By Kevin Bryce Jackson, Esq.
Withers Bergman LLP
Headnote: Senate Bill 1005 imposes protective measures that safeguard the sale of a conservatee’s former or current personal residence in a partition action.
Summary: Senate Bill 1005—passed in 2022 and effective January 1, 2023—expands the framework of Probate Code sections 2352.5, 2463, 2540, 2541, 2541.5, 2591, and 2591.5. These sections collectively govern the sale of a conservatee’s property, including a personal residence, and the partition of a conservatee’s property.
This bill closes a loophole in the Probate Code that sidestepped the California Legislature’s intent to protect the homes of California conservatees. Understanding the value of living at home, our Legislature enacted statutory protections to prevent the unnecessary sale of a conservatee’s home—referred to as the personal residence—as many California conservatorships involve elderly conservatees who live at home or could return home after a limited stay at a hospital or facility.
At the onset of most conservatorship proceedings, the personal residence of the conservatee is usually presumed to be the least restrictive appropriate residence, and a conservator cannot sell a conservatee’s present or former personal residence unless, among other things, the court finds by clear and convincing evidence that the conservator demonstrated a compelling need to do so for the benefit of the conservatee. While the Probate Code before enactment of Senate Bill 1005 safeguarded the sale of the conservatee’s personal residence, the statutory scheme did not always protect against the disposition of the conservatee’s personal residence, particularly through a partition action.
Probate Code section 2463 authorizes a conservator to bring an action for or agree to the partition of a conservatee’s property, which could include the conservatee’s personal residence. The partition of residential property almost always results in a sale (rather than a physical division), meaning the partition of a conservatee’s personal residence will almost always result in a sale. Before this bill, the Probate Code did not explicitly impose the same protective restrictions on a conservator who pursued the partition of a conservatee’s personal residence as it did on a conservator who sold the conservatee’s personal residence. However, both actions generally had the same result—a sale of the personal residence. This omission created a loophole in the law and a vulnerability in our Legislature’s efforts to protect the personal residences of California conservatees. This bill closes that loophole by imposing the same restrictions in the partition context.