Probate Code

§ 1 Division 1, Part 1 This code shall be known as the Probate Code. (Enacted by Stats. 1990, Ch. 79.) § 2 Division 1, Part 1 (a) A provision of this code, insofar as it is substantially the same as a previously existing provision relating to the same subject matter, shall be construed as a restatement and continuation thereof and not as a new enactment. (b) A provision of this code, insofar as it is the same in substance as a provision of a uniform act, shall be so construed as to effectuate the general purpose to make uniform the law in those states which enact that provision. (Enacted by Stats. 1990, Ch. 79.) § 3 Division 1, Part 1 (a) As used in this section: (1) “New law” means either of the following, as the case may be: (A) The act that enacted this code. (B) The act that makes a change in this code, whether effectuated by amendment, addition, or repeal of any provision of this code. (2) “Old law” means the applicable law in effect before the operative date of the new law. (3) “Operative date” means the operative date of the new law. (b) This section governs the application of a new law except to the extent otherwise expressly provided in the new law. (c) Subject to the limitations provided in this section, a new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, creation of a fiduciary relationship, death of a person, commencement of a proceeding, making of an order, or taking of an action. (d) If a petition, account, report, inventory, appraisal, or other document or paper is filed before the operative date, the contents, execution, and notice thereof are governed by the old law and not by the new law; but any subsequent proceedings taken after the operative date concerning the petition, account, report, inventory, appraisal, or other document or paper, including an objection or response, a hearing, an order, or other matter relating thereto is governed by the new law and not by the old law. (e) If an order is made before the operative date, including an order appointing a personal representative, guardian, conservator, trustee, probate referee, or any other fiduciary or officer, or any action on an order is taken before the operative date, the validity of the order or action is governed by the old law and not by the new law. Nothing in this subdivision precludes proceedings after the operative date to modify an order made, or alter a course of action commenced, before the operative date to the extent proceedings for modification of an order or alteration of a course of action of that type are otherwise provided by statute. (f) No personal representative, guardian, conservator, trustee, probate referee, or any other fiduciary, officer, or person is liable for any action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and such a person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences. (g) If the new law does not apply to a matter that occurred before the operative date, the old law continues to govern the matter notwithstanding its amendment or repeal by the new law. (h) If a party shows, and the court determines, that application of a particular provision of the new law or of the old law in the manner required by this section or by the new law would substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the operative date, the court may, notwithstanding this section or the new law, apply either the new law or the old law to the extent reasonably necessary to mitigate the substantial interference. (Enacted by Stats. 1990, Ch. 79.) § 4 Division 1, Part 1 Division, part, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of the provisions of this code. (Enacted by Stats. 1990, Ch. 79.) § 5 Division 1, Part 1 If a notice or other communication is required by this code to be mailed by registered mail, the mailing of the notice or other communication by certified mail is deemed to be sufficient compliance with the requirement. (Enacted by Stats. 1990, Ch. 79.) § 6 Division 1, Part 1 Unless the provision or context otherwise requires, the general provisions and rules of construction in this part govern the construction of this code. (Enacted by Stats. 1990, Ch. 79.) § 7 Division 1, Part 1 Whenever a reference is made to any portion of this code or to any other law, the reference applies to all amendments and additions heretofore or hereafter made. (Enacted by Stats. 1990, Ch. 79.) § 8 Division 1, Part 1 Unless otherwise expressly stated: (a) “Division” means a division of this code. (b) “Part” means a part of the division in which that term occurs. (c) “Chapter” means a chapter of the division or part, as the case may be, in which that term occurs. (d) “Article” means an article of the chapter in which that term occurs. (e) “Section” means a section of this code. (f) “Subdivision” means a subdivision of the section in which that term occurs. (g) “Paragraph” means a paragraph of the subdivision in which that term occurs. (h) “Subparagraph” means a subparagraph of the paragraph in which that term occurs. (Enacted by Stats. 1990, Ch. 79.) § 9 Division 1, Part 1 The present tense includes the past and future tenses, and the future, the present. (Enacted by Stats. 1990, Ch. 79.) § 10 Division 1, Part 1 The singular number includes the plural, and the plural, the singular. (Enacted by Stats. 1990, Ch. 79.) § 11 Division 1, Part 1 If any provision or clause of this code or application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are severable. (Enacted by Stats. 1990, Ch. 79.) § 12 Division 1, Part 1 “Shall” is mandatory and “may” is permissive. (Enacted by Stats. 1990, Ch. 79.) § 13 Division 1, Part 1 (a) The degree of kinship or consanguinity between two persons is determined by counting the number of generations separating those persons, pursuant to subdivision (b) or (c). Each generation is called a degree. (b) Lineal kinship or consanguinity is the relationship between two persons, one of whom is a direct descendant of the other. The degree of kinship between those persons is determined by counting the generations separating the first person from the second person. In counting the generations, the first person is excluded and the second person is included. For example, parent and child are related in the first degree of lineal kinship or consanguinity, grandchild and grandparent are related in the second degree, and great-grandchild and great-grandparent are related in the third degree. (c) Collateral kinship or consanguinity is the relationship between two people who spring from a common ancestor, but neither person is the direct descendent of the other. The degree of kinship is determined by counting the generations from the first person up to the common ancestor and from the common ancestor down to the second person. In counting the generations, the first person is excluded, the second person is included, and the common ancestor is counted only once. For example, siblings are related in the second degree of collateral kinship or consanguinity, an aunt or uncle and a niece or nephew are related in the third degree, and first cousins are related in the fourth degree. (Added by Stats. 2009, Ch. 348, Sec. 4. (SB 308) Effective January 1, 2010.) § 20 Division 1, Part 2 Unless the provision or context otherwise requires, the definitions in this part govern the construction of this code. (Amended by Stats. 1991, Ch. 82, Sec. 1. Effective June 30, 1991. Operative July 1, 1991, by Sec. 31 of Ch. 82.) § 21 Division 1, Part 2 “Account,” when used to mean a contract of deposit of funds between a depositor and a financial institution, includes a checking account, savings account, certificate of deposit, share account, mutual capital certificate, and other like arrangements. (Enacted by Stats. 1990, Ch. 79.) § 22 Division 1, Part 2 “Account in an insured credit union” means a share account in a credit union, either federally chartered or state licensed, that is insured under Title II of the Federal Credit Union Act (12 U.S.C. Sec. 1781, et seq.). (Enacted by Stats. 1990, Ch. 79.) § 23 Division 1, Part 2 (a) “Account in an insured savings and loan association” means a savings account or mutual capital certificate of either of the following: (1) A federal association. (2) A savings association doing business in this state which is an “insured institution” as defined in Title IV of the National Housing Act (12 U.S.C. Sec. 1724, et seq.). (b) As used in this section: (1) “Federal association” has the meaning given that term in subdivision (b) of Section 5102 of the Financial Code. (2) “Mutual capital certificate” has the meaning given that term in Section 5111 of the Financial Code. (3) “Savings account” has the meaning given that term in Section 5116 of the Financial Code. (4) “Savings association” has the meaning given that term in subdivision (a) of Section 5102 of the Financial Code. (Enacted by Stats. 1990, Ch. 79.) § 24 Division 1, Part 2 “Beneficiary” means a person to whom a donative transfer of property is made or that person’s successor in interest, and: (a) As it relates to the intestate estate of a decedent, means an heir. (b) As it relates to the testate estate of a decedent, means a devisee. (c) As it relates to a trust, means a person who has any present or future interest, vested or contingent. (d) As it relates to a charitable trust, includes any person entitled to enforce the trust. (Enacted by Stats. 1990, Ch. 79.) § 26 Division 1, Part 2 “Child” means any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved. (Enacted by Stats. 1990, Ch. 79.) § 28 Division 1, Part 2 “Community property” means: (a) Community property heretofore or hereafter acquired during marriage by a married person while domiciled in this state. (b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person while domiciled elsewhere, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition. (c) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person in exchange for real or personal property, wherever situated, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired. (Enacted by Stats. 1990, Ch. 79.) § 29 Division 1, Part 2 “Conservatee” includes a limited conservatee. (Enacted by Stats. 1990, Ch. 79.) § 30 Division 1, Part 2 “Conservator” includes a limited conservator. (Enacted by Stats. 1990, Ch. 79.) § 32 Division 1, Part 2 “Devise,” when used as a noun, means a disposition of real or personal property by will, and, when used as a verb, means to dispose of real or personal property by will. (Enacted by Stats. 1990, Ch. 79.) § 34 Division 1, Part 2 (a) “Devisee” means any person designated in a will to receive a devise. (b) In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees. (Enacted by Stats. 1990, Ch. 79.) § 36 Division 1, Part 2 “Dissolution of marriage” includes divorce. (Enacted by Stats. 1990, Ch. 79.) § 37 Division 1, Part 2 (a) “Domestic partner” means one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State pursuant to Division 2.5 (commencing with Section 297) of the Family Code, provided that the domestic partnership has not been terminated pursuant to Section 299 of the Family Code. (b) Notwithstanding Section 299 of the Family Code, if a domestic partnership is terminated by the death of one of the parties and Notice of Termination was not filed by either party prior to the date of death of the decedent, the domestic partner who survives the deceased is a surviving domestic partner, and shall be entitled to the rights of a surviving domestic partner as provided in this code. (Added by Stats. 2001, Ch. 893, Sec. 13. Effective January 1, 2002.) § 38 Division 1, Part 2 “Family allowance” means an allowance provided for in Chapter 4 (commencing with Section 6540) of Part 3 of Division 6. (Enacted by Stats. 1990, Ch. 79.) § 39 Division 1, Part 2 “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. (Amended by Stats. 1997, Ch. 724, Sec. 2. Effective January 1, 1998.) § 40 Division 1, Part 2 “Financial institution” means a state or national bank, state or federal savings and loan association or credit union, or like organization. (Enacted by Stats. 1990, Ch. 79.) § 42 Division 1, Part 2 “General personal representative” is defined in subdivision (b) of Section 58. (Enacted by Stats. 1990, Ch. 79.) § 44 Division 1, Part 2 “Heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. (Enacted by Stats. 1990, Ch. 79.) § 45 Division 1, Part 2 “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. (Amended by Stats. 2019, Ch. 56, Sec. 1. (SB 308) Effective January 1, 2020.) § 46 Division 1, Part 2 “Insured account in a financial institution” means an account in a bank, an account in an insured credit union, and an account in an insured savings and loan association, to the extent that the account is insured. (Enacted by Stats. 1990, Ch. 79.) § 48 Division 1, Part 2 (a) Subject to subdivision (b), “interested person” includes any of the following: (1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding. (2) Any person having priority for appointment as personal representative. (3) A fiduciary representing an interested person. (b) The meaning of “interested person” as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding. (Enacted by Stats. 1990, Ch. 79.) § 50 Division 1, Part 2 “Issue” of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent. (Enacted by Stats. 1990, Ch. 79.) § 52 Division 1, Part 2 “Letters”: (a) As it relates to a personal representative, means letters testamentary, letters of administration, letters of administration with the will annexed, or letters of special administration. (b) As it relates to a guardian or conservator, means letters of guardianship or conservatorship or temporary guardianship or conservatorship. (Enacted by Stats. 1990, Ch. 79.) § 54 Division 1, Part 2 “Parent” means any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved. (Enacted by Stats. 1990, Ch. 79.) § 55 Division 1, Part 2 “Pay-on-death account” or “P.O.D. account” is defined in Section 5140. (Enacted by Stats. 1990, Ch. 79.) § 56 Division 1, Part 2 “Person” means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. (Amended by Stats. 1994, Ch. 1010, Sec. 202. Effective January 1, 1995.) § 58 Division 1, Part 2 (a) “Personal representative” means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status. (b) “General personal representative” excludes a special administrator unless the special administrator has the powers, duties, and obligations of a general personal representative under Section 8545. (Amended by Stats. 2004, Ch. 888, Sec. 1. Effective January 1, 2005.) § 59 Division 1, Part 2 “Predeceased spouse” means a person who died before the decedent while married to the decedent, except that the term does not include any of the following: (a) A person who obtains or consents to a final decree or judgment of dissolution of marriage from the decedent or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as spouses. (b) A person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony to a third person. (c) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights. (Amended by Stats. 2016, Ch. 50, Sec. 76. (SB 1005) Effective January 1, 2017.) § 60 Division 1, Part 2 “Probate homestead” means a homestead provided for in Chapter 3 (commencing with Section 6520) of Part 3 of Division 6. (Enacted by Stats. 1990, Ch. 79.) § 60.1 Division 1, Part 2 (a) “Professional fiduciary” means a person who is a professional fiduciary as defined under subdivision (f) of Section 6501 of the Business and Professions Code. (b) On and after January 1, 2009, no person shall act or hold himself or herself out to the public as a professional fiduciary unless he or she is licensed as a professional fiduciary under Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code. (Amended by Stats. 2007, Ch. 354, Sec. 70. Effective January 1, 2008.) § 62 Division 1, Part 2 “Property” means anything that may be the subject of ownership and includes both real and personal property and any interest therein. (Enacted by Stats. 1990, Ch. 79.) § 66 Division 1, Part 2 “Quasi-community property” means the following property, other than community property as defined in Section 28: (a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition. (b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired. (Enacted by Stats. 1990, Ch. 79.) § 68 Division 1, Part 2 “Real property” includes a leasehold interest in real property. (Enacted by Stats. 1990, Ch. 79.) § 69 Division 1, Part 2 “Revocable transfer on death deed” or “revocable TOD deed” means a revocable transfer on death deed as described in Section 5614. (Added by Stats. 2015, Ch. 293, Sec. 3. (AB 139) Effective January 1, 2016.) § 70 Division 1, Part 2 “Security” includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing. (Enacted by Stats. 1990, Ch. 79.) § 72 Division 1, Part 2 “Spouse” includes domestic partner, as defined in Section 37 of this code, as required by Section 297.5 of the Family Code. (Added by Stats. 2016, Ch. 50, Sec. 77. (SB 1005) Effective January 1, 2017.) § 74 Division 1, Part 2 “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States. (Enacted by Stats. 1990, Ch. 79.) § 76 Division 1, Part 2 A “subscribing witness” to a will means a witness who signs the will as provided in Section 6110. (Enacted by Stats. 1990, Ch. 79.) § 78 Division 1, Part 2 “Surviving spouse” does not include any of the following: (a) A person whose marriage to, or registered domestic partnership with, the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage or registered domestic partnership, the person is married to, or in a registered domestic partnership with, the decedent at the time of death. (b) A person who obtains or consents to a final decree or judgment of dissolution of marriage or termination of registered domestic partnership from the decedent or a final decree or judgment of annulment of their marriage or termination of registered domestic partnership, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as spouses. (c) A person who, following a decree or judgment of dissolution or annulment of marriage or registered domestic partnership obtained by the decedent, participates in a marriage ceremony with a third person. (d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital or registered domestic partnership property rights. (Amended by Stats. 2016, Ch. 50, Sec. 78. (SB 1005) Effective January 1, 2017.) § 80 Division 1, Part 2 “Totten trust account” means an account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account. In a Totten trust account, it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A Totten trust account does not include (1) a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account or (2) a fiduciary account arising from a fiduciary relation such as attorney-client. (Enacted by Stats. 1990, Ch. 79.) § 81 Division 1, Part 2 “Transferor” means the testator, settlor, grantor, owner, or other person who executes an instrument. (Enacted by Stats. 1990, Ch. 79.) § 81.5 Division 1, Part 2 “Transferee” means the beneficiary, donee, or other recipient of an interest transferred by an instrument. (Added by Stats. 1994, Ch. 806, Sec. 2. Effective January 1, 1995.) § 82 Division 1, Part 2 (a) “Trust” includes the following: (1) An express trust, private or charitable, with additions thereto, wherever and however created. (2) A trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. (b) “Trust” excludes the following: (1) Constructive trusts, other than those described in paragraph (2) of subdivision (a), and resulting trusts. (2) Guardianships and conservatorships. (3) Personal representatives. (4) Totten trust accounts. (5) Custodial arrangements pursuant to the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state. (6) Business trusts that are taxed as partnerships or corporations. (7) Investment trusts subject to regulation under the laws of this state or any other jurisdiction. (8) Common trust funds. (9) Voting trusts. (10) Security arrangements. (11) Transfers in trust for purpose of suit or enforcement of a claim or right. (12) Liquidation trusts. (13) Trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind. (14) Any arrangement under which a person is nominee or escrowee for another. (Enacted by Stats. 1990, Ch. 79.) § 83 Division 1, Part 2 “Trust company” means an entity that has qualified to engage in and conduct a trust business in this state. (Enacted by Stats. 1990, Ch. 79.) § 84 Division 1, Part 2 “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court. (Enacted by Stats. 1990, Ch. 79.) § 86 Division 1, Part 2 “Undue influence” has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law. (Added by Stats. 2013, Ch. 668, Sec. 1. (AB 140) Effective January 1, 2014.) § 88 Division 1, Part 2 “Will” includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will. (Enacted by Stats. 1990, Ch. 79.) § 100 Division 2, Part 1 (a) Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent. (b) Notwithstanding subdivision (a), spouses may agree in writing to divide their community property on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of community property. (Amended by Stats. 2016, Ch. 50, Sec. 79. (SB 1005) Effective January 1, 2017.) § 101 Division 2, Part 1 (a) Upon the death of a person who is married or in a registered domestic partnership, and is domiciled in this state, one-half of the decedent’s quasi-community property belongs to the surviving spouse and the other one-half belongs to the decedent. (b) Notwithstanding subdivision (a), spouses may agree in writing to divide their quasi-community property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on the basis of a division of each individual item or asset of quasi-community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of quasi-community property. (Amended by Stats. 2016, Ch. 50, Sec. 80. (SB 1005) Effective January 1, 2017.) § 102 Division 2, Part 1 (a) The decedent’s surviving spouse may require the transferee of property in which the surviving spouse had an expectancy under Section 101 at the time of the transfer to restore to the decedent’s estate one-half of the property if the transferee retains the property or, if not, one-half of its proceeds or, if none, one-half of its value at the time of transfer, if all of the following requirements are satisfied: (1) The decedent died domiciled in this state. (2) The decedent made a transfer of the property to a person other than the surviving spouse without receiving in exchange a consideration of substantial value and without the written consent or joinder of the surviving spouse. (3) The transfer is any of the following types: (A) A transfer under which the decedent retained at the time of death the possession or enjoyment of, or the right to income from, the property. (B) A transfer to the extent that the decedent retained at the time of death a power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for the decedent’s own benefit. (C) A transfer whereby property is held at the time of the decedent’s death by the decedent and another with right of survivorship. (b) Nothing in this section requires a transferee to restore to the decedent’s estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse. (c) All property restored to the decedent’s estate under this section belongs to the surviving spouse pursuant to Section 101 as though the transfer had not been made. (Enacted by Stats. 1990, Ch. 79.) § 103 Division 2, Part 1 Except as provided by Section 224, if spouses die leaving community or quasi-community property and it cannot be established by clear and convincing evidence that one spouse survived the other: (a) One-half of the community property and one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if one spouse had survived and as if that one-half belonged to that spouse. (b) The other one-half of the community property and the other one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if the other spouse had survived and as if that one-half belonged to that spouse. (Amended by Stats. 2016, Ch. 50, Sec. 81. (SB 1005) Effective January 1, 2017.) § 104 Division 2, Part 1 Notwithstanding Section 100, community property held in a revocable trust described in Section 761 of the Family Code is governed by the provisions, if any, in the trust for disposition in the event of death. (Amended by Stats. 1992, Ch. 163, Sec. 119. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.) § 104.5 Division 2, Part 1 Transfer of community and quasi-community property to a revocable trust shall be presumed to be an agreement, pursuant to Sections 100 and 101, that those assets retain their character in the aggregate for purposes of any division provided by the trust. This section shall apply to all transfers prior to, on, or after January 1, 2000. (Added by Stats. 1999, Ch. 263, Sec. 1. Effective January 1, 2000.) § 105 Division 2, Part 1 This part does not apply where the decedent died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where the decedent died before January 1, 1985. (Enacted by Stats. 1990, Ch. 79.) § 120 Division 2, Part 2 If a married person dies not domiciled in this state and leaves a valid will disposing of real property in this state which is not the community property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in such property against the will of the decedent as though the property were located in the decedent’s domicile at death. (Enacted by Stats. 1990, Ch. 79.) § 140 Division 2, Part 3, Chapter 1 As used in this chapter, “waiver” means a waiver by the surviving spouse of any of the rights listed in subdivision (a) of Section 141, whether signed before or during marriage. (Enacted by Stats. 1990, Ch. 79.) § 141 Division 2, Part 3, Chapter 1 (a) The right of a surviving spouse to any of the following may be waived in whole or in part by a waiver under this chapter: (1) Property that would pass from the decedent by intestate succession. (2) Property that would pass from the decedent by testamentary disposition in a will executed before the waiver. (3) A probate homestead. (4) The right to have exempt property set aside. (5) Family allowance. (6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of Division 6. (7) The right to elect to take community or quasi-community property against the decedent’s will. (8) The right to take the statutory share of an omitted spouse. (9) The right to be appointed as the personal representative of the decedent’s estate. (10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with Section 5000) of Division 5. (b) Nothing in this chapter affects or limits the waiver or manner of waiver of rights other than those referred to in subdivision (a), including, but not limited to, the right to property that would pass from the decedent to the surviving spouse by nonprobate transfer upon the death of the decedent, such as the survivorship interest under a joint tenancy, a Totten trust account, or a pay-on-death account. (Amended by Stats. 1992, Ch. 51, Sec. 2. Effective January 1, 1993.) § 142 Division 2, Part 3, Chapter 1 (a) A waiver under this chapter shall be in writing and shall be signed by the surviving spouse. (b) Subject to subdivision (c), a waiver under this chapter is enforceable only if it satisfies the requirements of subdivision (a) and is enforceable under either Section 143 or Section 144. (c) Enforcement of the waiver against the surviving spouse is subject to the same defenses as enforcement of a contract, except that: (1) Lack of consideration is not a defense to enforcement of the waiver. (2) A minor intending to marry may make a waiver under this chapter as if married, but the waiver becomes effective only upon the marriage. (Enacted by Stats. 1990, Ch. 79.) § 143 Division 2, Part 3, Chapter 1 (a) Subject to Section 142, a waiver is enforceable under this section unless the surviving spouse proves either of the following: (1) A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided to the surviving spouse prior to the signing of the waiver unless the surviving spouse waived such a fair and reasonable disclosure after advice by independent legal counsel. (2) The surviving spouse was not represented by independent legal counsel at the time of signing of the waiver. (b) Subdivision (b) of Section 721 of the Family Code does not apply if the waiver is enforceable under this section. (Amended by Stats. 1992, Ch. 163, Sec. 120. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.) § 144 Division 2, Part 3, Chapter 1 (a) Except as provided in subdivision (b), subject to Section 142, a waiver is enforceable under this section if the court determines either of the following: (1) The waiver at the time of signing made a fair and reasonable disposition of the rights of the surviving spouse. (2) The surviving spouse had, or reasonably should have had, an adequate knowledge of the property and financial obligations of the decedent and the decedent did not violate the duty imposed by subdivision (b) of Section 721 of the Family Code. (b) If, after considering all relevant facts and circumstances, the court finds that enforcement of the waiver pursuant to subdivision (a) would be unconscionable under the circumstances existing at the time enforcement is sought, the court may refuse to enforce the waiver, enforce the remainder of the waiver without the unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result. (c) Except as provided in paragraph (2) of subdivision (a), subdivision (b) of Section 721 of the Family Code does not apply if the waiver is enforceable under this section. (Amended by Stats. 1992, Ch. 163, Sec. 121. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.) § 145 Division 2, Part 3, Chapter 1 Unless the waiver or property settlement provides to the contrary, a waiver under this chapter of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse, or a complete property settlement entered into after or in anticipation of separation or dissolution or annulment of marriage, is a waiver by the spouse of the rights described in subdivision (a) of Section 141. (Enacted by Stats. 1990, Ch. 79.) § 146 Division 2, Part 3, Chapter 1 (a) As used in this section, “agreement” means a written agreement signed by each spouse or prospective spouse altering, amending, or revoking a waiver under this chapter. (b) Except as provided in subdivisions (c) and (d) of Section 147, unless the waiver specifically otherwise provides, a waiver under this chapter may not be altered, amended, or revoked except by a subsequent written agreement signed by each spouse or prospective spouse. (c) Subject to subdivision (d), the agreement is enforceable only if it satisfies the requirements of subdivision (b) and is enforceable under either subdivision (e) or subdivision (f). (d) Enforcement of the agreement against a party to the agreement is subject to the same defenses as enforcement of any other contract, except that: (1) Lack of consideration is not a defense to enforcement of the agreement. (2) A minor intending to marry may enter into the agreement as if married, but the agreement becomes effective only upon the marriage. (e) Subject to subdivision (d), an agreement is enforceable under this subdivision unless the party to the agreement against whom enforcement is sought proves either of the following: (1) A fair and reasonable disclosure of the property or financial obligations of the other spouse was not provided to the spouse against whom enforcement is sought prior to the signing of the agreement unless the spouse against whom enforcement is sought waived such a fair and reasonable disclosure after advice by independent legal counsel. (2) The spouse against whom enforcement is sought was not represented by independent legal counsel at the time of signing of the agreement. (f) Subject to subdivisions (d) and (g), an agreement is enforceable under this subdivision if the court determines that the agreement at the time of signing made a fair and reasonable disposition of the rights of the spouses. (g) If, after considering all relevant facts and circumstances, the court finds that enforcement of the agreement pursuant to subdivision (f) would be unconscionable under the circumstances existing at the time enforcement is sought, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result. (h) Subdivision (b) of Section 721 of the Family Code does not apply if the agreement is enforceable under this section. (Amended by Stats. 1992, Ch. 163, Sec. 122. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.) § 147 Division 2, Part 3, Chapter 1 (a) Subject to subdivisions (c) and (d), a waiver, agreement, or property settlement made after December 31, 1984, is invalid insofar as it affects the rights listed in subdivision (a) of Section 141 unless it satisfies the requirements of this chapter. (b) Nothing in this chapter affects the validity or effect of any waiver, agreement, or property settlement made prior to January 1, 1985, and the validity and effect of such waiver, agreement, or property settlement shall continue to be determined by the law applicable to the waiver, agreement, or settlement prior to January 1, 1985. (c) Nothing in this chapter affects the validity or effect of any premarital property agreement, whether made prior to, on, or after January 1, 1985, insofar as the premarital property agreement affects the rights listed in subdivision (a) of Section 141, and the validity and effect of such premarital property agreement shall be determined by the law otherwise applicable to the premarital property agreement. Nothing in this subdivision limits the enforceability under this chapter of a waiver made under this chapter by a person intending to marry that is otherwise enforceable under this chapter. (d) Nothing in this chapter limits any right one spouse otherwise has to revoke a consent or election to disposition of his or her half of the community or quasi-community property under the will of the other spouse. (Enacted by Stats. 1990, Ch. 79.) § 200 Division 2, Part 4, Chapter 1 If title to or an interest in real or personal property is affected by the death of a person, another person who claims an interest in the property may commence proceedings pursuant to this chapter to establish the fact of the death. (Enacted by Stats. 1990, Ch. 79.) § 201 Division 2, Part 4, Chapter 1 (a) Proceedings under this chapter shall be commenced in the superior court of the county of which the decedent was a resident at the time of death or in the superior court of any county in which the property is located. (b) Proceedings under this chapter shall be commenced by filing a petition that sets forth all of the following information: (1) The jurisdictional facts. (2) A particular description of the affected property and of the interest of the petitioner in the property. (Enacted by Stats. 1990, Ch. 79.) § 202 Division 2, Part 4, Chapter 1 If proceedings for the administration of the decedent’s estate are pending, proceedings under this chapter may be combined with the administration proceedings in the following manner: (a) The petition shall be filed in the administration proceedings by the person affected or by the personal representative. (b) The petition shall be filed at any time before the filing of a petition for final distribution. The petition may be included in a petition for probate of the will of the decedent or for letters. (c) The petition shall be filed without any additional fee. (Enacted by Stats. 1990, Ch. 79.) § 203 Division 2, Part 4, Chapter 1 (a) Except as provided in subdivision (b), notice of the hearing shall be given as provided in Section 1220. (b) If the person who commenced the proceedings files an affidavit with the petition stating that the person has no reason to believe there is any opposition to, or contest of, the petition, the court may act ex parte. (Enacted by Stats. 1990, Ch. 79.) § 204 Division 2, Part 4, Chapter 1 (a) The petition and supporting affidavits may be received in evidence and acted upon by the court with the same force and effect as if the petitioner and affiants were personally present and testified to the facts set forth. (b) The court may render judgment establishing the fact of the death. The judgment is prima facie evidence of the fact of the death. The presumption established by this subdivision is a presumption affecting the burden of producing evidence. (Enacted by Stats. 1990, Ch. 79.) § 210 Division 2, Part 4, Chapter 2 If title to real property is affected by the death of a person, any person may record in the county in which the property is located any of the following documents establishing the fact of the death: (a) An affidavit of death executed by a person having knowledge of the facts. The affidavit shall include a particular description of the real property and an attested or certified copy of a record of the death made and filed in a designated public office as required by law. For purposes of this subdivision, a certified copy issued in this state shall include any copy issued pursuant to Section 103525 of, subdivision (a) of Section 103526 of, or paragraph (1) of subdivision (b) of Section 103526 of, the Health and Safety Code. (b) A certified copy of a court order that determines the fact of death made pursuant to Chapter 1 (commencing with Section 200) or pursuant to another statute that provides for a determination of the fact of death. (Amended by Stats. 2013, Ch. 78, Sec. 4. (AB 464) Effective January 1, 2014.) § 211 Division 2, Part 4, Chapter 2 (a) A document establishing the fact of death recorded pursuant to this chapter is subject to all statutory requirements for recorded documents. (b) The county recorder shall index a document establishing the fact of death recorded pursuant to this chapter in the index of grantors and grantees. The index entry shall be for the grantor, and for the purpose of this index, the person whose death is established shall be deemed to be the grantor. (Enacted by Stats. 1990, Ch. 79.) § 212 Division 2, Part 4, Chapter 2 A document establishing the fact of the death of a person recorded pursuant to this chapter is prima facie evidence of the death insofar as the document identifies real property located in the county, title to which is affected by the death. The presumption established by this section is a presumption affecting the burden of producing evidence. (Enacted by Stats. 1990, Ch. 79.) § 215 Division 2, Part 4, Chapter 3 Where a deceased person has received or may have received health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, or was the surviving spouse of a person who received that health care, the estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent shall give the Director of Health Care Services notice of the decedent’s death not later than 90 days after the date of death. The notice shall include a copy of the decedent’s death certificate. The notice shall be given as provided in Section 1215, addressed to the director at the Sacramento office of the director. (Amended by Stats. 2014, Ch. 71, Sec. 135. (SB 1304) Effective January 1, 2015.) § 216 Division 2, Part 4, Chapter 3 (a) For the purposes of this section “confined” means to be confined in a prison or facility under the jurisdiction of the Department of Corrections and Rehabilitation, or its Division of Juvenile Facilities, or confined in any county or city jail, road camp, industrial farm, or other local correctional facility. (b) The estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent shall give the Director of the California Victim Compensation Board notice of a decedent’s death not later than 90 days after the date of death in either of the following circumstances: (1) The deceased person has an heir or beneficiary who is confined. (2) The estate attorney, or if there is no estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent, knows that an heir or beneficiary has previously been confined. (c) The notice shall be given as provided in Section 1215 and shall include all of the following: (1) The name, date of birth, and location of incarceration, or current address if no longer incarcerated, of the decedent’s heir or beneficiary. (2) The heir’s or beneficiary’s CDCR number if incarcerated in a Department of Corrections and Rehabilitation facility or booking number if incarcerated in a county facility. (3) A copy of the decedent’s death certificate. (4) The probate case number, and the name of the superior court hearing the case. (d) Nothing in this section shall be interpreted as requiring the estate attorney, the beneficiary, the personal representative, or the person in possession of property of the decedent to conduct an additional investigation to determine whether a decedent has an heir or beneficiary who has been confined in a prison or facility under the jurisdiction of the Department of Corrections and Rehabilitation, or its Division of Juvenile Facilities, or confined in any county or city jail, road camp, industrial farm, or other local correctional facility. (Amended by Stats. 2016, Ch. 31, Sec. 260. (SB 836) Effective June 27, 2016.) § 217 Division 2, Part 4, Chapter 3 (a) A business that receives an oral or written request from a family member, attorney, or personal representative of a deceased person to cancel that person’s services may not require an in-person cancellation. (b) For purposes of this section, “services” include, but are not limited to, gas, electrical, water, sewage, cable, satellite, telephone, or cellular telephone service. (Added by Stats. 2007, Ch. 14, Sec. 1. Effective January 1, 2008.) § 220 Division 2, Part 5, Chapter 1 Except as otherwise provided in this chapter, if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other. (Enacted by Stats. 1990, Ch. 79.) § 221 Division 2, Part 5, Chapter 1 (a) This chapter does not apply in any case where Section 103, 6211, or 6403 applies. (b) This chapter does not apply in the case of a trust, deed, or contract of insurance, or any other situation, where (1) provision is made dealing explicitly with simultaneous deaths or deaths in a common disaster or otherwise providing for distribution of property different from the provisions of this chapter or (2) provision is made requiring one person to survive another for a stated period in order to take property or providing for a presumption as to survivorship that results in a distribution of property different from that provided by this chapter. (Amended by Stats. 2002, Ch. 138, Sec. 3. Effective January 1, 2003.) § 222 Division 2, Part 5, Chapter 1 (a) If property is so disposed of that the right of a beneficiary to succeed to any interest in the property is conditional upon surviving another person and it cannot be established by clear and convincing evidence that the beneficiary survived the other person, the beneficiary is deemed not to have survived the other person. (b) If property is so disposed of that one of two or more beneficiaries would have been entitled to the property if he or she had survived the others, and it cannot be established by clear and convincing evidence that any beneficiary survived any other beneficiary, the property shall be divided into as many equal portions as there are beneficiaries and the portion of each beneficiary shall be administered or distributed, or otherwise dealt with, as if that beneficiary had survived the other beneficiaries. (Enacted by Stats. 1990, Ch. 79.) § 223 Division 2, Part 5, Chapter 1 (a) As used in this section, “joint tenants” includes owners of property held under circumstances that entitled one or more to the whole of the property on the death of the other or others. (b) If property is held by two joint tenants and both of them have died and it cannot be established by clear and convincing evidence that one survived the other, the property held in joint tenancy shall be administered or distributed, or otherwise dealt with, one-half as if one joint tenant had survived and one-half as if the other joint tenant had survived. (c) If property is held by more than two joint tenants and all of them have died and it cannot be established by clear and convincing evidence that any of them survived the others, the property held in joint tenancy shall be divided into as many portions as there are joint tenants and the share of each joint tenant shall be administered or distributed, or otherwise dealt with, as if that joint tenant had survived the other joint tenants. (Enacted by Stats. 1990, Ch. 79.) § 224 Division 2, Part 5, Chapter 1 If the insured and a beneficiary under a policy of life or accident insurance have died and it cannot be established by clear and convincing evidence that the beneficiary survived the insured, the proceeds of the policy shall be administered or distributed, or otherwise dealt with, as if the insured had survived the beneficiary, except if the policy is community or quasi-community property of the insured and the spouse of the insured and there is no alternative beneficiary except the estate or personal representative of the insured, the proceeds shall be distributed as community property under Section 103. (Enacted by Stats. 1990, Ch. 79.) § 226 Division 2, Part 5, Chapter 1 This chapter does not apply where a person the priority of whose death is in issue died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where none of the persons the priority of whose death is in issue died on or after January 1, 1985. (Enacted by Stats. 1990, Ch. 79.) § 230 Division 2, Part 5, Chapter 2 A petition may be filed under this chapter for any one or more of the following purposes: (a) To determine for the purposes of Section 103, 220, 222, 223, 224, 6211, 6242, 6243, 6403, 21109, 21110 or other provision of this code whether one person survived another. (b) To determine for the purposes of Section 673 whether issue of an appointee survived the donee. (c) To determine for the purposes of Section 24611 of the Education Code whether a person has survived in order to receive benefits payable under the system. (d) To determine for the purposes of Section 21509 of the Government Code whether a person has survived in order to receive money payable under the system. (Amended by Stats. 2002, Ch. 138, Sec. 4. Effective January 1, 2003.) § 231 Division 2, Part 5, Chapter 2 A petition may be filed under this chapter by any of the following: (a) The personal representative of any person the priority of whose death is in issue under the applicable provision referred to in Section 230. (b) Any other person interested in the estate of any such person. (Enacted by Stats. 1990, Ch. 79.) § 232 Division 2, Part 5, Chapter 2 (a) The petition shall be filed in the estate proceeding in which the person filing the petition received his or her appointment or in the estate proceeding for the estate in which the person filing the petition claims an interest. (b) The court that first acquires jurisdiction under this section has exclusive jurisdiction for the purposes of this chapter. (Enacted by Stats. 1990, Ch. 79.) § 233 Division 2, Part 5, Chapter 2 Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons: (a) The personal representative of each person the priority of whose death is in issue if there is a personal representative for the person. (b) Each known devisee of each person the priority of whose death is in issue. (c) Each known heir of each person the priority of whose death is in issue. (d) All persons (or their attorneys if they have appeared by attorneys) who have requested special notice as provided in Section 1250 in the proceeding in which the petition is filed or who have given notice of appearance in person or by attorney in that proceeding. (Enacted by Stats. 1990, Ch. 79.) § 234 Division 2, Part 5, Chapter 2 If the court determines that the named persons are dead and that it has not been established by clear and convincing evidence that one person survived another, the court shall make an order to that effect. If the court determines that the named persons are dead and that there is clear and convincing evidence that one person survived another, the court shall make an order setting forth the order in which the persons died. The order, when it becomes final, is a binding determination of the facts set forth in the order and is conclusive as against the personal representatives of the deceased persons named in the order and against all persons claiming by, through, or under any of the deceased persons. (Enacted by Stats. 1990, Ch. 79.) § 240 Division 2, Part 6, Chapter 1 If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue. (Enacted by Stats. 1990, Ch. 79.) § 241 Division 2, Part 6, Chapter 1 Section 240 does not apply where the death of the decedent in the case of intestate succession or of the testator, settlor, or other transferor occurred before January 1, 1985, and the law applicable prior to January 1, 1985, shall continue to apply where the death occurred before January 1, 1985. (Enacted by Stats. 1990, Ch. 79.) § 245 Division 2, Part 6, Chapter 2 (a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 240 of the Probate Code,” or where a will, trust, or other instrument that expresses no contrary intention provides for issue or descendants to take without specifying the manner, the property to be distributed shall be distributed in the manner provided in Section 240. (b) Use of the following words without more, as applied to issue or descendants, is not an expression of contrary intention: (1) “Per capita” when living members of the designated class are not all of the same generation. (2) Contradictory wording, such as “per capita and per stirpes” or “equally and by right of representation.” (Enacted by Stats. 1990, Ch. 79.) § 246 Division 2, Part 6, Chapter 2 (a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 246 of the Probate Code,” the property to be distributed shall be divided into as many equal shares as there are living children of the designated ancestor, if any, and deceased children who leave issue then living. Each living child of the designated ancestor is allocated one share, and the share of each deceased child who leaves issue then living is divided in the same manner. (b) Unless the will, trust, or other instrument expressly provides otherwise, if an instrument executed on or after January 1, 1986, calls for property to be distributed or taken “per stirpes,” “by representation,” or “by right of representation,” the property shall be distributed in the manner provided in subdivision (a). (c) If a will, trust, or other instrument executed before January 1, 1986, calls for property to be distributed or taken “per stirpes,” “by representation,” or by “right of representation,” the property shall be distributed in the manner provided in subdivision (a), absent a contrary intent of the transferor. (Enacted by Stats. 1990, Ch. 79.) § 247 Division 2, Part 6, Chapter 2 (a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 247 of the Probate Code,” the property to be distributed shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living. Each living member of the nearest generation of issue then living is allocated one share, and the remaining shares, if any, are combined and then divided and allocated in the same manner among the remaining issue as if the issue already allocated a share and their descendants