2022
Trust & Estate Law Developments
New Laws from the 2021 Legislative Cycle

Free Britney, RTODDs, and More

The Free Britney bill takes effect on Jan. 1, 2022 and increases protections for conservatees. AB 1079 addresses the empty chair problem of incompetent or incapacitated settlors. SB 315 may not fix all issues with the RTODD statutes but does incorporate all of the Commission’s substantive recommendations. In other news, potential misdemeanor charges against residential care facilities that fail to provide internet access devices for their residents.

Residential Care Facilities: Failure to Provide Internet Devices Punishable as Misdemeanor

AB 665 adds three new sections to the California Health & Safety Code: sections 1537.1, 1568.074, and 1569.319. The new sections require residential care facilities with internet service to provide at least one internet access device for resident use. AB 665 becomes part of the statutory regulations for care facilities (Health & Saf. Code, §§ 1530-1539), and violations are punishable as misdemeanors (Health & Saf. C AB 665 adds three new sections to the California Health and Safety Code: sections 1537.1, 1568.074, and 1569.319. The new sections require residential care facilities with internet service to provide at least one internet access device for resident use. AB 665 becomes part of the statutory regulations for care facilities (Health & Saf. Code, §§ 1530-1539), and violations are punishable as misdemeanors (Health & Saf. Code, § 1540).

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Juvenile Dependency: Support for Parents Making Efforts Toward Sobriety

AB 788 clarifies that in the context of a juvenile dependency proceeding, “relapse” is not the same as “resistance” to court-ordered drug or alcohol treatment for purposes of determining whether parents are entitled to reunification services. This codifies the decision in In re B.E. (2020) 46 CA5th 932, where the court broke with a line of cases that previously interpreted the meaning of “resist” to encompass significant relapses in addiction recovery.

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Revocable Transfer on Death Deed

SB 315 makes significant changes to the Revocable Transfer on Death Deeds (RTODDs) statutes in the California Probate Code. RTODDs transfer ownership of real property to a named beneficiary upon the transferor’s death, without needing a will, trust, or probate proceeding. Before SB 315 was introduced, the RTODD statutes were criticized due to their complexity, the lack of guidance regarding correcting errors or resolving ambiguities in RTODDs, and the potential for fraud, undue influence or duress in the creation of an RTODD. SB 315 addresses the Commission’s comments and incorporates all of its substantive recommendations.

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Uniform Partition of Heirs Property Act

AB 633 grants a person who gained in interest in real property from a relative the ability to buy out the interest of any co-owner filing an action for partition of the property by sale, and sets a procedure to determine the buyout price. The Act goes into effect on Jan. 1, 2022. The act adds new sections to the Code of Civil Procedure governing partition actions. (Current Code Civ. Proc., §§ 872.010-874.240, subsequent undesignated citations are to Code Civ. Proc.) It creates a new partition procedures for “Heirs Property.”

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Incapacitated Settlor? New Duties to Some Successor Beneficiaries

AB 1079 places additional duties on the trustee if no person holding the power to revoke a trust is competent by amending Probate Code sections 15800 and 16069, effective Jan. 1, 2022. The bill seeks to address the “empty chair problem” where the settlor, normally the person holding the power of revocation, is incompetent, and the “chair” of the person to whom the trustee’s duties flow is now empty. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1079 (2021-2022 Reg. Sess.) Apr. 3, 2021, p. 6.)

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‘Free Britney’ Bill

AB 1194, sometimes referred to as California’s “Free Britney” bill, aims to increase protections for conservatees, and will mostly take effect on Jan. 1, 2022. Key provisions of AB 1194 touch on fee transparency, enforcement and sanctions, information sharing, data collection and reporting, legal representation of choice, court investigations, conservatee participation, civil penalties, limits on compensation and reimbursement, and the best interest standard. It should be noted that like its predecessor in 2006, many provisions of AB 1194 are dependent on the Legislature appropriating funding.

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