California Probate Code 19507 – (a) In this section, a notice period begins on the day notice is …
(a) In this section, a notice period begins on the day notice is given under subdivision (c) and ends 59 days after the day notice is given.
(b) An authorized fiduciary may exercise the decanting power without the consent of any person and without court approval in compliance with this part.
Terms Used In California Probate Code 19507
- Attorney-in-fact: A person who, acting as an agent, is given written authorization by another person to transact business for him (her) out of court.
- Beneficiary: means a person to whom a donative transfer of property is made or that person's successor in interest, and:
California Probate Code 24
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Fiduciary: means personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer To Minors Act (Part 9 (commencing with Section 3900) of Division 4), or other legal representative subject to this code. See California Probate Code 39
- Fiduciary: A trustee, executor, or administrator.
- Fraud: Intentional deception resulting in injury to another.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Instrument: means a will, a document establishing or modifying a trust, a deed, or any other writing that designates a beneficiary or makes a donative transfer of property. See California Probate Code 45
- Person: means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. See California Probate Code 56
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Trust: includes the following:
California Probate Code 82
- Will: includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will. See California Probate Code 88
(c) Except as otherwise provided in subdivision (h), an authorized fiduciary shall give notice of the intended exercise of the decanting power not later than 60 days before the exercise to all of the following:
(1) Each settlor of the first trust, if living or then in existence.
(2) Each qualified beneficiary of the first trust.
(3) Each holder of a presently exercisable power of appointment over any part or all of the first trust.
(4) Each person that currently has the right to remove or replace the authorized fiduciary.
(5) Each other fiduciary of the first trust.
(6) Each fiduciary of the second trust.
(7) The Attorney General, if subdivision (b) of Section 19514 applies.
(d) Unless the trust instrument provides otherwise, an authorized fiduciary shall give notice under subdivision (c) to the guardian ad litem for a qualified beneficiary who is a minor and has no representative or who is an unascertained or unborn beneficiary. If a guardian ad litem has not been appointed at the time of the notice, the authorized fiduciary shall seek the appointment of one. The court may appoint a guardian ad litem, for purposes of this section, in instances where the only matter before the court is that appointment.
(e) If an authorized fiduciary knows, or has reason to know, that a person entitled to notice under subdivision (c) is substantially unable to manage that person’s own financial resources or resist fraud or undue influence, the authorized fiduciary shall give notice under subdivision (c) to that person and to the individual appointed to act on that person’s behalf, including, but not limited to, an attorney-in-fact under a power of attorney. If no such individual has been appointed at the time of the notice, the authorized fiduciary shall seek the appointment of such an individual. The court may appoint a guardian ad litem, for purposes of this section, in instances where the only matter before the court is that appointment.
(f) An authorized fiduciary is not required to give notice under subdivision (c) to a person who is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.
(g) A notice under subdivision (c) shall include all of the following:
(1) A description of the manner in which the authorized fiduciary intends to exercise the decanting power, which shall include a statement as to the authorized fiduciary’s reason for the proposed decanting and an explanation as to the differences between the first trust and the second trust or trusts.
(2) The proposed effective date for exercise of the power.
(3) A copy of the first trust instrument.
(4) A copy of all second trust instruments.
(5) A warning, set out in a separate paragraph in not less than 10-point bold type, or a reasonable equivalent thereof, that states the following:
“If you do not bring a court action to contest the proposed trust decanting (the proposed changes to the trust) within 59 days of this notice, you will lose your right to contest the decanting.”
(h) The decanting power may be exercised before expiration of the notice period under subdivision (a) if all persons entitled to receive notice waive the period in a signed waiver.
(i) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under Section 19509 that asserts either of the following:
(1) An attempted exercise of the decanting power is ineffective because it did not comply with this part or was an abuse of discretion or breach of fiduciary duty.
(2) Section 19522 applies to the exercise of the decanting power.
(j) The notice required by this section shall be served by mail to the last known address, pursuant to Section 1215, or by personal delivery.
(Amended by Stats. 2023, Ch. 260, Sec. 23. (SB 345) Effective January 1, 2024.)