Trusts and Estates

SB 1005

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By Kevin Bryce Jackson, Esq.
Withers Bergman LLP

Headnote: Senate Bill 1005 imposes protective measures that safeguard the sale of a conservateeā€™s former or current personal residence in a partition action.

Summary: Senate Bill 1005ā€”passed in 2022 and effective January 1, 2023ā€”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 conservateeā€™s property, including a personal residence, and the partition of a conservateeā€™s property.

This bill closes a loophole in the Probate Code that sidestepped the California Legislatureā€™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 conservateeā€™s homeā€”referred to as the personal residenceā€”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 conservateeā€™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 conservateeā€™s personal residence, the statutory scheme did not always protect against the disposition of the conservateeā€™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 conservateeā€™s property, which could include the conservateeā€™s personal residence. The partition of residential property almost always results in a sale (rather than a physical division), meaning the partition of a conservateeā€™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 conservateeā€™s personal residence as it did on a conservator who sold the conservateeā€™s personal residence. However, both actions generally had the same resultā€”a sale of the personal residence. This omission created a loophole in the law and a vulnerability in our Legislatureā€™s efforts to protect the personal residences of California conservatees. This bill closes that loophole by imposing the same restrictions in the partition context.

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