allocation of commissions, see appendix B.)
112
Local Rules of Court
San Francisco Superior Court
Rule 14
D.
E.
F.
Commission Rates of Property Sites Will Apply. Where the property is not located in San Francisco County, the Court will allow commissions based on the San Francisco Probate Department schedules unless it is shown that a larger commission would be allowed based on the schedule in effect in the Probate Department of the county in which the property is located. Commissions in Excess of Schedules. A commission exceeding the normal schedule will be allowed only if the Court determines that there are special circumstances and that it is reasonable. The written agreement of the affected beneficiaries to the allowance of such commission should be obtained and presented at the hearing. Broker Bidding for Own Account Not Entitled to a Commission. A broker bidding for his own account is not entitled to receive or share in a commission. Estate of Toy (1977) 72 Cal.App.3d 392.
14.69 Broker's Commissions in Overbid Situations. A. Only Original Bidder Represented by Broker. When the original bidder is represented by a broker and the successful overbidder is not, the original broker is allowed a full commission on the amount of the original bid returned. Probate Code §10164(b). B. Where Overbidder Represented by Broker. The overbidder's broker receives a full commission on the overbid price confirmed by the Court, reduced by one half (½) the commission on the original bid, which latter commission will be split equally between the original bidder's broker and any listing broker involved in the sale. Over bidder's commission is limited by Probate Code §10162 to half the difference between the successful overbid and the returned bid if the original bidder is not represented by a broker. Original Bidder as Overbidder. Once a net bid has been overbid in court, the C. original bidder may elect to be represented by a broker in further bidding. 14.70 Accounts. All accounts filed in probate proceedings, which include guardianship, conservatorship, and trust accounts, must be typewritten and must conform to Probate Code §1060 et seq. An account must be accompanied by a report of administration. The account must state the period covered by the account. A personal representative's account must begin with the date of death of the decedent. 14.71 Summary of Account Form. The account must contain a summary in the following form:
SUMMARY OF ACCOUNT CHARGES Amount of Inventory and Appraisal (or if subsequent account, amount chargeable from previous account)_____________
113
Local Rules of Court
San Francisco Superior Court
Rule 14
Receipts during account period other than Principal (Schedule A) _____________ Gains on Sales (Schedule B)_____________ Total Charges:_____________ CREDITS Disbursements during account period (Schedule C)_____________ Losses on Sales (Schedule D)_____________ Other Credits (Schedule E), e.g., property distributed, homestead or other property set apart) _____________ Property on Hand (Schedule F)_____________ Total Credits:_____________ 14.72 Contents of Account. Court accountings are cash, not accrual, basis. The summary must be supported by detailed schedules. The schedules of receipts and disbursements must show the nature or purpose of each item, the source of the receipt or the name of the payee, and the date thereof. Individual fiduciaries may not include transfers between accounts as they are not proper receipts or disbursements and should NOT be included. The schedule of property on hand must describe each item and the carrying value with a separate schedule setting forth the appraised value. 14.73 Reporting Income and Principal. When any part of the estate is to be distributed to a trustee of a testamentary trust, and the accumulated net income is to be paid over by the trustee to the trust beneficiaries, the account must allocate receipts and disbursements between principal and income and the amount of net income set forth. 14.74 Verification of Cash Balances. The ending balance of cash in interim and final accounts filed by individual fiduciaries must be verified. Verification is made by original bank or brokerage statements or original bank letters signed by a bank officer with the authority to sign, showing the vesting of the account, and the date and the amount of the balance. Photocopies are not acceptable. Balances shown in the account must be reconciled to the letters or statements which must be attached as exhibits to the account. Private professional or licensed guardians or conservators shall continue to file only the original account statements showing the beginning balance of the first account and the ending balance of all accounts and lodge all other original account statements by submitting the statements to Room 202 of the Civic Center Courthouse in an envelope clearly marked on the outside with the case number, name of the conservatorship or guardianship, and the date the matter is on calendar. If a stamped, self-addressed envelope is included with the lodged documents, they will be returned to the fiduciary when the court's determination of the guardian's or conservator's account has become final. 14.75 Allegations re Sufficiency of Bond. Sufficiency of bond must be addressed in all interim accounts. Where bond has been posted, there must be an allegation as to the total bond posted, the fair market value of personal property on hand at the close of the account period plus
114
Local Rules of Court
San Francisco Superior Court
Rule 14
an estimated annual gross income from the real and personal property and any additional bond thereby required. (Probate Code §8482) 14.76 Trustee's First Account. The starting balance of a testamentary trustee's first account must conform to the trustee's receipt(s) filed on distribution of the assets of the decedent's probate estate. The petition for settlement of a trustee's account must include the names of beneficiaries and remainder persons and set forth the trust provisions for distribution of principal and income. 14.77 Waiver of Accounting on Final Distribution. A. When Permissible. Waiver of accounting is permitted under Probate Code §10954 when each person entitled to distribution files either a written waiver of accounting or a written acknowledgment that the distributee has already received that to which he/she is entitled. A beneficiary of a specific cash bequest or nonincome producing assets ordinarily need not execute a waiver of the accounting. B. Effect of the Waiver. See CRC, Rule 7.550. Waiver by Trustee. A testamentary trustee who waives the accounting of the C. personal representative must have filed a consent to act as trustee. (Probate Code §10954(b)(4).) Even though there is a waiver of accounting by the trustee, if the net probate income is to be paid by the trustee to the trust beneficiaries, the net probate income must be specified. 14.78 Specifically Devised Realty. Unless waived, a separate accounting for specifically devised real property is required. Such account shall set forth the income received from such real property and expenses allocable to it (e.g., taxes, maintenance, repairs, insurance, debt service). For apportionment of income and expenses see Probate Code §12002 (c)(d). 14.79 Reports and Petitions for Distribution. Preliminary Distribution Under Probate Code §11620. In addition to the A. requirements contained elsewhere in this chapter, the petition for preliminary distribution must state the approximate value of the property remaining in the estate after the proposed distribution and an estimate of the total amount of unpaid taxes, unpaid claims and other liabilities. An inventory and appraisal which includes the property to be distributed must be on file. B. Ex Parte Petition for Preliminary Distribution Under Probate Code §11623. Absent an emergency, preliminary distributions should be set for hearing. Probate Code §11623 provides for an ex parte petition for preliminary distribution. The urgency justifying such an ex parte application must be set forth. C. Allegation re Character of Assets. In all cases where the character of the property may affect distribution, whether the decedent died testate or intestate, the petition for distribution must contain an allegation as to the separate or community character of the property. D. Agreements for Distribution of Assets and Disclaimers. If distribution is to be other than according to the terms of the Will or the laws of intestate succession, there must be a written agreement on file executed under penalty of perjury and signed by all parties affected by the distribution. If there is a disclaimer on file, property will be distributed in accordance with Probate Code §282.
115
Local Rules of Court
San Francisco Superior Court
Rule 14
E.
F.
G.
H.
I.
J.
K.
L.
Assignment of Assets. (Probate Code §11604) If distribution is to be made to an assignee of an heir or devisee, the original assignment and the terms thereof must be on file. Distribution to Persons under Conservatorship or Guardianship. The decree should provide for distribution of the property to the minor or the conservatee rather than to the guardian or conservator, but must provide that actual payment or delivery be made to the guardian or conservator. Distribution to Minors. 1. Where delivery of the assets is to be made to the minor's parent pursuant to Probate Code §3401, the declaration by the parent complying with the provisions of that section must be on file before the hearing date. 2. Where a blocked account is to be used, the receipt and agreement of the depository must be filed and the decree of distribution shall so provide. The decree shall direct distribution of the minor's funds to a specific depository, including its location, in the name of the minor and shall state that the funds cannot be withdrawn without Court order. Distribution to Trustee. If distribution is to a trustee who is not the personal representative, the consent of the nominated trustee to act must be on file prior to the hearing on the petition for distribution to the trustee. A written declination should be filed by or on behalf of the trustee who does not choose to act. The decree must contain the terms of the testamentary trust. Distribution to Representative of Deceased Heir or Beneficiary. When an heir or beneficiary dies during the administration of an estate and survives any survival period stated in the will, the decree should provide for distribution to the named personal representative of the estate of the heir or beneficiary (Probate Code §§11801-11802) or, where applicable, to the person(s) entitled thereto under Probate Code §13100 or 13500. Counsel must file a copy of Letters certified within 60 days, the original 13100 affidavit or a certified copy of the Spousal Property Order before the hearing date. Distribution to Intestate Heirs. The relationship of heirs who take by intestacy should be sufficiently described in the petition for distribution to permit the Court to determine whether the laws of intestate succession have been properly applied. If an heir takes by right of representation, the petition must indicate the parentage and the approximate date of the parent's death. Blood relationships and their degrees of kindred are shown in Appendix A. Interest on General Pecuniary Legacies. The Court will strictly enforce the policy set forth in Probate Code §12003 and will order payment of interest at the statutory rate on all general pecuniary legacies not paid within one year from the date of decedent's death unless payment of interest is waived in the will. Probate Code §12001 sets the rate of interest. Attorneys are responsible for determining the correct rate. The order must state the date from which interest will be paid and that interest runs to the date of distribution. Requirements re Petition for Final Distribution. 1. Allegations re Creditors' Claims. The petition for final distribution (whether or not on waiver of accounting and whether or not the personal representative is acting under IAEA) must list all creditors' claims presented to the personal representative (even if not filed with the Court)
116
Local Rules of Court
San Francisco Superior Court
Rule 14
2.
3.
4.
5.
6.
7.
and indicate the disposition of each claim, the name of the claimant and the amount paid. If any claim has been rejected, the date of service of notice of rejection must be stated, as well as its disposition, whether by lawsuit or otherwise. The petition must also state that the time for filing claims has expired and that all known or reasonably ascertainable creditors of the estate described in Probate Code §9050 received notice described in Probate Code §9052 or are within the class of creditors described in Probate Code §9054. This information must be set forth in the petition for final distribution even though it may have been presented to the Court in whole or in part in prior accountings or petitions for distribution. Allegations Relating to Independent Acts. The petition must list and describe all independent acts taken without prior Court approval and if notice of the proposed action was required, the petition must contain an allegation that the notice period for the advice of proposed action was met or waived and no objections were received. The originals of the advice of proposed actions with attached declarations of mailing must be available but need not be filed with the Court. If certain acts have been properly reported in a prior petition for distribution (which was approved) they need not be repeated. Payment of Taxes. The petition for final distribution must address the question of the source of the payment of the federal estate tax and California estate tax, if any. If the will has a clause directing the payment of the taxes out of the residue of the estate, this should be alleged. If, on the other hand, there is no tax clause or there is a tax clause which does not direct the source of the payment, the amounts required to be prorated or charged must be stated. The final account must show the computation and the order for final distribution must show the proration. The caption of the petition, notice and decree must indicate the death taxes are prorated. Retention of a Reserve. The decree of final distribution must specifically set forth the use that may be made of the retained funds (e.g., income taxes, closing costs, property tax assessments, etc.). The application for final discharge must show the disposition of all amounts held in reserve and receipts must be filed for any distribution. Franchise Tax Board Clearance. On the filings of a final account or report, if the estate exceeds $1,000,000 at the date of death and if $250,000 or more is distributable to nonresident beneficiaries, the certificate of the California Franchise Tax Board required by Revenue and Taxation Code §19513 must be on file. California Inheritance Tax. In Inheritance Tax Report and Order Fixing Tax must be filed prior to final distribution in estates where the decedent died prior to June 8, 1982. Election of Surviving Spouse to Administer. If the surviving spouse elects to probate assets that are distributable directly to him/her, the surviving spouse must file a statement that he/she has been fully informed about the reasons for a probate (rather than, e.g., a Spousal Property
117
Local Rules of Court
San Francisco Superior Court
Rule 14
8.
9.
10.
Petition) and the consequences thereof, including potential delay and increased fees. Allegations re Health Care Benefits. The first report of administration of a decedent's estate must contain allegations either that notice of decedent's death has been provided to the Director of Health Services required by Probate Code §9202 and 215 and that four months have elapsed since the notice was sent or that no such notice is required. This notice is required if decedent or his/her predeceased spouse received MediCal benefits. In General. a. A petition for final distribution, whether or not an account is waived, must list assets on hand and list and describe the property to be distributed, either in the body of the petition, or by a schedule in the accounting, or in a separate exhibit incorporated in the petition by reference. Description by reference to the inventory is insufficient. Real property must be described by legal description. b. The petition for final distribution must state specifically how the estate is to be distributed. A general allegation that distribution is "in accordance with the terms of the will" or "in accordance with the laws of intestate succession" is insufficient. c. When the petition seeks a non-pro rata distribution, it must show the computation on which the proposed distribution is based. Consents of interested beneficiaries must be filed. d. Whether or not an accounting has been waived, the decree of distribution must set forth specifically the manner in which the estate is to be distributed by showing the distributee's name and a description of the property, including the legal description of real property, and the amount of cash (as of a date certain) to be distributed. This must be in the body of the decree. Mere reference to allegations in the petition is insufficient and not acceptable to the Court. Schedules attached to the decree are also unacceptable. e. The decree should provide that the savings institution or other depository holding blocked funds belonging to the estate draw checks payable to the named distributees. Funds held in blocked accounts in lieu of bond will not be released to the personal representative for distribution. f. Receipts for any preliminary distribution must be on file prior to the approval of final distribution. Graduated filing fee. See CRC, Rule 7.552. A final account or report filed in every decedent's estate proceeding commenced on or after August 18, 2003, must include a separate schedule disclosing the graduated filing fee information. If the estimated filing fee was less than the corrected filing fee, San Francisco requires a separate declaration alleging that the difference has been paid.
14.80 Family Allowance (Probate Code §§ 6540-6545).
118
Local Rules of Court
San Francisco Superior Court
Rule 14
A.
B.
C.
D.
E.
Necessary Allegations of Petition. All petitions for family allowance must state facts to show that the allowance prayed for is necessary and reasonable, including: 1. the nature and separate or community character of the probate estate and whether or not it is solvent; 2. whether others are entitled to a family allowance; 3. the approximate needs of the applicant, with reference to his or her standard of living; and 4. the applicant's income from other sources. Duration of Family Allowance. All orders will limit family allowance to a definite period of time. If the order is on an ex parte petition, family allowance will normally not be granted for a period exceeding six months. Probate Code §6540(a). Before an inventory is filed, an order for family allowance under Probate Code §6540(a) may be made or modified ex parte or on noticed hearing; after an inventory is filed, such an order may be modified only on noticed hearing, as provided by Probate Code §6541(b). Probate Code §6540(b). An order for a family allowance under Probate Code §6540(b) may be made or modified only on noticed hearing as provided by Probate Code §6541(c). Income and Expense Declaration. If a petition for family allowance is contested, the petitioner must file an income and expense declaration prior to the hearing. (Judicial Council Form FL-150.)
14.81 Borrowing Money (Probate Code §§9800-9807). A. Inventory Must Show Security. If the loan is to be secured, an inventory describing the security must be on file prior to the hearing. B. Bond Requirements. The petition under Probate Code §9802 must state whether the personal representative is serving with or without bond. If with bond, the Court must be advised in the petition, by supplemental declarations filed before the hearing or by testimony at the hearing as to the necessity for an increase in bond. 14.82 Operating a Business (Probate Code §9760). The petition must show the advantage to the estate and the benefit to the interested persons of the order requested. Notice of the hearing must be given as provided in Probate Code §1220. 14.83 Determining Title to Real Property or Personal Property (Probate Code §850). The Court requires that all notices of hearing given under Probate Code §851 must contain a description of the property sufficient to give adequate notice to any party who might be interested in the property, including with respect to real property, the street address or, if none, an indication of its location. 14.84 Substitution or Withdrawal of Attorney. If an attorney wishes to withdraw from a probate proceeding as the attorney of record, the attorney may do so by filing a noticed motion in the probate department or by filing a substitution of attorneys. Substitution of the personal representative or the conservator or guardian, in pro per, will require a noticed motion and appearance. Notice to a bonding company, if any, is required.
119
Local Rules of Court
San Francisco Superior Court
Rule 14
14.85 Petition for Instructions. A petition for instructions is only available when no other different procedure is provided by statute. For example, the Court will not determine how a will should be interpreted or the manner in which an estate should be distributed on a petition for instructions. Such direction can only be obtained by a petition for distribution or by a petition for determination of persons entitled to distribution, Probate Code §11600 et seq., and §11700 et seq. 14.86 Obtaining Final Discharge. Counsel or self-represented parties must submit Judicial Council Form DE-295 with endorsed filed copies of receipts attached. In the case of real property, the personal representative must file a statement that identifies the date and place or location of the recording of the decree of final distribution and other appropriate recording information. If funds have been retained in reserve, the application for final discharge must show the disposition of all funds, and receipts. The Court at its discretion may require a supplemental account of the reserve. The order portion should be completed in full except for the date and name of the Judge. 14.87 Proceedings to Establish Fact of Death (Probate Code §§200-204). A. Filing Under Name of Decedent. A petition to establish the fact of death must be filed in the name of the deceased person whose interest is to be terminated. B. Separate Petition Preferred. Although Probate Code §202(b) authorizes a petition to establish the fact of death to be included in a verified petition for probate of will or for letters of administration, attorneys are requested to file the petition as a separate petition. C. Description of Property. If the property affected is realty, a copy of the document showing the decedent's interest must be attached to the petition and incorporated therein, or the verified petition must set forth the entire instrument vesting title, including the recordation data. If the property affected is personalty, the location and the description of the property and the decedent's interest therein must be set forth with particularity. D. Death Certificate. A certified copy of the death certificate must be filed with the petition. Attorney's Fees. There is no provision in the Probate Code for allowance of E. attorney's fees in proceedings to establish the fact of death. The attorney should make fee arrangements directly with the client. If a surviving joint tenant failed during his or her lifetime to establish the fact of death of a previously deceased joint tenant, an extraordinary fee may be awarded in the probate proceeding involving the surviving joint tenant for those services performed after the death of the surviving joint tenant. 14.88 Temporary Guardianships and Conservatorships A. Grounds. A temporary guardianship or conservatorship will not be granted without a showing of good cause. The petition must set forth facts showing the emergency or urgent nature of the request. B. Setting on Ex Parte Calendar. Petitioners must set a hearing date and time on the daily ex parte calendar as provided in Rule 14.17A.
120
Local Rules of Court
San Francisco Superior Court
Rule 14
C.
D.
E.
F.
G.
Notice. 1. Temporary conservatorships. Unless the Court for good cause otherwise orders, at least five (5) days before the hearing on the appointment of temporary conservator, the petitioner must give notice by: a. Personally serving notice of hearing and a copy of the petition on the proposed conservatee, and b. Mailing notice of hearing and a copy of the petition to persons required to be named in the petition for appointment of conservator. 2. Temporary Guardianships. a. Unless the Court for good cause otherwise orders, at least five (5) days before the hearing on the appointment of a temporary guardian, the petitioner must personally serve notice of hearing and a copy of the petition on the proposed ward if 12 years of age or older, parents of the proposed ward and anyone having a valid visitation order with the proposed ward, and b. Petitioner must give 24 hours notice by telephone or fax to relatives to the second degree of the proposed ward. Presentation of Petition and Proof of Service. A separate petition for appointment of a general guardian or conservator must first be on file and a hearing date assigned before a petition for temporary guardian or conservator will be considered. A petition for temporary appointment must be filed in the clerk's office and endorsed filed copies of both the general and temporary petitions, along with proof of service of the notice and petition for the temporary appointment, must be delivered to the Probate Department at least five (5) days before the scheduled hearing date. Appearance at Hearing. The Public Guardian need not appear at the hearing of an uncontested ex parte petition for appointment of the Public Guardian as temporary guardian or conservator. In all other cases, the petitioner, proposed temporary conservator or guardian, and counsel, if any, must appear at the hearing. The proposed temporary conservatee must appear unless the court investigator's report or a Capacity Declaration, Form GC-335, excuses the proposed temporary conservatee's appearance under Probate Code §2250.4. In guardianship proceedings, the minor must be present. Bond. A full bond based on the value of personal property and one year's gross income will normally be imposed upon a temporary guardian or conservator of the estate. If a lesser amount is requested, good cause must be shown in the petition. Powers of Temporary Guardians and Conservators. Temporary guardians or conservators have the same powers as regular guardians or conservators with the following exceptions: 1. Sales. Temporary guardians or conservators may not sell any property including securities, vehicles, personal property, or real property. 2. Change of residence. Temporary guardians or conservators may change the residence of the ward or conservatee only with Court authorization except in an emergency or if there is a need for an acute hospitalization.
121
Local Rules of Court
San Francisco Superior Court
Rule 14
H.
I.
J.
Special Powers. Special powers are not favored in temporary guardianships or conservatorships. If special powers or other special orders are sought, they must be specified in the petition and supported by factual allegations constituting good cause. In any case involving a special medically related power, a physician's declaration should be presented with the petition in accordance with LRSF Rule 14.90.G.1.b. Length of Appointment. A temporary guardian will not be appointed for a period exceeding thirty (30) days. An extension can be ordered by the Court for good cause. A temporary conservator will be appointed only pending the hearing on the petition for the appointment of the conservator. Copies. All filings regarding guardianships and conservatorships must be accompanied by a copy designated for the Court Investigation Unit of the Probate Department.
14.89
Guardianship A. Notice. On Petition for Appointment of Guardian. Notice of petition must 1. comply with Probate Code §§1510-1511. In situations where an order dispensing with notice is sought on the ground that a relative within the second degree cannot be found with reasonable diligence, and no other notice is required under Probate Code §1511, the Court requires a declaration stating specifically what efforts were made to locate the relatives. 2. Screening. When a petition for guardianship of person is filed, a copy of the petition and other documents must be given to the San Francisco HSA and to the Director of Social Services at the Director's Office in Sacramento pursuant to Probate Code §1516 and 1542. This will enable the agencies to screen the proposed guardian for neglect or abuse of children. The following documents should be provided to the San Francisco HSA within a week of the filing of the documents at the Superior Court. The following documents are required by the Probate Code and the HSA: a. Notice of Hearing b. Petition for Guardianship c. The order and Letters of Temporary Guardianship, if one was granted d. The Declaration of the Proposed Guardian e. The Declaration under the Uniform Child Custody Jurisdiction Act f. Any consents, nominations, or waivers of notice and consent g. A cover letter which provides the following information for the proposed guardian and each other adult living in the household(s) of the proposed guardian(s): (1) The complete name of each adult (2) The date of birth of each adult (3) The social security number of each adult (4) The driver's license number or California identification number of each adult
122
Local Rules of Court
San Francisco Superior Court
Rule 14
h.
The documents should be sent to: Theresa McGovern, N120 Family and Children's Services HSA Box 7988 San Francisco, CA 94120-7988
B.
In cases where a natural parent is seeking to be appointed guardian of a minor, the screening by the HSA will not be required. 3. Other Court Proceedings. If a minor is involved in any other court proceeding, i.e., Juvenile Court for dependency or delinquency, litigation or Family Court Services, past or present, it must be stated in the petition for guardianship. The dates and case numbers of those actions must be included. 4. Appearance of Proposed Ward at Hearing for Appointment of Guardian. An appearance by the proposed ward is required. Investigative Reports. Unless waived by the Court, an investigative report may be given to the Court prior to appointment of a guardian of the person and/or estate pursuant to Probate Code §1513 (a). In all cases where a non-relative petitions to be appointed guardian, the HSA will perform an investigation including a home visit, and make a report to the Court prior to the hearing date. When the proposed guardian is a relative, a Court Investigator will conduct an investigation pursuant to Probate §1513, including a home visit, and provide a report to the Court prior to the hearing date. Further investigation or mediation will be performed as required by the Court. Review of Guardianships. The Court has a program to use trained, supervised volunteers to assist the Court in reviewing guardianships. Guardians will receive a visit from the Court to discuss the needs and progress of the minor. The Court Visitor will make a report to the Court as to the needs of the minor. Where the guardian is a natural parent, the Court will not require a visit. Information to be Supplied. 1. Required Declaration. The Court requires that a declaration in support of the petition for guardianship of the person be filed with the petition by the proposed guardian. The declaration will become part of the court file which is a public record. The declaration must include the following: a. The need for guardianship including the specific reasons why the parents are unable to care for the proposed ward, and whether they consent to the guardianship. b. The proposed guardian's complete legal name, date of birth, education, employment, and state of health. c. Information if the proposed guardian is presently serving as a guardian in San Francisco County or any other county and, if so, the names of the wards. d. The complete legal name, date of birth and relationship of all persons residing in the proposed guardian's household.
123
C.
D.
Local Rules of Court
San Francisco Superior Court
Rule 14
E.
A statement concerning the development of the minor, indicating with whom minor has resided since birth, and any special emotional, psychological, educational or physical needs of the minor and the guardians' ability to provide for such needs. f. The proposed daycare for the minor, if applicable, and the name, address and telephone number of the minor's school, if any. g. The housing arrangements of the guardian, indicating whether the minor will have his or her own room or will be sharing a room with another member of the guardian's household, and if so, with whom. h. The anticipated amount and source of any financial support of the minor. Counsel is reminded that the appointment of a guardian does not relieve the minor's parents of their primary obligation of support. i. A photocopy of the visa of a minor in the United States on a student visa. j. Any arrest record of the guardian and each person who will reside in the guardian's home, including the nature of the offense, the date, place, and disposition. k. Any pending or prior proceedings in Juvenile Court (dependency or delinquency), Family Court, or any other court involving the minor. Any pending proceedings in Juvenile Court (dependency or delinquency) involving any other persons who will be residing in the guardian's home should also be stated. Information required in this section should include the date, place, case numbers, and disposition of the matter(s). l. Any prior contact by the minor, the guardian, and any persons who will reside in the guardian's home with Child Protective Services or the HSA. m. The name and telephone number of the physician or medical clinic where the child receives his/her medical care. n. Information which should be revealed to the Court but which the petitioner wishes to have remain confidential, shall be addressed to the Court Investigator and labeled, "For Confidential Use Only." A Confidential File may be established by the Clerk of Court to contain confidential information filed with the petition for guardianship. Generally confidential files will not be created under any other circumstance. 2. Declaration Under UCCJA. A declaration under the Uniform Child Custody Jurisdictional Act (UCCJA) must be filed with the petition and at any time there is a change of address of the ward. Judicial Council Form GC-120. Inventories and Accounts for Several Wards. When a guardianship of the estate has been instituted for more than one minor, the interests of each minor must be separately stated in the inventory and separate accounting schedules must be presented so that the receipts, disbursements and assets pertaining to each minor's estate are readily ascertainable.
124
e.
Local Rules of Court
San Francisco Superior Court
Rule 14
F.
G.
H. I.
J.
K.
Accounts and Reports. 1. In General. The report accompanying each accounting should contain a statement of the age, health and whereabouts of the ward. In addition, the report should contain an allegation concerning the amount of bond currently in effect and should address the question of the adequacy thereof. 2. Waivers of Accounts. Waivers of interim accounts will not be accepted. Waivers of final accounts on termination are not favored and the Court will require the ward to be present at the hearing. 3. Calendaring of Inventory and Appraisal and Accounting. All guardianships of estate will be placed on calendar for the filing of the Inventory and Appraisal approximately ninety (90) days after appointment of the guardian. If the Inventory and Appraisal are on calendar, no appearance will be required unless deemed necessary by the Court. The Court will also place the First Account on calendar for one year after appointment. If the accounting is on file, no appearance will be required unless the Court deems it necessary. 4. Status Report. Where there is a guardianship of the person, the Court will require the filing of a Status Report Judicial Council form GC-251 and will set a date for hearing 6 months to one year after appointment of a guardian. If the Status Report is on file by that date, no appearance will be required unless deemed necessary by the Court. The Clerk of the Court will mail a blank form to the guardian to be completed and returned to the Court. Final accounts. See CRC §§ 7.1005-7.1007. 5. Discharges. Discharge of the guardian will not be made in the order settling the final account. A separate declaration for final discharge must be submitted, together with the receipt executed by the former ward and a copy of the order settling the final account and ordering delivery of the assets to the former ward. The declaration must state the date on which the ward reached majority. A guardian is not entitled to a discharge until one year after the ward has reached majority, unless the ward has given the guardian a valid release. Probate Code §2627. Copies. All filings regarding guardianships must be accompanied by a copy designated for the Court Investigation Unit, Probate Department. Current Addresses. All attorneys and guardians are required to keep the Court informed of their current addresses and phone numbers as well as the current address and phone number of the ward. Use of Minor's Assets for Support in Guardianship Cases. Prior Court approval must be obtained before using guardianship assets for the minor's support, maintenance or education (Probate Code §2422). The petition must set forth what exceptional circumstances would justify any use of guardianship assets for the minor's support. Such request may be included in a petition for the appointment of a guardian. An order granting such petition should normally be for a limited period of time, usually not to exceed one year, or for a specific and limited purpose. Disposition of Minor's Funds (Probate Code §§3410-3413).
125
Local Rules of Court
San Francisco Superior Court
Rule 14
L.
M.
N.
Contents of Petition. A petition under these sections 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 showing that the requested relief will best serve the interests of the minor. 2. Notice. The petition may be presented ex parte if the only relief sought (other than reimbursement for filing fee and award of reasonable attorneys' fees) is to deposit funds in a blocked account. Otherwise, the petition must be noticed. 3. Blocked Accounts. Orders to Deposit Money into Blocked Account, and Receipt and Acknowledgment of Order for Deposit into Blocked Account must be on Judicial Council forms MC-355 and MC-356. Orders for Withdrawal of Blocked Funds. 1. Prior to Majority. Where withdrawal is sought prior to the time the minor reaches the age of majority, the guardian must complete Judicial Council forms 357 and 358 and may present them to the Probate Department ex parte. The purpose and necessity of the withdrawals should be explained in detail. Withdrawals generally will not be approved except in cases of medical emergencies or exceptional need when the parents cannot afford to meet the needs of the minor in full. The order will specify that checks shall be made payable to the provider of goods and services and not to the guardian. 2. Upon Termination. Where withdrawal is sought because the minor has reached majority, and the order establishing the blocked account is not self-executing, a certified copy of the minor's birth certificate or other convincing evidence of the minor's age must be presented with the petition for withdrawal. The order must provide for payment of the funds only to the former minor. Withdrawal of Attorney of Record. Attorneys who wish to withdraw from a guardianship must formalize that withdrawal with a noticed hearing. Generally the Court will not accept the substitution of a guardian of the estate as a selfrepresented party. Termination of Guardianship. A petition for the termination of a guardianship of person may be filed at any time during the guardianship but need not be filed when the ward turns 18 years of age. Where there is a guardianship of estate, a petition for termination is required even if accountings have been waived. At the hearing date for consideration of the petition for termination on waiver of final account, the attorney, guardian, and newly-turned adult must appear.
1.
14.90
Conservatorship A. Special Requirements. Copies. An extra copy of all conservatorship filings must be given to the 1. Clerk of Court designated for the Court Investigation Unit, Probate Department. 2. Order Appointing Court Investigator. San Francisco does not use the Judicial Council form Order Appointing Court Investigator. Instead, the San Francisco form Notification to Court of Address of Conservatee and
126
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
C.
D.
of Conservator is to be used and must be filed in duplicate. An extra copy must be given to the Clerk of Court designated for the Court Investigation Unit, Probate Department. 3. Contact Information. The Contact Information form must be filed with all petitions for appointment of conservator, with petitions for appointment of successor conservator, and with all accountings in conservatorship matters. The Contact Information form is available in the clerk's office or online at www.sfgov.org/site/courts. 4. Confidential Supplemental Information. All petitions for conservatorship must be accompanied by the Judicial Council form, Confidential Supplemental Information. 5. Deficits In Mental Functions. The proposed conservatee's deficits in mental functioning as set forth in Probate Code §812 should be addressed within the Confidential Supplemental Information form. If the conservatorship is contested, or if the petitioner requests determination that the proposed conservatee lacks capacity to give informed consent to medical treatment, the petitioner must file a capacity declaration (Judicial Council form GC 335) completed by the proposed conservatee's doctor. 6. Petition for Appointment of Successor Conservator. Petitions for appointment of successor conservators are heard on the Thursday morning calendar. Petitions for appointment of successor conservators must be filed in documents separate from accountings and other documents. Such petitions must be accompanied by two other forms: a. notification to court of address of conservatee and b. conservator confidential supplemental information 7. Court supervision of conservatee's living trust. a. A petition to bring a (proposed) conservatee's living trust under court supervision must be filed under a separate case number. b. All accounts of trusts related to conservatorships must be filed under a separate case number. c. The conservatorship or trust case number should be noted in parentheses under any pleading caption in the related matter. Qualifications of Conservators who are not Private Professional Conservators. All conservators in this category must complete the education classes as ordered at the time of their appointment as conservator. These classes must be completed within six months of appointment as a conservator. A Certificate of Completion must be filed with the Court. Handbook for Conservators. Before Letters of Conservatorship are issued, each conservator of the person or estate must obtain and file a receipt for the Handbook for Conservators. The Handbook includes a separate Resource Supplement. The cost of the Handbook may be reimbursed from the conservatorship estate. The Handbook is available in the Clerk of Court Office at the Probate Window. Order Appointing Conservator. On the Judicial Council form Order Appointing Conservator, paragraphs 2f and 3f concerning the ability to vote should be left blank. The Court does not grant attorney fees in the Order Appointing Conservator.
127
Local Rules of Court
San Francisco Superior Court
Rule 14
E.
F.
G.
H.
I.
Additional Powers. The Court may, on the petition of the conservator either at the time of appointment or later, grant additional powers to the conservator as authorized by the Probate Code §§2590 and 2591. The Court does not favor the granting of special powers absent a showing of good cause. Any additional powers will be tailored to the specific circumstances of each case. Medical Consent Authority. Probate Code §2354. All conservators of the person have the power to consent to medical treatment of the conservatee so long as the conservatee does not object. In emergencies, the conservator may require the conservatee to receive medical treatment even though the conservatee does not consent. Exclusive Medical Consent Authority. 1. Probate Code §2355. General mental confusion, disorientation, etc. will not alone support an order for exclusive medical authority. Such authority will only be granted if the following conditions are satisfied: a. Court Investigator Report. It clearly appears from the court file that a Court Investigator has advised the conservatee of the effect of granting such authority and of the conservatee's rights in regard to such request. b. Physician's Declaration. A physician's declaration, Judicial Council form GC 335, is filed stating a medical opinion that the proposed conservatee lacks the capacity to give informed consent to any medical treatment and that the proposed conservator should be granted the exclusive authority to give such consent and to consent over the objection of the proposed conservatee. Such declaration must state the factual basis for the opinion and the nature and extent of the physician's examination and investigation. 2. Conservatee Regains Capacity. If a conservatee regains sufficient capacity to give informed consent to any form of medical treatment, the conservator shall promptly petition, pursuant to Probate Code §1891, to revoke any previous order granting the conservator exclusive authority to consent to medical treatment on behalf of the conservatee. Notice. 1. Giving Notice. Notice of hearing must be given in accordance with Probate Code §§1821 and 1822. Where the proposed conservatee is also subject to a LPS Conservatorship, notice must be given to the attorney representing the proposed conservatee in that action and to the LPS conservator. 2. Petition for Appointment of Conservator. There is no statutory basis for shortening the time for notice or for dispensing with notice on a petition for the appointment of a conservator. 3. Power of Attorney. If the proposed conservatee has executed a power of attorney (bank, limited, durable, general, for finances or for health care), the attorney in fact should receive notice of the petition for conservatorship. This information should also be included in the petition for conservatorship. Changes of Address. The conservator must promptly file notice with the Court of any changes of address or telephone number of the conservator, the
128
Local Rules of Court
San Francisco Superior Court
Rule 14
J.
conservatee, or the attorney for the conservator and provide the copy for the Court Investigation Unit. Accounts and Reports. 1. Inventory and Appraisal; Payment of Assessment Fee; Recording of Letters. The Inventory and appraisal is due ninety (90) days from appointment. The conservator must also pay the Assessment Fee for the first investigation unless the fee was waived or deferred by the Court. The conservator must also produce evidence of the recording of letters as prescribed in Probate Code §2313. The Court will calendar a date for the filing of the Inventory and Appraisal, the proof of payment of the assessment fee and the filing of the Evidence of the Recording of letters. The amount of the assessment fee and the filing date will be stamped on the Order Appointing Conservator at the time of the hearing. No appearance will be necessary if the Inventory and Appraisal, Proof of Payment of Assessment Fee and Evidence of Recording of Letters are on file. In lieu of a receipt, successor conservators must file an information only Inventory and appraisal, using the values from the prior conservator's inventory for non-cash assets. General Plan. At the time the conservator is appointed, the Court will set a date for filing of the General Plan. A copy of the General Plan must be given to the Court Investigation Office. If the General Plan is on file on the date set by the Court, no appearance will be required unless deemed necessary by the Court. First Account. The first account is due one year after appointment. The Court will calendar the filing of the first account at the time of appointment of the conservator. Probate Code § 2620. If the account is on file with a hearing date set in the future, no appearance will be required unless deemed necessary by the Court. Status Report. All conservators of estate who are also the conservators of person must file a Status Report at the time of all accounts. The form is available in the Clerk's Office. The Court will calendar the filing of the first Status Report at the time of appointment of the conservator. If the Status Report is on file with a hearing date set in the future, no appearance will be required unless deemed necessary by the Court. The Status Report must contain information as to the health and placement of the conservatee, the amount and source of any monthly allowance for the support of the conservatee, the adequacy of the bond if there is one, and the amount of any outstanding liabilities. Though not required by statute, these rules require that all conservators of person file a Status Report one year after appointment and every other year thereafter. The Status Report is required even if no conservatorship of estate exists.
2.
3.
4.
129
Local Rules of Court
San Francisco Superior Court
Rule 14
5.
6.
The Status Report is Confidential and must be labeled as such by counsel. Status Reports must be filed separately from accountings and will be placed in the Conservatorship Confidential File. Waiver or Deferral of Account. Waivers or deferrals of Account will be accepted in the Court's discretion only in the following instances: a. When the proceeding is terminated by Court order, and the conservatee thereafter waives an account. b. When the proceeding is terminated by death of the conservatee and (a) there is no Will and a written waiver is obtained from all of the conservatee's heirs, or (b) there is a Will and a written waiver is obtained from the executor and the beneficiaries under the Will after the order admitting the Will has become final. Waivers will be accepted only from heirs or beneficiaries who are competent adults. c. When a Court Investigator determines that the estate may qualify for deferral of accountings, a form will be furnished to the conservator. If the form is signed by the conservator and returned to the Court Investigation Unit within the time allowed, the Court may make an order deferring future accountings. Final accounts where the conservatorship has been terminated by the death of the conservatee. Final accountings must be filed within 90 days of the death of a conservatee. Conservatorships where there has been a waiver of accountings or a deferral of court assessment fees must file a final report stating the current circumstances of the estate re: the need for a final accounting or the possibility of payment of the assessment fee. When the court learns that a conservatee has died and no final accounting or report has been filed, the court will set a status date for filing of the final accounting or report. When there is a conservatorship of person only, a declaration must be filed noting the date of death, and addressing the possibility of payment of the assessment fee. The Court requires that notice of the hearing on the settlement of the final account or report be given to the personal representative of the probate estate if one has been appointed or named in the conservatee's will. If there is no such representative or if the representative and the conservator are the same person, then notice should be given to all devisees and to the heirs of the conservatee so far as is known to the conservator. The petition accompanying the final account should state the name of the personal representative of the deceased conservatee's estate. If probate proceedings have been filed in San Francisco, the number of the pending probate should be indicated. If probate proceedings are pending in another county, a certified copy of letters should be filed in the conservatorship. If probate proceedings have not been commenced and delivery of the assets may be made pursuant to Probate Code §13100, the names of those persons entitled to the delivery of the assets should be set forth and original 13100 affidavits must be on file.
130
Local Rules of Court
San Francisco Superior Court
Rule 14
The order settling the final account must provide for delivery of the assets to the named personal representative or to the devisees or heirs as indicated in the petition, and compliance with the order is a basis for discharge of the conservator. The hearing on the petition for settlement of the final account should not be set until a personal representative has been appointed or the required declarations, pursuant to Probate Code §13100, are on file. When the conservatee has died, and no final accounting has been provided to the court, the court investigator may set the matter for hearing. Notice of the hearing date will be given to the conservator and to the attorney using the form notice to close conservatorship. If the final accounting is on file and set for a future hearing date, and if the "proof of payment of assessment fees" has been filed, no appearance will be required unless the court requires it. 7. Final account where conservatee is living. Counsel are reminded that the final account must be served on the conservatee where the conservatorship has been terminated with respect to a living conservatee. In such cases, the proof of notice must clearly indicate the notice of the petition and the final account. Sale of Real Property. 1. Court Confirmation. The Court will only grant a power to sell real property under Probate Code §2591 where the power is made subject to Court confirmation of any sale made by the conservator. 2. Petition for authorization to grant exclusive broker listings and to sell real property. A petition for authorization to grant an exclusive listing will be considered ex parte but only after prior authority to sell has been obtained on a noticed petition at the time of the appointment of the conservator or on a subsequent noticed petition. The petitions may be combined as a noticed petition. All conservatorship sales are subject to court confirmation notwithstanding Probate Code §2540. et. seq. Sale of Conservatee's Residence. If the conservator petitions to sell the conservatee's present or former residence, the petition must allege that the conservatee is unable to return to the residence or, if able, that the conservatee agrees to the sale, or that the sale is necessary to generate cash to support the conservatee. The petition must include the information that the sale has been discussed with the conservatee pursuant to Probate Code §2540 (b). The report must include the responses of the conservatee. Where the sale of the conservatee's residence is sought, a copy of the petition must be provided to the Court Investigation Unit at the time of the filing of the petition. The Court may require further investigation of the issue. Establishment of Trusts Funded by Court Order. 1. Application of this rule. The requirements set forth below apply to all trusts funded by court order, as defined by CRC, Rule 7.903(a), regardless
131
K.
L.
M.
Local Rules of Court
San Francisco Superior Court
Rule 14
N.
of whether the beneficiary is subject to conservatorship. The court may waive one or more requirements upon a showing of good cause. 2. Terms of trust. Regardless of any other provision of a trust established under court order, in administering the trust, the trustee shall be subject to the same terms and conditions as a conservator of estate during the lifetime of the conservatee, unless specifically waived by the Court upon a showing of good cause. 3. Notice. Notice of all petitions relating to the trust must be given to all interested government agencies. 4. Order. The order authorizing creation of the trust must attach a copy of the proposed trust with space for the judicial officer's signature on the final page. Assessment Fees. In accordance with Probate Code §1851.5, assessments for court investigations will be made at the time of the filing of each investigation report. Payment for the initial report and reports when a petition for a successor conservator has been filed are due and payable at the time of the filing of the Inventory and appraisal. The Order Appointing Conservator will include the necessary information regarding the amount of the assessment and the date of payment. For review investigations, payment is due and payable prior to approval of the current account unless payment has been waived or deferred by the Court. At the time that the review investigation is mailed to counsel, the Assessment Fee and an Order for Payment will be included. The form Proof of Payment of Assessment Fee must be on file for the Court to be notified that the fee has been paid. Where good cause is shown by petition, the assessment fee may be waived or deferred by the Court. If the assessment fee is paid within 5 (five) court days of the calendared hearing date, a courtesy copy of the Proof of Payment of Assessment Fee should be delivered to the Probate Department. If any assessments for the cost of investigations have been deferred due to the small size of the estate and the estate will be filing a final account, that account should address the issue of whether the estate can bear the cost of the amount of assessments deferred at the time of termination of the conservatorship. If the requirement for accountings has been waived and some or all of the amount of assessments has been previously deferred, the conservator may submit a declaration addressing the issue of whether the estate can bear the cost of the amount of assessments deferred at the time of termination of the conservatorship prior to being discharged. If any assessment ordered for the cost of an investigation has not been paid as documented by the filing of a Proof of Payment of Assessment Fee form, the final accounting of the conservator will not be approved and the conservator will not be discharged. Attorney fees will not be approved for payment. Proof of Payment of Assessment Fee forms are available in the office of the clerk of the court, Room 103.
132
Local Rules of Court
San Francisco Superior Court
Rule 14
O. P.
Q.
R.
Distribution of Assets. The order distributing assets must contain the name of the personal representative or the distributee(s) and a list of the assets. Death or Resignation of Conservator. 1. If there are multiple conservators and one dies or resigns, the remaining conservator(s) must petition for a new bond and amended letters. 2. An order accepting a co-conservator's resignation must provide a status date for the former conservator's final account. 3. The bond of the former conservator will not be discharged without approval of the former conservator's final account. Withdrawal of Attorney of Record. Attorneys who wish to withdraw from a conservatorship must formalize that withdrawal generally with a noticed hearing. Substitution of a non-attorney In Pro Per is not acceptable to the Court. Court-Appointed Attorneys. If necessary, the Court will appoint an attorney to represent a (proposed) conservatee. Attorneys who wish to be considered for appointment may write a letter to the judge of the Probate Department outlining experience and interests that are related to Probate Conservatorship law and must show that they are in compliance with California Rules of Court adopted pursuant to Probate Code §1456. 1. Time of Appointment. Upon appointment, attorneys will be furnished with a Court Order and a copy of relevant filings. Court Investigator reports will also be made available. Court-appointed attorneys are expected to remain in close communication with the Court Investigator. 2. Personal Visit. Court-appointed attorneys are expected to personally visit the person they have been appointed to represent and to interview other individuals as the case may merit. 3. Representation as to Conservatorship Only. Court-appointed attorneys are expected to represent the (proposed) conservatee only on the issue of conservatorship. Other legal work, such as wills, real estate transactions, estate transactions, estate planning, tenant disputes, must be approved separately by the Court. 4. Role of the Court-Appointed Attorney. Court-appointed attorneys are expected to inform the Court of the wishes, desires, concerns, and objections, of the (proposed) conservatee. If asked by the Court, the attorney may give his or her opinion as to the best interests of the (proposed) conservatee. 5. Fees. Fees for court-appointed attorneys are set by the Probate Department. Fees will be paid from the estate of the conservatee if there are assets. If there are no assets, payment will be made from the Controller's Office of the City and County of San Francisco at the prevailing rate $85 per hour for court-appointed attorneys. 6. Discharge. Court-appointed attorneys are expected to request discharge from the case at a time deemed appropriate by them and the Probate Department. At that time, the court-appointed attorney will petition for discharge and for fees. A declaration as to the nature and hours of work performed must be included with any petition for fees. A court appearance may not be necessary if all parties agree that discharge is
133
Local Rules of Court
San Francisco Superior Court
Rule 14
appropriate. The matter may be handled ex parte with notice to the conservator. 14.91 Extraordinary Services in Decedent's Estates. See CRC, Rule 7.703. For administration of a decedent's estate commenced before July 1, 1991, §902 of the 1990 Probate Code is applicable. For the administration of a decedent's estate commenced after July 1, 1991, additional compensation for the extraordinary services of the personal representative may be granted pursuant to Probate Code §10801 and additional fees for the extraordinary services of the attorney may be granted pursuant to Probate Code §10811. The Court will consider the following regardless of when the administration of a decedent's estate commenced: A. Factors. The following factors will guide the attorney and the court in determining whether and in what amount extraordinary fees will be awarded: 1. The time required for the services. 2. Results obtained. 3. Benefits accruing to the estate and to the beneficiaries. 4. Nature of services performed by personal representatives. 5. Amount of statutory fees. B. Declaration. Requests for extraordinary fees must be by declaration containing a detailed description of the work performed, the hours spent, and the average hourly rate requested, the total amount requested and the special circumstances related to the request including the results obtained and the benefit to the estate. C. Paralegal Services. Extraordinary attorney's services may include services of a paralegal acting under the direction and supervision of an attorney. The petition must set forth the hours spent, the qualifications of the paralegal, the work performed and the hourly rate. In addition, the petition should provide the Court with assurance that the amount requested for the extraordinary services of the attorney and paralegal combined do not exceed the amount appropriate if the attorney provided the services without the paralegal's assistance. D. Examples. Fees may be awarded for extraordinary services, including but not limited to the following: 1. sales, leases, exchanges, financing or foreclosure of real or personal property. 2. contested or litigated claims against the estate. 3. preparation of income, sales, withholding, gift, or estate tax returns and handling of audits or litigation connected with tax liabilities. 4. carrying on the decedent's business. 5. will contest. Litigation Connected with Estate. Extraordinary compensation for representing E. the estate in litigation outside the regular administration of the estate whether by the attorney for the representative or outside counsel should be requested in advance and will ordinarily be allowed upon a properly noticed petition estimating the cost of the litigation. Upon proper showing, the Court may authorize progress payments prior to completion.
134
Local Rules of Court
San Francisco Superior Court
Rule 14
14.92
Compensation for Trustees, Guardians and Conservators. A. Criteria. Estate of Nazro (1971) 15 Cal.App.3d 218, 93 Cal. Rptr. 116, states the following applicable criteria: 1. the gross income of the estate; 2. the success or failure of the administration of the fiduciary; 3. any unusual skill or experience that the fiduciary in question may have brought to his/her work; 4. the fidelity or disloyalty displayed by the fiduciary; 5. the amount of risk and responsibility assumed; 6. the time spent in carrying out his/her duties; 7. the custom in the community as to allowances by settlors or courts, and as to charges of corporate fiduciaries; 8. the character of the work performed, i.e., whether routine or involving skill or judgment; 9. the fiduciary's estimate of the value of his/her own services.
14.93 Compensation for Guardians and Conservators of the Person. Fees for guardians and conservators of the person will be awarded on the basis of the amount and quality of the services rendered, actual time expended and hourly rate. All requests should be accompanied by declaration of the guardian or conservator. 14.94 Compensation Guidelines for Management of the Estate. Ordinarily, annual fees for guardians, conservators and trustee shall not exceed the following: One percent (1%) of the fair market value of assets at the end of the accounting period. Alternatively, a fee of six percent (6%) of income may be allowed in the Court's discretion. The Court will accept an allegation in the verified petition as to market values of the assets of the guardianship, conservatorship, or trust to support the fees requested according to the above guidelines. Fee requests which exceed these guidelines must be supported by a declaration of services rendered, time expended, average hourly rate requested, results obtained and the benefit to the estate. Should the application of the guideline fee appear excessive, the Court may also require additional documentation and justification. The Court will evaluate the services as a whole rather than designate part of the services as "ordinary" and part of the services as "extraordinary." 14.95 When Will or Trust Instrument Sets Trustee's Fees. If the will or trust instrument contains provisions for a trustee's compensation, the trustee is entitled to receive compensation as provided therein. On a proper showing, the Court may allow a greater compensation when: A. the trustee's services are substantially greater than those contemplated by the testator or settlor at the time the will was signed or the trust was created; B. the compensation provided in the will or trust is so unreasonably low that a competent trustee would not agree to administer the trust, or C. there are extraordinary circumstances. 14.96 Expenses of Tax-Related Services, Accounting and Bookkeeping. The personal representative may employ tax counsel, tax auditors, accountants or other tax experts for the
135
Local Rules of Court
San Francisco Superior Court
Rule 14
preparation of tax returns and for other tax related services, and pay from the funds of the estate for such services. The Court may deduct from the personal representative's statutory commission any sums paid from estate funds for performance of the representative's ordinary duties such as ordinary accounting and bookkeeping services, including the preparation of schedules for court accountings. 14.97 Attorney's Fees in Conservatorships, Guardianships and Trusts. Attorney's compensation is allowed according to the work actually performed. Fee requests must be supported by a declaration under penalty of perjury of services performed, time expended, average hourly rate, results accomplished and benefit to the entity. In the event the attorney's office has performed bookkeeping services for a fiduciary, the Court may award the attorney a larger compensation and the fiduciary a lesser compensation. Fees requested for time billed by a paralegal must be supported by the attorney's declaration regarding the paralegal's compliance with Business and Professions Code §6450. 14.98 Contingency Fee Contracts. All contingency fee contracts to which a personal representative, guardian or conservator is a party must be submitted to the Court for approval on noticed hearing. A copy of the contingency fee contract must be attached to the petition requesting approval. Probate Code §2644 and §10811. 14.99 Time for Allowing Compensation. A. In Decedent's Estates. Statutory compensation will be granted by the Court only in proportion to the work actually completed. In any event, the last twenty-five percent (25%) of the statutory compensation generally will not be allowed before the final distribution. Compensation for extraordinary services will be allowed before final distribution only when it appears likely that the estate will remain in probate for an unusually long time, whether due to litigation or other cause, or on a showing that present payment will benefit the beneficiaries or the estate. In Guardianships, Conservatorships and Trusts. No fees to the fiduciary or the fiduciary's attorney will be ordered paid in guardianships or conservatorship proceedings until the filing of an inventory and in no event, before the expiration of ninety (90) days from the issuance of letters. Probate Code §§2640-2642. The Court prefers to determine the amount of fees at the time an accounting is considered. If numerous Orders to Show Cause have been issued to effect compliance, the Court will consider reducing requested fees. Fees or Commissions Taken in Advance. There is no authority for payment of any commissions or fees in decedent's estates, testamentary trusts, guardianships or conservatorships in advance of a court order authorizing such payment. Unless the Court has fixed an amount of a periodic compensation under Probate Code §§15682 and 2643, where commissions or fees are paid in advance of Court authorization, the Court will ordinarily require an appearance by counsel and a declaration stating the reasons for such payments. The Court may require a payment of interest on such payments or impose a surcharge.
B.
C.
136
Local Rules of Court
San Francisco Superior Court
Rule 14
In petitions requesting reimbursement to a conservator or guardian for the payment of a retainer, the attorney must describe services performed and their benefit to the estate, before the Court will allow reimbursement. 14.100 Procedure. A. Form of Application for Compensation. An application for compensation may be included in a petition for settlement of account, in a petition for distribution, or in a separate petition under Probate Code §§2640, 2642, 10831(b) and 17200. The application should request a specific amount and not merely "reasonable fees." B. Contents of Petition. All applications for commissions and fees in trusts, guardianships and conservatorships must be supported by a description of the services forming the basis of the request, including the surrounding circumstances, the benefit to the entity, the time spent and the average hourly rate. Applications for compensation for extraordinary services in a decedent's estate will not be considered unless the caption of the petition and the notice of hearing include a reference to the request. Notice. Notice will be required to a non-petitioning personal representative or fiduciary and when appropriate, to the residuary beneficiaries or, in an insolvent estate, to the major creditors. 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. Contents of Proposed Order. When extraordinary or other fees are requested, the amount requested should be inserted in the proposed order, even though the fees have not yet been allowed by the Court. If the Court allows a fee other than that requested, counsel may revise the order or have the Court change and initial the amount allowed.
C.
D.
E.
14.101 Imposition of Lien. Where all or a portion of the fee awarded exceeds the cash on hand in the estate, the Court may issue an order imposing a lien accruing five percent (5%) simple interest for fees on any or all of the assets in the estate. Ordinarily, enforcement of the lien will be deferred until the assets of the estate, subject to the lien, have been liquidated for reasons other than the satisfaction of an unpaid fee. 14.102 Costs Reimbursed or Absorbed in Fee. A. Reimbursed.
137
Local Rules of Court
San Francisco Superior Court
Rule 14
B.
C.
D. E.
Court clerk's fees. Newspaper publication fees. Surety bond premium. Appraisal fees. Absorbed as part of fees. Secretarial and word processing time. Computer time. Local mileage and parking. Reimbursed only in Court's discretion, depending upon circumstances disclosed. Long distance telephone Long distance travel If attorney's fee is waived (as when attorney is also representative) show details of costs in first accounting covering period of disbursement. Obtain prior Court permission if amounts are unusually large.
14.103 Executor/Attorney Compensation on Sale of Real Property. Where the attorney or personal representative is also a licensed real estate agent or broker, the attorney or personal representative may collect the statutory fee as well as the commission on the sale of real property subject to prior Court approval, however, no extraordinary fees shall be awarded.
Rule 14 amended effective January 1, 2008; adopted July 1, 1998; amended effective January 1, 2000; amended effective January 1, 2001; amended effective January 1, 2003; amended effective January 1, 2004; amended effective January 1, 2005; amended effective July 1, 2006; amended effective January 1, 2007; amended effective July 1, 2007.
138
Local Rules of Court
San Francisco Superior Court
Rule 14
Appendix A
family tree.pdf
139
Local Rules of Court
San Francisco Superior Court
Rule 14
Appendix B Rules for Determining Commissions on Sales of Real Property (Probate Code §§10160-10167)
AGENT A represents original bidder where bid is being returned for court confirmation. AGENT B represents successful overbidder.
(1) One-half of commission on the original bid returned for confirmation. Agent B's Commission (1) Calculate full commission on successful overbid. (2) Subtract Agent A's commission. (3) The balance will be Agent B's commission.
Example 1 AGENT A -- represents original buyer whose bid is ......................... AGENT B -- represents successful overbidder at ............................ Agent A's Commission - $200,000 at 5% 10,000 divided by 2 ........... Agent B's Commission - $210,500 at 5% less $5,000 .......................
$ 200,000 $ 210,500 $ 5,000 $ 5,525
Example 2 No agent on original overbid. Agent B for successful overbidder at $210,500. Commission limited to 50% of overbid amount: $10,500 divided by 2 ...................... $ 5,250 Probate Code §10162. See Law Revision Commission comment 1987 Addition Probate Code §10161.
140
Local Rules of Court
San Francisco Superior Court
Rule 14
Appendix C Checklist of Commonly Encountered Problems and Reasons for Delay 1. 2. Proposed orders not submitted on time (2 weeks before hearing). Proofs of mailing notice not on file or defective, or required notice not given, as for example: a) on probate distributions, beneficiaries not noticed; b) on trust accounts, remaindermen not noticed; c) on petitions under Probate Code §17200, failure to mail copies of petition when required, or to refer to that mailing on the proof; d) when pleadings are amended - new notice required; e) on petitions to admit a will and codicils, failure to give notice to a beneficiary whose bequest has been revoked by a codicil; f) failure to give notice to a contingent beneficiary, e.g., where a will proscribes a survival period and the survival period has not elapsed. Account in poor form: a) no summary reconciling charges and credits; b) starting figure incorrect or missing (e.g., amount of inventory, amount received on distribution, or amount on hand at last account); c) inadequate itemization of income, not showing source and dates; d) showing principal items as income or "receipts;" e) inadequate itemization of disbursements, not showing dates of payments, to whom paid and for what purpose; f) failure to show property on hand; g) computation of statutory fees unclear or defective; 1) claiming "statutory fees" on community property passing to a spouse, where there has been no §13502(b) election; 2) erroneously increasing estate accounted for by refunds received on death taxes, returned deposits on sales and advances by beneficiaries; Failure to caption petition so as to give complete notice and full information as to contents. Death taxes not allocated or prorated in petition for final distribution, where there is no tax clause. Creditors claims filed with Clerk of the Court, but not acted upon by the personal representative. Failure to describe assets on hand in petitions for distribution, or to describe assets in orders making distribution and failure to include full legal description of real property in decree of distribution and in orders confirming sale of real property. Failure to sufficiently allege and describe services rendered on extraordinary fee requests. Incomplete facts re identity and genealogy of issue of predeceased child and heirs of predeceased spouses and other non-obvious heirs. In petitions to settle trust accounts, failure to justify by appropriate allegation (e.g., consent of beneficiaries) any deviation from the usual method of charging fees one-half to income and one-half to principal.
141
3.
4. 5. 6. 7.
8. 9. 10.
Local Rules of Court
San Francisco Superior Court
Rule 14
11. 12.
13. 14. 15.
16. 17. 18. 19.
20.
21.
In petitions and orders for distribution, failure to provide for the statutory interest on general pecuniary bequests. Failure to allege and explain a plan of distribution in cases where there is insufficient cash, where cash adjustments are required, or where there are complexities in allocating or prorating death taxes or computing distributable percentages of residue. In appropriate cases (e.g., specific bequests and distributions to trusts), failure to allocate probate income on final distribution. Failure to use current Judicial Council forms. Failure to allege the status of bonds and the possible need for increase or decrease in petitions to settle accounts of guardians and conservators, or in petitions to release blocked funds. Omission of verification by petitioner. Attachment of inappropriate "exhibits" to proposed orders. In petitions for final distribution, failure to justify the proposed distribution by references to the will or by outlining the intestate entitlement. In proposed orders for final distribution, proposing findings or orders not covered in the petition, or incorporating trust provisions of the will by reference, rather than setting them forth in full. Ex Parte Orders: a) lack of personal appearance by attorney and proposed fiduciary on applications for special letters of administration or temporary letters of guardianship or conservatorship; b) failure to submit copies of receipts and decree of distribution with applications for discharge. c) failure to allege status as to requests for special notice; d) failure to allege specific jurisdictional facts on petitions to approve sales of depreciating property or property causing expense, particularly with respect to jewelry, coins or furniture; e) on application for exclusive listing agreements, failure to attach a copy of the proposed agreement on an appropriate form adapted for probate sales, and to allege reasons why the exclusive listing is advantageous; f) on petitions or stipulations for correcting orders, failure to make allegations or recitals showing entitlement to relief under CCP §473. Inventories: a) no indication as to whether property is separate or community; b) property inadequately described; c) properly inventoried assets omitted; d) improper assets included.
142
Local Rules of Court
San Francisco Superior Court
Rule 14
Appendix D EX PARTE GUIDELINES FOR PROBATE 1. Ex parte hearing calendar. The following matters may be set on the daily ex parte probate calendar according to existing procedures for scheduling and notice: · Petition for appointment of temporary conservator · Petition for supplemental powers of temporary conservatorship if an urgent need arises during the temporary conservatorship · Petition for appointment of temporary guardian · Petition for letters of special administration · Petition for appointment of temporary trustee if there is a need for an immediate appointment · Application for order shortening time · Application for temporary restraining order · Other matters only with approval of the court 2. Mail-in or drop-off requests.
All ex parte matters not listed above for setting on the daily ex parte probate calendar may be submitted by leaving an endorsed filed copy with the probate secretary. If the papers have a date by which action must be taken, the petitioner must attach to the Probate Department copy a cover sheet in the form provided by the court to inform the court of the date and the action. 3. Matters that will not be considered on an ex parte basis. · · · · · · · · · · · · Petitions to determine entitlement to property (e.g. Heggstad & §850 petitions) Petitions for substituted judgment under Probate Code §2580 Petitions for preliminary or final distributions Requests for partial statutory fees or commission Appointment of successor trustees Petitions for termination of trusts, for settlement of accounts and/or for final distribution Petitions to approve settlement agreements (unless previously authorized by a judicial officer in open court) Reducing conservator's bond during an interim accounting period when no accounting is presented Sale of a conservatee's residence Encumbering a conservatee's residence including requests for reverse mortgages, equity lines, etc. Conservator's fees on account Authorization to retain counsel on contingency fee contract
143
Local Rules of Court
San Francisco Superior Court
Rule 14
For any of the above matters, the court will consider a special setting upon the presentation of a declaration explaining the necessity and reasons for a special setting. An order shortening time for notice can also be obtained through the ex parte appearance calendar.
144
Local Rules of Court
San Francisco Superior Court
Rule 14
Appendix E
FOR ALL PROBATE FEE SCHEDULES 2003 2005
Log onto website sfgov.org/site/courts_page.asp?id=3802
145
Free Superior Court of California - California
| File Size: | 134.5 kB |
| Pages: | 50 |
| File Format: | |
| State: | California |
| Category: | Court Forms - Local |
| Author: | SFSC |
| Word Count: | 22,250 Words, 138,626 Characters |
| Page Size: | Letter (8 1/2" x 11") |
| URL |
http://www.sfgov.org/site/uploadedfiles/courts/rule_14(1).pdf |
| Download Superior Court of California ( 134.5 kB) |
Preview Superior Court of California
Popular Searches
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms