Probate Referees

Division 2, Part 12 of the Probate Code deals with probate referees in California. Chapter 1 deals with appointments and revocation of these referees.

Section 400 requires the Controller to appoint at least one person in each county to act as a probate referee for the county.

Section 401 requires an appointment to be from among persons passing a qualification examination. A person who passes the examination is eligible for appointment for a period of five years from the date of the examination.

Section 402 requires the qualification examination for applicants for appointment to act as a probate referee to be held at times and places within the state determined by the Controller. The Controller may contract with another agency to administer the qualification examination, which has to include four specified items.

Section 403 provides that the term of office of a probate referee is four years, expiring June 30.

Section 404 requires the Controller to establish and amend standards of training, performance, and ethics of probate referees. The standards are a public record. The Controller may revoke the appointment of a person to act as a probate referee for noncompliance with any standard of training, performance, or ethics.

Section 405 states that the Controller may, at the Controller’s pleasure, revoke the appointment of a person to act as a probate referee.

Section 406 provides that the authority of a person to act as a probate referee ceases immediately upon expiration of the person’s term of office, revocation of the person’s appointment, or other termination pursuant to law.

Section 407 defines the term “prohibited political activity.” Upon a person’s appointment and in January of each year during the person’s tenure as a probate referee, the person is required to file with the Controller a verified statement indicating whether the person has engaged in prohibited political activity during the preceding two calendar years.

Chapter 2 deals with the powers of probate referees. Section 450 provides that, upon designation by the court, the probate referee has all the powers of a referee of the superior court and all other powers provided in this chapter.

Section 451 states that, for the purpose of appraisal of property in the estate, the probate referee may require, and may issue a subpoena to compel, the appearance before the referee of the personal representative, guardian, conservator, or other fiduciary, an interested person, or any other person the referee has reason to believe has knowledge of the property.

Section 452 authorizes the probate referee to do two specified items.

Section 453 states that, on petition of a person required to appear before the probate referee pursuant to this chapter, the court may make a protective order to protect the person from annoyance, embarrassment, or oppression. The petitioner must deliver notice of the hearing on the petition to the probate referee and to the personal representative, guardian, conservator, or other fiduciary at least 15 days before the date set for the hearing. Any subpoena issued by the probate referee is stayed during the pendency of the petition.

Part 14, Chapter 1 deals with powers of appointment. Section 600 provides that the common law as to powers of appointment is the law of this state.

Section 601 explains that, if the law existing at the time of the creation of a power of appointment and the law existing at the time of the release or exercise of the power of appointment or at the time of the assertion of a right given by this part differ, the law existing at the time of the release, exercise, or assertion of a right controls.

Chapter 2 deals with the classification of powers of appointment.

Section 610 defines the terms: “appointee,” “appointive property,” “creating instrument, “donor,” “permissible appointee,” “power of appointment,” and “powerholder.”

Section 611 states that a power of appointment is “general” only to the extent that it is exercisable in favor of the powerholder, the powerholder’s estate, the powerholder’s creditors, or creditors of the powerholder’s estate, whether or not it is exercisable in favor of others.

Section 612 specifies that a power of appointment is “testamentary” if it is exercisable only by a will.

Section 613 explains that a power of appointment is “imperative” where the creating instrument manifests an intent that the permissible appointees be benefited even if the powerholder fails to exercise the power.

Chapter 3 deals with creation of powers of appointment.

Section 620 provides that a power of appointment can be created only by a donor having the capacity to transfer the interest in property to which the power relates.

Section 621 explains that a power of appointment is created only if all four of the specifies conditions are satisfied.