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TRG Representative's Accountings

The document outlines the procedures and requirements for representative's accountings in California probate law, including types of accountings, required contents, and procedures for interim and final accountings. It details the legal obligations of representatives, the rights of interested parties to contest accounts, and the consequences of mismanagement. Additionally, it emphasizes the importance of compliance with statutory requirements and court procedures throughout the accounting process.

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100% found this document useful (1 vote)

64 views31 pages

TRG Representative's Accountings

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liz akemon

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Citation/Title
D. Representative's Accountings

*1966 CALIFORNIA PRACTICE GUIDE: PROBATE

SEPTEMBER 2018 UPDATE
CHAPTER 16. ACCOUNTINGS, DISTRIBUTIONS, COMPENSATION
AND DISCHARGE

D. REPRESENTATIVE'S ACCOUNTINGS

1. General Considerations
a. [16:91] Purpose of representative's accountings
b. [16:95] Types of accountings; when required
(1) [16:95.1] Final account
(2) [16:95.2] Interim accounts
(3) [16:100] Compare -- optional accounts
(4) [16:100.1] Compare --'supplemental' (postfinal) accounts
c. [16:103] IAEA not applicable
d. [16:104] Waiver of account
(1) [16:105] On written waiver, acknowledgment or provision for
satisfaction
(a) [16:106] Formalities
1) [16:107] Competent adults
a) [16:107.1] Or designated attorney in fact
2) [16:108] Minors
3) [16:109] Conservatees
4) [16:110] Trusts
5) [16:111] Estates
6) [16:111a] Unborn and unascertained beneficiaries
7) [16:111.1] Creditors (insolvent estates)
(b) [16:111.2] FORMS
(2) [16:112] Limitation --'report' required in any event
(a) [16:112.1] Ca Rules of Court Rule requirements
e. [16:114] Compelling required account through contempt power
(1) [16:114.1] Citation procedure
(a) [16:114.2] Issuance and service of citation
(b) [16:114.3] Evading service mandates removal
(2) [16:114.4] Disposition
f. [16:115] Compare -- account by third person in possession of estate
property
2. [16:116] Required Contents of Accounts
a. [16:116a] Comprehensive statutory scheme
b. [16:116.1] Basic components
(1) [16:116.2] Financial statement
(a) [16:116.3] 'Summary' format
(b) [16:116.4] Supporting schedules
(c) [16:116.5] Additional schedules
*1967 1) [16:116.6] Estimated market value of assets on hand
2) [16:116.7] Purchases, etc.
3) [16:116.8] Allocation of receipts/disbursements between
principal and income
4) [16:116.9] Income, disbursements, etc. re specifically

devised property
5) [16:116.10] Interest calculations
6) [16:116.11] Proposed distributions
a) [16:116.12] Between trusts
7) [16:116.13] Liabilities
(2) [16:116.15] Report of administration; statement of liabilities
c. [16:116.21] General guidelines for account reporting
(1) Charges and credits
(a) [16:117] Property, income and profits of estate
(b) [16:117.1] Losses to estate
(c) [16:117.2] Allowance of expenses of administration
(2) [16:118] Cash receipts and disbursements
(a) [16:119] Cash properly invested
1) [16:120] Investment obligations of trust company
representatives
(b) [16:121] Supporting documents
[16:122] PRACTICE POINTER
(c) [16:127] Allowance of debts paid without verified creditor
claims
1) [16:127.1] Account reporting 'good faith' payment of
'justly due' debts
2) [16:127.2] Account reporting payment pursuant to written
demand within claim-filing period
(d) [16:127.3] Payment of less than full claim
(e) [16:129] IAEA cases; additional allegations required by Ca
Rules of Court Rule
3. Procedure on Interim Accountings
a. [16:130] The process generally
(1) The 'account'
(a) [16:131] Financial statement
(b) [16:132] Report of administration
(2) [16:133] Petition for settlement
b. [16:134] When to file
[16:135] PRACTICE POINTER
(1) [16:138] Special rules where account required from deceased,
incapacitated or 'absconding' representative
(a) [16:139] Manner of accounting and compensation
*1968 (2) [16:139.5] Special rule re conservatorships and
guardianships
c. [16:140] Preparing interim account -- form, reports, schedules and
exhibits (Ca Rules of Court Rule and local rule requirements)
[16:140.1] CAVEATRE LOCAL RULES
(1) [16:141] General format
(2) [16:150] Allegations regarding creditor claims
(3) [16:151] Representative's claims; debts paid by representative
from own funds
(4) [16:151.1] Payment of unverified claims
(5) [16:152] Acts taken under IAEA
(6) [16:153] Bank letters
(a) [16:154] Bank statement in lieu of signed letters
(b) [16:155] Reconciliation

(7) [16:156] Cross-refer -- accountings on final distribution

[16:157] CAVEAT RE LOCAL RULES
d. [16:158] Preparing petition
(1) [16:159] Caption
(2) [16:160] General content
(3) [16:160.1] Statutorily-required content
(a) [16:160.2] Description of sales, purchases, etc.
(b) [16:160.3] Unusual items
(c) [16:160.4] Compensation paid
(d) [16:160.5] Relationship disclosures
(e) [16:160.6] Cash investment disclosures
e. [16:161] Notice of hearing on petition for settlement of account
(1) [16:162] Form of notice
(2) Special content requirements
(a) [16:163] Compensation requested
(b) [16:163.1] Final account
f. Hearing
(1) [16:164] Court's obligation to scrutinize account
(2) [16:164.1] Conduct of hearing
(a) [16:164.2] Referees
(b) [16:164.3] Other 'effectuating' orders
(3) [16:164.4] No right to jury trial
g. [16:165] Order settling account
4. [16:166] Contesting Accounts
a. Who may participate in contest
(1) [16:167] Objections raised by 'interested persons'
*1969 (a) [16:167a] 'Interested persons' generally -- dependent
on nature of contest
(b) [16:167.1] Federal government
(2) [16:167.2] Account defended by 'interested persons' (sureties,
etc.)
b. [16:168] Form of objections
(1) [16:168.1] Court discretion to order continuance after oral
objections
(2) [16:168.2] Request for continuance not an objection
[16:168.3] PRACTICE POINTER
c. [16:169] Time-frame; continuances
(1) [16:169.1] Waiver by failure to timely serve and file objection/
response after request for continuance
d. [16:169.5] No 'preobjection' discovery
e. [16:170] Matters objectionable
(1) [16:171] Valuation of estate property
(a) [16:172] Distinguish -- contesting values on inventory and
appraisal
(2) [16:173] Validity of allowed or approved claim
(a) [16:173.1] Burden of proof
(b) [16:175] Compare -- creditor rights where claims omitted from
account
(3) [16:176] Validity of IAEA actions
(a) [16:176.1] Purpose
(b) [16:176.2] Exception -- notice of proposed action already

given
f. [16:177] Surcharge litigation
(1) [16:178] Statutory limitations on liability
(a) [16:178.1] General 'good faith' protection
(b) [16:179] Protection for 'good faith' mistakes in taking
possession of nonestate property
(c) [16:181] Corepresentative's breach of fiduciary duty
(d) [16:182] Losses to estate
(2) [16:183] Illustrations of acts subject to surcharge
(a) Mismanagement of estate property
(b) [16:194] Failure to file tax returns on time
(c) [16:195] Failure to defend litigation against the estate
(d) [16:196] Failure to timely file inventory and appraisal
(e) [16:197] Noncompliance with court orders
(f) [16:198] Failure to petition for final distribution or to
file status report on time
*1970 (g) [16:199] Independent torts
(3) [16:200] Reliance on advice of counsel as defense?
(a) [16:201] Questions of law vs. questions of fact
(b) [16:202] Representative's recourse
(4) [16:203] Extent of surcharge liability -- consequential damages
plus interest
(a) [16:203.4] Court discretion to select appropriate measure
(b) [16:203.5] Amount of interest liability
1) [16:203.6] No compound interest
2) [16:203.7] Court discretion to excuse interest liability
3) [16:203.8] Other statutory and common law remedies
(c) [16:204] Attorney fees generally not allowable
1) [16:204a] Exception where opposition to contest in 'bad
faith'
2) [16:204.1] Compare --'common fund' theory of recovery
(d) [16:204.5] Compare -- other statutory and common law remedies
(5) [16:205] Reaching surety to satisfy surcharge liability
g. [16:206] Recovery of compensation and expenses for 'bad faith' contest
or opposition to contest
5. Final Accountings
a. [16:207] Statutory requirement
(1) [16:208] Contempt power to compel final account
(2) [16:209] Compare -- one-year/18-month deadline on petition for
final distribution or 'status report'
(3) [16:210] Payment of debts under prior account as 'final account'
(4) [16:211] Concurrent duty to petition for distribution
b. [16:212] Preparation and contents of final account
(1) [16:213] Scope of relief -- caption
(2) [16:214] Status of administration
(a) [16:215] Status report (if earlier filed)
(b) [16:216] IAEA acts
(3) Creditor claims
(a) [16:217] Notice to creditors and expiration of claim-filing
period
[16:217.1] CAVEAT

(b) [16:218] Disposition of claims

1) [16:219] Complete report required
2) [16:220] Effect of outstanding claims
*1971 (c) [16:221] Confirmation of notice to Director of Health
Care Services, Director of California Victim Compensation Board,
Franchise Tax Board, etc.
(4) Taxes
(a) [16:222] Payment of personal property taxes
(b) [16:223] Payment of estate taxes
1) [16:223.1] Caveat -- federal law deadline for paying
estate tax
2) [16:223.2] Comment
3) [16:224] Explanation of federal estate tax deferral
4) [16:225] Proration of estate taxes
(c) [16:226] Income taxes
1) [16:227] Tax certificate not required for distribution
(5) [16:228] Character of estate, receipts, property and cash on
hand, and disbursements
(a) [16:229] Payment of administration costs
1) [16:229a] Includes reimbursement of will lodging fee
(b) [16:229.1] Copying, telephone and fax costs not allowed
(6) [16:231] Proposed distribution and identification of
distributees
(a) [16:232] Minors
(b) [16:233] Assignees
(c) [16:234] Particular descriptions
(d) [16:235] When proper distribution unclear
(7) [16:236] Statutory and extraordinary compensation
(a) [16:237] Supporting declarations and exhibits
(b) [16:238] If account waived
(8) [16:239] Closing expenses
(9) [16:240] Prayer
(10) [16:241] Verification
(11) Additional matters (optional)
(a) [16:242] Attorney's joinder in compensation request
(b) [16:243] Waivers of accounting
c. [16:244] Notice of hearing
(1) [16:245] General notice requirements
(2) [16:246] Notice to prior representative or attorney
(3) [16:247] Notice and copy of account to State Controller in
escheat cases
d. [16:248] Hearing
e. [16:249] Order settling final account
(1) [16:250] Findings and recitals
*1972 (2) [16:252] Conclusive effect of order settling account
(a) [16:252.1] Representative's liability shield
(b) [16:253] Persons bound
(c) [16:254] Limitation -- conclusiveness limited to matters
encompassed by order
(d) Exceptions
1) [16:255] Certain unpaid creditors

2) [16:258] Extrinsic fraud or mistake

3) [16:259] Additional statutory fraud ground applicable to
representative's liability
(e) [16:259.5] Direct attack by appeal before finality
(f) [16:259.6] Compare -- inadvertently omitted property

1. General Considerations

a. [16:91] Purpose of representative's accountings: The accountings periodically filed by an estate representative allow the court to
examine the record of the estate's administration (assets, liabilities, receipts, disbursements, etc.) and afford the court the opportunity to pass
on the propriety and reasonableness of the representative's stewardship of the estate's assets. [See Christie v. Kimball (2012) 202
Cal.App.4th 1407, 1409, 136 Cal.Rptr.3d 516, 517 --'In probate court, nothing speaks more eloquently or provides more insight into factual
and legal issues than an accounting']
(1) [16:92] Typically, accountings are accompanied by the representative's prayer to distribute some or all of the estate
assets and frequently include a request to establish a trust (if any) contemplated by decedent's will.
(2) [16:93] In addition, at the time of an accounting, the representative is expected to report on the steps taken thus far
during the administration (the representative's 'report').
(3) [16:94] The proceeding, duly noticed, is also intended to give interested persons the opportunity to object or take
exception to the representative's handling of the estate. Accountings, therefore, normally present occasion for interested
persons to present surcharge claims on allegations of mismanagement, neglect or breach of fiduciary duty. (The failure
to file objections or exceptions, however, does not preclude the court from surcharging the representative for negligence
or misconduct on its own motion.)

b. [16:95] Types of accountings; when required: The representative must file an account when required under Ca Probate §§
10950-10954. Specifically, these types of accounts are required:
*1973 (1) [16:95.1] Final account: A final account is always required, along with a petition for final distribution,
'when the estate is in a condition to be closed.' [Ca Probate § 10951]
(2) [16:95.2] Interim accounts: Apart from the final account, the Code specifies several instances when an 'interim
account' may be required:
[16:96] Whenever required by the court, on its own motion or on petition by any interested person. [Ca Probate §
10950(a)]
[16:97] Upon an interested person's petition any time (a) after one year from the date the last interim account was filed
or (b) if no previous account was filed, after one year from issuance of letters. [Ca Probate § 10950(b)]
[16:98] Within 60 days after the personal representative resigns or is removed from office or his or her authority is
otherwise terminated. [Ca Probate § 10952]
[16:99] When a representative dies, 'absconds' or becomes incapacitated (i.e., lacks capacity to serve as personal
representative). [Ca Probate § 10953; and see further discussion at 16:138 ff.]
(3) [16:100] Compare -- optional accounts: Whether or not required, the filing of an account is deemed to include a
petition for approval of the account (Ca Probate § 1064(b)); hence, optional accounts may be prudent to 'insulate' the
representative from liability on matters fully disclosed therein (see 16:252 ff.).
(4) [16:100.1] Compare --'supplemental' (postfinal) accounts: 'Supplemental' accounts of receipts and
disbursements made after the period covered by a final account and 'supplemental' annual accounts relating to
undelivered or undisposed of property are not required. However, when the estate remains open notwithstanding an
otherwise 'final' account, the court or any interested person may always compel a supplemental account.
The personal representative's duties to wind up the estate following approval of the final account are codified in Ca
Probate §§ 11750 (responsibility for distribution), 11753 (filing receipts and discharge) and 11642 (after-acquired
property), discussed later in this Chapter.
[16:101 - 16:102] Reserved.

c. [16:103] IAEA not applicable: IAEA representatives are not offered any 'shortcuts' through the normal accounting procedures
and requirements. 'Settlement of accountings' is one of the actions requiring 'court supervision' notwithstanding IAEA authority. [Ca

Probate § 10501(a)(3), 9:21]

*1974 Moreover, IAEA representatives must list and describe in accounts any IAEA actions taken without court approval if notice of
the proposed actions was required (see 16:129). [Ca Rules of Court Rule 7.250]

d. [16:104] Waiver of account: The Code expressly authorizes the waiver of otherwise required accounts -- interim or final (Ca
Probate § 10954):
(1) [16:105] On written waiver, acknowledgment or provision for satisfaction: The personal representative is not
required to file an account if either of the following conditions is satisfied as to each person entitled to distribution from
the estate (Ca Probate § 10954(a)):

The person has executed and filed a written waiver or acknowledgment that his or her interest has been satisfied. [Ca Probate §
10954(a)(1)]

Adequate provision has been made for full satisfaction of the person's interest (except that this alternative does not apply to residuary
devisees or devisees whose interests are subject to abatement, payment of expenses, or accrual of interest or income; see Ca Probate §
§ 12000-12007). [Ca Probate § 10954(a)(2)]
(a) [16:106] Formalities: A § 10954 waiver or acknowledgment must be executed as follows:
1) [16:107] Competent adults: By the distributee, if he or she is a competent adult. [Ca Probate § 10954(b)(1)]
a) [16:107.1] Or designated attorney in fact: Or by a competent adult distributee's attorney in fact ... provided the
underlying power of attorney authorizes the attorney in fact to execute the waiver or acknowledgment. [Ca Probate §
10954(b)(7)]
2) [16:108] Minors: By a person authorized to receive money or property belonging to the minor (e.g., a parent or
guardian), if the distributee is a minor. When the waiver is executed by a guardian of the estate of the minor, there is no
need for the guardian to obtain approval of the court where the guardianship is pending. [Ca Probate § 10954(b)(2)]
3) [16:109] Conservatees: By the conservator of the estate, if the distributee is a conservatee. There is no need for the
conservator to obtain approval of the court where the conservatorship proceeding is pending. [Ca Probate § 10954(b)(3)]
4) [16:110] Trusts: By the trustee, if the distributee is a trust, but only if the named trustee's written acceptance of the
trust is filed with the court. (Prior approval from the court with jurisdiction over the trust under § 17300 et seq. is not
required.) [Ca Probate § 10954(b)(4)]
*1975 5) [16:111] Estates: By the personal representative, if the distributee is an estate. (Again, no approval from the
court where the estate is being administered is required.) [Ca Probate § 10954(b)(5)]
6) [16:111a] Unborn and unascertained beneficiaries: By the guardian ad litem (if any) appointed to represent a
distributee who is incapacitated, unborn or unascertained, or whose identity or address is unknown, or who is a
designated class of persons not ascertained or in being. [Ca Probate § 10954(b)(6); and see 3:558 ff. on appointment of
guardians ad litem]
7) [16:111.1] Creditors (insolvent estates): If the estate is insolvent, the creditors are in effect the estate's
beneficiaries. Therefore, an accounting may be waived only with the creditors' consent (and, as a practical matter, the
creditors are unlikely to give such consent).
In any event, note that a creditor whose interest 'has not been satisfied' may petition for an account pursuant to Ca
Probate § 10950. [Ca Probate § 10954(c)(2); and see 16:96]
(b) [16:111.2] FORMS:

Waiver of Account (Ca Probate § 10954), see 16:F.

Acknowledgment of Receipt of Estate Share (Ca Probate § 10954), see 16:G.

(2) [16:112] Limitation --'report' required in any event: Even if the account is waived, the representative must still
file a 'report' at the time the account would otherwise have been required, showing the amount of compensation paid or
payable to the representative and the estate attorneys, and setting forth the basis for calculating same. [Ca Probate §

10954(c)(1)]
(a) [16:112.1] Ca Rules of Court Rule requirements: Although the details of receipts and disbursements need not be
listed, Ca Rules of Court Rule 7.550(b) further requires that the report list 'the information required by law,' including
information as to:

creditors' claims;

sales, purchases or exchanges of assets;

changes in the form of assets;

assets on hand;

whether the estate is solvent;

detailed schedules of receipts and gains/losses on sales (where an amount other than the amount of the Inventory and Appraisal is used as
a basis for calculating fees and/or commissions);

*1976 costs of administration for which reimbursement is requested; and

the amount of any attorney's or representative's compensation, paid or to be paid, calculated as described in Ca Rules of Court Rule 7.705
; and

for decedent's estate proceedings commenced after 8/18/03, the information required by Ca Rules of Court Rule 7.552(a) and (b). [Ca
Rules of Court Rule 7.550(b)]
[16:113] Reserved.

e. [16:114] Compelling required account through contempt power: The representative (even if removed from office, see Ca
Probate § 10952) may be compelled to file a required account through exercise of the contempt power. [Ca Probate § 11050 -- court 'shall'
compel required account by 'punishment for contempt']
(1) [16:114.1] Citation procedure: Section 11050 proceedings are initiated by citation requiring the representative to
appear and show cause why he or she should not be punished for contempt for failing to file the requisite account. [Ca
Probate § 11051(a); and see 3:T for 'citation' form]
(a) [16:114.2] Issuance and service of citation: The citation is issued by the court clerk upon application of 'any
party.' [Ca Probate § 1240] It must be served on the representative in the manner provided by Ca Civ Pro § 413.10 et
seq. (3:521) at least five days before its return date (the date of the hearing). [Ca Probate §§ 1242, 11051(a)]
(b) [16:114.3] Evading service mandates removal: The representative's purposeful evasion of service of the citation
is cause for his or her mandatory removal from office. [Ca Probate § 11051(b); see 14:471]
(2) [16:114.4] Disposition: If the representative does not appear and file a required account in response to the § 11051
citation, the court, in its discretion, may punish the representative for contempt, or remove the representative from
office, or both. [Ca Probate § 11052; see 14:471]

f. [16:115] Compare -- account by third person in possession of estate property: To be distinguished from the representative's
accounts is Ca Probate § 8873, which empowers the court, on petition of the personal representative, to 'cite' any person having possession
or control of estate property to appear and account under oath for the property and actions taken with respect to that property. The citation is
enforceable by contempt. [Ca Probate § 8873; see discussion at 15:565, 15:877]

*1977 2. [16:116] Required Contents of Accounts: All accounts of a personal representative must report the various general
charges, credits and transactions in estate administration, as explained below (16:116.1 ff.).

a. [16:116a] Comprehensive statutory scheme: Ca Probate § 1060 et seq. is a comprehensive statutory scheme that governs all

accountings filed with the probate court -- i.e., these statutes apply to all guardianship, conservatorship, estate and trust accountings
submitted for court supervision and approval. The statutory format is mandatory and, except as otherwise specifically provided in the Code,
or unless 'good cause is shown therefor,' no additional information need be included in an account. [See Ca Probate § 1060]

b. [16:116.1] Basic components: An account must include both a 'financial statement' (16:116.2) and a 'report of administration' (
16:116.15) as provided in Ca Probate § 1060 et seq. and § 10900. [Ca Probate § 10900(a)]
(1) [16:116.2] Financial statement: The financial statement portion of the account must indicate the period covered
and contain a 'summary' (16:116.3) showing, to the extent applicable, all of the following:
[16:116.2a] The property on hand at the beginning of the period covered by the account. [Ca Probate § 1061(a)(1)]
(This entry must reflect the value of the property initially received by the fiduciary if a first account -- i.e., the inventory
and appraisal values in the case of an estate; or, it must reflect the property on hand at the end of a prior account if the
account in question is a subsequent account.)
[16:116.2b] The value of any assets received during the accounting period that are not assets on hand as of the
commencement of estate administration. [Ca Probate § 1061(a)(2)]
[16:116.2c] The amount of any receipts of income or principal (excluding those items listed above (16:116.2a ff.) and
any receipts from a trade or business). [Ca Probate § 1061(a)(3)]
[16:116.2d] Net income from a trade or business. [Ca Probate § 1061(a)(4)]
(The term 'net income' is utilized in accordance with general accounting principles. Thus, the summary need not include
'net income' as reflected in the tax returns governing the account period; Ca Probate § 1061(d).)
*1978 [16:116.2e] Gains on sales. [Ca Probate § 1061(a)(5)]
[16:116.2f] The amount of disbursements (excluding disbursements for a trade or business or for distributions). [Ca
Probate § 1061(a)(6)]
[16:116.2g] Loss on sales. [Ca Probate § 1061(a)(7)]
[16:116.2h] Net loss from a trade or business. [Ca Probate § 1061(a)(8)]
('Net loss' is calculated in accordance with general accounting principles. Thus, the summary need not include 'net loss'
as reflected in the tax returns governing the account period; Ca Probate § 1061(d).)
[16:116.2i] Distributions to beneficiaries, a ward or conservatee. [Ca Probate § 1061(a)(9)]
[16:116.2j] Property on hand at the end of the accounting period, stated at its carry value (i.e., inventory and appraisal
value in the case of an estate). [Ca Probate § 1061(a)(10)]
(a) [16:116.3] 'Summary' format: The statutorily-required 'summary' of the above (16:116.2a ff.) information must be
set forth substantially in the following format, exclusive of any inapplicable categories (Ca Probate § 1061(b)):

SUMMARY OF ACCOUNT
CHARGES
Property on hand at beginning of account (or Inventories) $________
Additional property received (or supplemental inventories) ________
Receipts (Schedule ________) ________
Gains on Sale or Other Disposition (Schedule ________) ________
Net income from trade or business (Schedule ________) ________
Total Charges: $________
CREDITS
Disbursements (Schedule ________) $________
Losses on Sale or Other Disposition (Schedule ________) ________
Net loss from trade or business (Schedule ________) ________
Distributions (Schedule ________) ________
Property on hand at close of account (Schedule ________) ________
Total Credits: $________

The account's total charges must equal its total credits. [Ca Probate §
1061(c)]

*1979 (b) [16:116.4] Supporting schedules: The 'summary' (16:116.3) must be supported by detailed schedules
showing the following:
[16:116.4a] Receipts, reflecting the nature and purpose of each item, source of receipt and date thereof. [Ca Probate §
1062(a)]
[16:116.4b] Disbursements, including the nature and purpose of each item, name of payee and date thereof. [Ca
Probate § 1062(b)]
[16:116.4c] Net income or loss from trade or business (which will be sufficient if information disclosed on Schedule
'C' or 'F' of Federal Income Tax return for the trade or business is provided). [Ca Probate § 1062(c)]
[16:116.4d] Calculation of gains or losses on sale or other dispositions. [Ca Probate § 1062(d)]
[16:116.4e] Distributions of cash or property to beneficiaries, a ward or conservatee, showing the date and amount of
each distribution at its carry (i.e., inventory) value. [Ca Probate § 1062(e)]
[16:116.4f] Itemized list of property on hand, describing each item at its carry (i.e., inventory) value. [Ca Probate §
1062(f)]
(c) [16:116.5] Additional schedules: The Code requires the following additional schedules:
1) [16:116.6] Estimated market value of assets on hand: For all accounts, a schedule showing the estimated market
value of assets on hand at the end of the accounting period; and a schedule of the estimated market value of the assets on
hand at the beginning of the accounting period for all accounts subsequent to the initial account. (The personal
representative may make a 'good faith' estimate as to the value of real estate, closely held businesses and other assets
without a readily ascertainable market value.) [Ca Probate § 1063(a)]
2) [16:116.7] Purchases, etc.: A schedule of purchases or other changes in the form of assets occurring during the
period of the account. (No reporting is required for transfers between cash or accounts in a financial institution or money
market mutual funds as defined in Ca Probate § 8901(d); 6:58.5.) [Ca Probate § 1063(b)]
3) [16:116.8] Allocation of receipts/disbursements between principal and income: An allocation of receipts and
disbursements between principal and income in any case where a decedent's estate (or a trust) will be distributed to an
income beneficiary. [Ca Probate § 1063(c)]
*1980 4) [16:116.9] Income, disbursements, etc. re specifically devised property: If there is specifically devised
property, an additional schedule accounting for income, disbursements and sale proceeds pursuant to Ca Probate §
12002 (specific devises) and § 16340 (trust distributions). [Ca Probate § 1063(d)]
5) [16:116.10] Interest calculations: If any interest has been or is to be paid under Ca Probate §§ 12003-12005
(general pecuniary devises, annuities, maintenance devises) or Ca Probate § 16340 (trust distributions), a schedule
showing the interest calculation. [Ca Probate § 1063(e)]
6) [16:116.11] Proposed distributions: If the accounting contemplates a proposed distribution, a schedule setting forth
that distribution, including the allocation of income required under Ca Probate § 12006 (to residuary/intestate
distributees). [Ca Probate § 1063(f)]
a) [16:116.12] Between trusts: If the distribution requires an allocation between trusts, the allocation must be set forth
on the schedule, unless the allocation is to be made by a trustee after receipt of the assets. And, if the distribution
requires valuation of assets as of the date of distribution, the schedule must set forth the fair market value of those
assets. [Ca Probate § 1063(f)]
7) [16:116.13] Liabilities: A schedule of the estate's liabilities (excluding current and future periodic payments -- e.g.,
rent, salaries, utilities, etc.) setting forth (i) all liabilities that are a lien on estate assets; (ii) taxes due but unpaid as
shown on filed returns or assessments received subsequent to filing the returns; (iii) all notes payable; (iv) any
judgments for which the estate is liable; and (v) any other material liability. [Ca Probate § 1063(g); see also 16:116.15]
Again, periodic payments and other recurring expenses need not be scheduled. [Ca Probate § 1063(g)]
[16:116.14] Reserved.
(2) [16:116.15] Report of administration; statement of liabilities: A report of administration is the second
component of an account (16:116.1). The statement (or schedule) of liabilities (16:116.13) is contained in this report
and must include the following additional information:
[16:116.15a] Whether Ca Probate § 9050 notice to creditors was given (8:5.1). [Ca Probate § 10900(b)(1)]
*1981 [16:116.15b] All creditor claims filed, including the date of filing, claimant's name, claim amount and action
taken. [Ca Probate § 10900(b)(2)]
[16:116.15c] All creditor claims not paid, satisfied or adequately provided for, indicating whether any claims are due

and the due date, the date any notices of rejection were given and whether any creditors have brought actions on the
claims. (The statement must also identify any real or personal property that is security for a claim, whether by mortgage,
trust deed, lien or other encumbrance.) [Ca Probate § 10900(b)(3)]
[16:116.16 - 16:116.20] Reserved.

c. [16:116.21] General guidelines for account reporting: Scattered throughout the Code are various provisions impacting the
matters that must be disclosed in the accounting process. In addition to the requirements of § 1060 et seq. (16:116a ff.), these statutes
should be kept in mind when preparing any account:

(1) Charges and credits

(a) [16:117] Property, income and profits of estate: Personal representatives are generally chargeable in their accounts
with all estate property that comes into their possession. They may not profit personally from any increase in the estate
during administration and, thus, must account for all of the income, issues and profits of the estate, including the proceeds
of property sold during administration. [Ca Probate §§ 1060 et seq. (16:116a ff.), 9600, 9650(a)(1) & (2), 10005(a); and
see 15:787 ff.]
(b) [16:117.1] Losses to estate: Personal representatives are not chargeable with losses occasioned by a decrease in value
or destruction of any assets of the estate except to the extent the losses resulted from a breach of the representative's
fiduciary duty. Nor are representatives chargeable with losses sustained when estate property is sold for less than its
appraised value, provided the sale was properly conducted pursuant to Code requirements (see Ch. 13). [Ca Probate §§
9657, 10005(b)]

Cross-refer: When the estate suffers loss from a representative's breach of fiduciary duty, the representative is exposed to surcharge
liability. Surcharge issues are explained in detail at 16:177 ff.
*1982 (c) [16:117.2] Allowance of expenses of administration: The personal representative 'shall be allowed' on the
account 'all necessary expenses in the administration of the estate, including, but not limited to, necessary expenses in
the care, management, preservation, and settlement of the estate.' [Ca Probate § 11004]
(2) [16:118] Cash receipts and disbursements: As noted above (16:117 ff.), each account must show the amount of
money received and expended by the representative since the most recent prior account was filed. [Ca Probate §§ 1061-
1062]
(a) [16:119] Cash properly invested: Each account should show that, for the period covered by the account, the
representative kept all estate cash in his or her possession properly invested in compliance with Ca Probate § 9652. As a
general rule, surplus cash not reasonably necessary for 'orderly estate administration' must be deposited in interest-
bearing accounts or invested as authorized by law, except to the extent that decedent's will otherwise provides. [Ca
Probate § 9652; see detailed discussion at 13:433 ff.]
1) [16:120] Investment obligations of trust company representatives: A bank trust company personal representative
may, in the exercise of 'reasonable judgment,' deposit estate funds in an account in any department of the corporation of
which it is a part. But in such event, the trust company is ordinarily chargeable with interest on the deposit at the rate
prevailing among banks 'of the locality' on such deposits. [Ca Probate § 9705(a); and see, e.g., Estate of Smith (1931)
112 Cal.App. 680, 683-685, 297 P 927, 929-930]
However, when deemed to be to the estate's 'advantage,' a bank trust company personal representative may properly
deposit in a noninterest-earning checking account with its own company the amount of cash 'reasonably necessary' for
orderly estate administration. (In this case, of course, the trust company's account should report the reasons why a
noninterest-earning deposit was to the estate's 'advantage.') [Ca Probate § 9705(b); see 13:439]
(b) [16:121] Supporting documents: The personal representative must keep all 'documents' (e.g., cancelled checks,
invoices and receipts) supporting the account. These documents must be produced for inspection and audit by the court
or interested persons if so ordered by the court or if an interested person files a written request therefor with the clerk
and serves a copy on the personal representative. [Ca Probate § 10901]
*1983 [16:122] PRACTICE POINTER: Section 10901 contains no express time limits on the duty to retain and
produce supporting documents. As a matter of prudence, however, the representative should keep the supporting
documents as long as any question may arise concerning his or her stewardship of the estate. (Also see 16:252 ff. on
finality of order approving account.)

[16:123 - 16:126] Reserved.

(c) [16:127] Allowance of debts paid without verified creditor claims: As discussed in Ch. 8, personal
representatives act at their peril in paying creditor claims that were not properly filed, allowed or approved (see 'practice
pointers,' 8:70.20, 8:257.3). However, there are two Code provisions authorizing the court to approve the payment of
debts without verified claims:
1) [16:127.1] Account reporting 'good faith' payment of 'justly due' debts: If the representative proves that the debt
was 'justly due,' that payment was made in 'good faith,' that the amount paid did not exceed the amount 'reasonably
necessary' to satisfy the debt, and that the estate is solvent, the court 'shall allow' a debt paid during the Ca Probate §
9154 four-month claim-filing period even though the claim was not properly 'filed and established.' [Ca Probate § 11005
; see also Ca Probate § 11422(d) --'Nothing in this section precludes settlement of an account of a personal
representative for payment of a debt made without prior court authorization'; and Estate of Sturm (1988) 201
Cal.App.3d 14, 17-18, 246 Cal.Rptr. 852, 853-854 -- former § 929 (now § 11005) empowers court to approve
representative's partial payments of 'bona fide' claims during claim-filing period and to treat such payments as
'establishing' those claims even though no formal claim filed]
2) [16:127.2] Account reporting payment pursuant to written demand within claim-filing period: If a written
demand for payment was made within the post-letters four-month claim-filing period, the representative has the option
of treating the demand as a filed and established claim ('waiving formal defects') by paying the amount demanded before
the expiration of 30 days after the four-month period. The payment will be approved on the representative's accounting
if the debt was 'justly due' and paid in 'good faith,' the amount paid was the 'true amount' owing over and above all
payments and offsets, and the estate is solvent. [Ca Probate § 9154, discussed in detail at 8:70.1 ff., 8:257.2; also see
Estate of Sturm, supra, 201 Cal.App.3d at 17-18, 246 Cal.Rptr. at 853-854]
*1984 (d) [16:127.3] Payment of less than full claim: If the personal representative pays a claim for less than its full
amount, the representative's accounts may be credited only for the amount actually paid. [Ca Probate § 9839]
[16:128] Reserved.
(e) [16:129] IAEA cases; additional allegations required by Ca Rules of Court Rule: IAEA representatives must
list and describe in their accounts any IAEA actions taken without court approval if notice of the proposed actions was
required. The description must indicate:

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

Whether any objections were received. [Ca Rules of Court Rule 7.250(a)]
IAEA acts properly listed and described in earlier accountings, reports or petitions for distribution and approved by the
court need not be listed and described again. [Ca Rules of Court Rule 7.250(b)]

3. Procedure on Interim Accountings

a. [16:130] The process generally: Interim accounts ordinarily involve these related components:

(1) The 'account'

(a) [16:131] Financial statement: The financial statement (16:116.2 ff.) is comprised of a summary statement and
attached schedules and exhibits. [Ca Probate §§ 1061-1062]
Local rules may specify a particular format and impose other technical requirements; but local rules may not validly
narrow (or, generally, expand) the statutory content requirements (16:140 ff.).
(b) [16:132] Report of administration: In addition to showing the 'liabilities' of the estate, the report of administration
is used to explain all items that are not self-explanatory from the schedules and exhibits (16:116.4 ff.). It may be (and

ordinarily is) set forth in narrative form.

(2) [16:133] Petition for settlement: The account itself and its attachments are filed with a 'petition for settlement' of the
account.
However, a formal 'petition for settlement' is not required. The filing of an account is deemed to include a petition
requesting its approval and may include additional petitions for authorization, instruction or confirmation of Code-
sanctioned actions including, but not limited to, a request for court-ordered compensation to the personal representative
and his or her attorney. [Ca Probate § 1064(b)]

*1985 b. [16:134] When to file: An interim (or 'current') account must be filed whenever it is required under Ca Probate § 10950 et
seq. (see 16:95.2 to 16:99). As stated, the obligation to file a required account is enforceable through the court's contempt power (see
16:114.1 to 16:114.4).
[16:135] PRACTICE POINTER: Prudent representatives rarely await a court order or interested person's petition
before filing their accounts. Generally, representatives should account on their own initiative whenever the affairs of the
estate have been sufficiently settled to warrant an account ... and particularly: (i) when a preliminary distribution is
desired (especially if the proposed distribution is to a testamentary trust), (ii) when administration is partially complete
and attorney's and representative's compensation on account is sought, or (iii) when the estate is ready to be closed (in
which case, of course, the account is a 'final account').
[16:136 - 16:137] Reserved.
(1) [16:138] Special rules where account required from deceased, incapacitated or 'absconding' representative:
If the representative dies or becomes incapacitated and a 'legal representative' is appointed (i.e., personal representative
or conservator), the 'legal representative' must file an account no later than 60 days after appointment, unless the court
allows an extension of time. [Ca Probate § 10953(b)]
If no 'legal representative' is appointed for a deceased or incapacitated representative, or if the representative 'absconds,'
the court may compel the former representative's attorney (or the estate's attorney of record) to file an account. [Ca
Probate § 10953(c)]
(a) [16:139] Manner of accounting and compensation: The 'legal representative' or attorney must exercise
'reasonable diligence' in preparing the account. The account may be verified on 'information and belief' and the court
'shall settle the account as in other cases.' The court must allow as a charge against the estate 'reasonable compensation'
to the 'legal representative' or attorney for preparing the account. ('Compensation' in this context includes compensation
for paralegal services rendered under the attorney's direction and supervision.) [Ca Probate § 10953(d)]
[16:139.1 - 16:139.4] Reserved.
*1986 (2) [16:139.5] Special rule re conservatorships and guardianships: When a personal representative receives
assets from a deceased conservatee's conservator or deceased ward's guardian, the representative may incorporate by
reference any accounting provided by the conservator or guardian for the decedent for the period subsequent to the date
of death. Moreover, the personal representative is entitled to rely on the accounting and has no duty to independently
investigate or verify the transactions reported therein. [Ca Probate § 10902; Conservatorship of Hume (2006) 139
Cal.App.4th 393, 396, 42 Cal.Rptr.3d 796, 798, fn. 3 (citing text)]

c. [16:140] Preparing interim account -- form, reports, schedules and exhibits (Ca Rules of Court Rule and local rule
requirements): Apart from the general statutory content rules explained above (16:116 ff.), the content and format of current (and final)
accounts is left to the California Rules of Court and local court rules and policies. These rules should be consulted before preparing any
accounts.
[16:140.1] CAVEAT RE LOCAL RULES: To the extent local court rules on the preparation of accounts purport to
require anything less than the Code's specific content requirements, they are of no effect; Ca Probate § 1060 et seq. and
§ 10900 must be followed (16:116.1 ff.). The representative's accounts must contain the statutory statements, summaries
and schedules described therein.
Note also that except as otherwise specifically provided in the Code, or unless 'good cause is shown therefor,' no
additional information need be included in an account (see Ca Probate § 1060). Thus, to the extent local court rules
purport to require anything more than the Code's specific content requirements, they may well be viewed as optional.
Still it is possible a court will find 'good cause' for requiring the additional information. Therefore, careful practice
dictates erring on the side of overinclusiveness.

(1) [16:141] General format: Local rules typically mandate an account format that more or less mirrors the
requirements of Ca Probate § 1060 et seq.; see 16:116.1 ff.
[16:142 - 16:149] Reserved.
(2) [16:150] Allegations regarding creditor claims: It is not sufficient in reports accompanying accounts, or in reports
where an accounting is waived (16:104), to allege simply that all claims have been paid. Rather, petitioner must:

*1987 State whether Ca Probate § 9050 notice to creditors was given;

List the claims presented during the accounting period (showing the claimant, date filed, amount claimed and disposition); and

Set forth all creditor claims not paid, satisfied or adequately provided for (indicating whether any claims are due and the due date, the
date any notices of rejection were given, and whether any creditors have brought actions on the claims). Also, any estate property that
is security for a claim must be identified. [See Ca Probate § 10900(b)(1)-(3); L.A. Super.Ct. Rule 4.65; O.C. Super.Ct. Rule 608.08;
S.D. Super.Ct. Prob.R. 4.15.3]
(3) [16:151] Representative's claims; debts paid by representative from own funds: A personal representative's
claim for services rendered to decedent must be supported by detailed invoices or other itemization of the services. [See
L.A. Super.Ct. Rule 4.57(a)(1); see also 8:127 ff. re claims by representative or representative's attorney]
The same rule applies to estate debts and funeral expenses paid by the representative from his or her own funds. In this
case, a claim for reimbursement must be filed in the usual way, supported by 'detailed invoices or other evidence of
payment.' [L.A. Super.Ct. Rule 4.57(a)(2); O.C. Super.Ct. Rule 605.06]
(4) [16:151.1] Payment of unverified claims: As discussed in Ch. 8, personal representatives act at their peril in
paying creditor claims that were not properly filed, allowed or approved (8:70.20, 8:257.3). Nevertheless, the court may
approve payment of a debt for which a verified claim has not been filed, if the accounting shows the debt was paid
during the time within which a claim could have been filed and the estate is solvent (16:127.1 to 16:127.2).
But such approval is discretionary with the court and must be justified by allegations in a verified petition or by
testimony in open court as to the facts referred to in Ca Probate § 11005 (16:127.1). [O.C. Super.Ct. Rule 608.08; S.D.
Super.Ct. Prob.R. 4.15.4; see also Estate of Sturm (1988) 201 Cal.App.3d 14, 18, 246 Cal.Rptr. 852, 854 (decided
under predecessor statute)]
*1988 (5) [16:152] Acts taken under IAEA: IAEA representatives must list and describe in their accounts any IAEA
actions taken without court approval if notice of the proposed actions was required. The description must indicate:

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

Whether any objections were received. [See Ca Rules of Court Rule 7.250(a)]
IAEA acts properly listed and described in earlier accountings, reports or petitions for distribution and approved by the
court need not be listed and described again. [Ca Rules of Court Rule 7.250(b)]
(6) [16:153] Bank letters: All interim accounts by individual representatives must be supported by bank letters
verifying the balances on hand in bank accounts. The letters must be the originals, signed by an officer with authority to
sign; and they must show the vesting (title) of the account, and the date and amount of the balance. [S.F. Uniform Rule
14.62; S.D. Super.Ct. Prob.R. 4.15.2A]
(a) [16:154] Bank statement in lieu of signed letters: Original bank statements are acceptable as an exhibit in lieu of
signed bank letters, if they contain all of the information required above (16:153). [L.A. Super.Ct. Rule 4.42(a); S.F.
Uniform Rule 14.62; S.D. Super.Ct. Prob.R. 4.15.2C -- appropriate balance must be clearly highlighted or otherwise
marked]
(b) [16:155] Reconciliation: Balances shown in the representative's account must be verified by the bank letters or

statements. [L.A. Super.Ct. Rule 4.42(b); S.D. Super.Ct. Prob.R. 4.15.2D; S.F. Uniform Rule 14.62]
(7) [16:156] Cross-refer -- accountings on final distribution: For final accounts accompanying petitions for final
distribution, there are additional requirements; see 16:212 ff.
[16:157] CAVEAT RE LOCAL RULES: The above local rules are representative of what may be required. Each
county, or branch within a county, may have different or additional rules. Thus, counsel are cautioned to consult the
specific current rules in effect in the county where the particular probate is pending.
Again, however, bear in mind that Ca Probate § 1060 states 'except as specifically provided elsewhere in [the Probate
Code], or unless good cause is shown therefor, no information in addition to that required in [Ca Probate § 1060 et seq.]
need be in an account.' This statute calls into question various local court rules purporting to require information beyond
the scope of the Probate Code.
*1989 Still, it is possible a court will find 'good cause' for requiring the additional information. Thus, careful practice
dictates erring on the side of overinclusiveness.

d. [16:158] Preparing petition: Although each account is deemed to include a petition for the account's 'approval' (Ca Probate §
1064(b), 16:133), accounts are customarily presented in conjunction with a verified petition for 'settlement' of the account. 'Settlement'
refers generally to the court's approval or disapproval of the items and amounts reported in the account. The account's financial statement
(including schedules and exhibits) and report are ordinarily attached to the petition and filed therewith.
(1) [16:159] Caption: The caption on the petition must clearly and completely identify all of the relief sought. [Ca
Rules of Court Rule 7.102] For example:

'FIRST ACCOUNT CURRENT AND REPORT OF STATUS OF ADMINISTRATION OF ... (representative) AND
PETITION FOR SETTLEMENT THEREOF AND ... (other relief sought ... e.g., FOR ALLOWANCE ON ACCOUNT OF
REPRESENTATIVE'S COMPENSATION AND ATTORNEYS' COMPENSATION, FOR INSTRUCTIONS, FOR
PRELIMINARY DISTRIBUTION, etc.)'

(2) [16:160] General content: The opening paragraphs of the petition allege the identifying information about the
estate administration: i.e., decedent's death, testate or intestate, and representative's appointment and date letters were
issued. The petition then continues with the 'report,' explaining the status of the estate and the items on the account, its
schedules and exhibits. It concludes with a 'prayer' for the relief requested (settlement, allowance and approval of the
account, confirmation of representative's acts and proceedings, allowance of fees and commissions, etc.).
(3) [16:160.1] Statutorily-required content: In addition to the foregoing general contents, Ca Probate § 1064 requires
that a petition for approval of an account or a report accompanying the petition contain all of the following:
(a) [16:160.2] Description of sales, purchases, etc.: A description of all sales, purchases, changes in the form of assets
or other transactions occurring during the period of the account that are not otherwise readily understandable from the
schedule (Ca Probate § 1064(a)(1));
(b) [16:160.3] Unusual items: An explanation of any unusual items appearing in the account (Ca Probate §
1064(a)(2));
*1990 (c) [16:160.4] Compensation paid: A statement of all compensation paid from assets subject to the account to
the personal representative or his or her attorney(s), other than pursuant to a prior court order (Ca Probate § 1064(a)(3));
(d) [16:160.5] Relationship disclosures: A statement disclosing any family/affiliate relationship between the personal
representative or his or her attorney(s) and any agent hired by the personal representative during the accounting period (
Ca Probate § 1064(a)(4));
(For this purpose, 'family' means a relationship created by blood or marriage; 'affiliate' means an entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the personal
representative. Ca Probate § 1064(c).)
(e) [16:160.6] Cash investment disclosures: An allegation disclosing whether all of the cash has been invested and
maintained in interest-bearing accounts or investments authorized by law or the governing instrument, except cash
reasonably necessary for the orderly administration of the estate (Ca Probate § 1064(a)(5)).

e. [16:161] Notice of hearing on petition for settlement of account: When the interim account and petition for its settlement are
filed, the court clerk will set a hearing date. Minimum 15 days' notice of hearing on the petition must be given in the manner prescribed by

Ca Probate § 1220 (amended Stats. 2017, Ch. 319), which in turn requires delivery (personally, electronically, or by mail) pursuant to Ca
Probate § 1215 (amended Stats. 2017, Ch. 319) (3:466 ff.) to the following persons who are not themselves a petitioning party:

Each person entitled to notice pursuant to Ca Probate § 1220 (3:468 ff.). [Ca Probate § 11000(a)(1)]

(Remember that a copy of the petition and account must also be delivered to persons who have requested special notice, unless the court
excuses special notice; 3:512. And, if a request for special notice has been withdrawn or special notice has been waived, the
withdrawals and waivers should be filed at or before the hearing when proof of service is made; 16:26.1, 16:60.)

AND

Each 'known' heir and devisee 'whose interest in the estate would be affected by the account.' [Ca Probate § 11000(a)(2) & (3); and see
3:470 to 3:470.3, 3:471.2 as to who are 'known' heirs and devisees]

*1991 AND

The Attorney General at the Sacramento Attorney General's office, if any portion of the estate is to escheat to the State and the State's
'interest would be affected by the account.' [Ca Probate § 11000(a)(4)]

(It is helpful to send a copy to the State Controller's office, Legal Division, 300 Capitol Mall, Suite 1850, Sacramento, CA 95814; see also
16:247 and 16:483 ff.)

AND

If the estate is insolvent, each creditor who has filed a claim that is allowed or approved but is unpaid in whole or in part. [Ca Probate §
11000(a)(5)]
(1) [16:162] Form of notice: The notice is given on the general Notice of Hearing -- Decedent's Estate or Trust form (
see 3:O). Proof of service is made on the reverse side of that form.

(2) Special content requirements

(a) [16:163] Compensation requested: If all or a portion of the compensation to be paid to the personal representative
or the estate attorney is requested in the petition for approval of the account, the notice must so state. [Ca Probate §
11000(b)]
(b) [16:163.1] Final account: Additionally, if the account is a final account and is filed together with a petition for final
distribution of the estate, the notice must so state. [Ca Probate § 11000(c)]

f. Hearing
(1) [16:164] Court's obligation to scrutinize account: The probate court is charged with the duty of scrutinizing the
representative's accounts and determining all issues raised by a petition for settlement. [McLellan v. McLellan (1941) 17
Cal.2d 552, 554, 110 P.2d 1034, 1035-1036; Estate of Fain (1999) 75 Cal.App.4th 973, 991, 89 Cal.Rptr.2d 618, 631
(citing text); see also Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427-428, 78 Cal.Rptr.3d 838, 845-846 (same re
trusts); Conservatorship of Moore (2015) 240 Cal.App.4th 1101, 111, 193 Cal.Rptr.3d 179, 188 -- court must determine
reasonableness of trustee's compensation regardless of whether beneficiary has complained]
This duty requires the court not only to approve each account's arithmetical accuracy, but also to decide all underlying
issues raised by any objections to or contest of the account (16:166 ff.) ... including whether the estate has been
mismanaged (i.e., if raised by objection to the account, the court must rule on surcharge issues, 16:177 ff.). [See
generally, McLellan v. McLellan, supra]
*1992 (2) [16:164.1] Conduct of hearing: The court may conduct any hearing that may be necessary to settle the
account, and may 'cite' the personal representative to appear before the court for examination. [Ca Probate § 11002(a)]
(a) [16:164.2] Referees: The court may appoint one or more referees to examine the account and make a report, subject
to court confirmation. The court may allow reasonable compensation to the referee to be paid by the estate. [Ca Probate

§ 11002(b)]
(b) [16:164.3] Other 'effectuating' orders: The court also has authority to make any other orders deemed necessary to
effectuate settlement of the account. [Ca Probate § 11002(c)]
(3) [16:164.4] No right to jury trial: Factual issues raised by the petition (or objections, 16:166 ff.) are decided by the
court. There is no right to jury trial in contested accounting proceedings, or any other probate proceedings except as
expressly provided in the Code. [Ca Probate § 825]

g. [16:165] Order settling account: Following the hearing, the court issues its order settling and approving the account, which also
includes incidental orders for other approved relief that was requested and properly noticed (e.g., for allowance of representative's and
attorney's compensation). The order and its 'conclusive effect' (Ca Probate § 7250(a)) are discussed in connection with final accounts; see
16:249 ff.

4. [16:166] Contesting Accounts: All matters relating to an account (interim or final) may be 'contested for cause shown ...' [Ca
Probate § 11001]

a. Who may participate in contest

(1) [16:167] Objections raised by 'interested persons': Challenge to an account ('objections' or 'responses') may be
raised by any 'interested person.' [See generally, Ca Probate § 1043 (governing the hearing of all probate matters)]
(a) [16:167a] 'Interested persons' generally -- dependent on nature of contest: Whether a person is 'interested' for
this purpose turns on the nature of the particular contest. For example, on surcharge issues (16:177), creditors,
beneficiaries, heirs and their assignees, testamentary trustees and successor representatives may all be 'interested persons'
entitled to seek a surcharge order against the representative by filing 'written responses' (or 'objections') to his or her
account (see generally, Ca Probate § 48, 3:83.1 ff.). [E.g., Estate of McMillin (1956) 46 Cal.2d 121, 126-128, 292 P.2d
881, 884 -- tax consultant entitled to payment under former Ca Probate § 902 (now § 10801) had standing to contest
account; Estate of Reinicke (1941) 44 Cal.App.2d 271, 273-274, 112 P.2d 311, 312 -- unpaid creditor of distributee with
execution lien against estate could file objections]
*1993 (b) [16:167.1] Federal government: Also, where a U.S. Government department or bureau has made or
awarded compensation, pension, insurance 'or other allowance' to the estate, the department or bureau has the same right
as an 'interested' person to contest the representative's account. [Ca Probate § 7280(c); and see 3:84.1]
(2) [16:167.2] Account defended by 'interested persons' (sureties, etc.): Conversely, any 'interested person' (not
limited to the personal representative) also has standing to appear and participate in defense of a challenged account. For
example, in a contest seeking a surcharge order, the personal representative's surety is entitled to participate as an
'interested person' to ensure that the representative's side of the case is adequately presented and thus to minimize its
own exposure on the representative's bond (the surety would have to pay on the bond if the representative were found
liable on the surcharge issue). [See Estate of Davis (1990) 219 Cal.App.3d 663, 668, 268 Cal.Rptr. 384, 388]

b. [16:168] Form of objections: Objections (or responses) may be made in one of two ways:

In writing 'at or before the hearing' (Ca Probate § 1043(a)); or

Orally 'at the hearing' (Ca Probate § 1043(b)). [Estate of Lensch (2009) 177 Cal.App.4th 667, 675, 99 Cal.Rptr.3d 246, 253]

FORM: Sample Objections to Representative's Account, see 16:H.

(1) [16:168.1] Court discretion to order continuance after oral objections: If objections (or responses) are made
orally at the hearing, the court has discretion either to hear and determine the objections or grant a continuance to permit
the filing of a written response or objection. [Ca Probate § 1043(b); Forthmann v. Boyer (2002) 97 Cal.App.4th 977,
988, 118 Cal.Rptr.2d 715, 723]
(2) [16:168.2] Request for continuance not an objection: Merely requesting a continuance for the purpose of making
a written response or objection is not itself considered a 'response or objection'; nor is a response or objection presumed
from the failure to make a response or objection during the time allowed. [Ca Probate § 1043(c); Forthmann v. Boyer,
supra, 97 Cal.App.4th at 988, 118 Cal.Rptr.2d at 723]

[16:168.3] PRACTICE POINTER: Notwithstanding the Code's authorization of oral objections and responses,
provided there is adequate notice it is clearly better practice to prepare and file written objections (or responses) in
advance of the hearing (indeed, many local court rules state a preference for written, rather than oral, objections to all
petitions; see L.A. Super.Ct. Rule 4.28). Then, if additional time is needed to prepare the case, request a continuance at
the earliest opportunity (see 16:169).

*1994 c. [16:169] Time-frame; continuances: Hearings set on minimum 15 days' notice might not give interested persons adequate
time to study the account and prepare objections. Accordingly, in many cases, a continuance of the hearing will be needed. [See Ca Probate
§ 1045 -- court may continue probate hearings 'in the interest of justice']

Local rules typically recognize the need for such continuances; but counsel should be sure to request a continuance as soon as the
need becomes apparent -- i.e., do not wait until the date of the hearing! [See L.A. Super.Ct. Rule 4.28]
(1) [16:169.1] Waiver by failure to timely serve and file objection/response after request for continuance: If the
court continues a matter to allow a written objection or response and the objecting or responding party fails to timely
serve and file same, the court may deem the objection or response waived. [Ca Rules of Court Rule 7.801]
[16:169.2 - 16:169.4] Reserved.

d. [16:169.5] No 'preobjection' discovery: Interested persons who wish to conduct discovery concerning a representative's account
must first make an objection or response pursuant to Ca Probate § 1043. It is not proper simply to request a continuance of the hearing in
order to conduct discovery. [Forthmann v. Boyer, supra, 97 Cal.App.4th at 985, 988, 118 Cal.Rptr.2d at 721, 723]

'Absent an objection or response, even on information and belief, there is no issue joined by which the relevancy of any proposed
discovery may be judged.' [Forthmann v. Boyer, supra, 97 Cal.App.4th at 988, 118 Cal.Rptr.2d at 723-724 -- because no objection or
response, request for continuance of hearing on trustee's interim account to conduct discovery properly denied]

e. [16:170] Matters objectionable: Objections to an account may be raised for a variety of reasons (broadly, 'for cause shown,' Ca
Probate § 11001) ... including, but not limited to, the following:
(1) [16:171] Valuation of estate property: Objection may be made to the value of property 'for purposes of
distribution.' [Ca Probate § 11001(b) (emphasis added)]
(a) [16:172] Distinguish -- contesting values on inventory and appraisal: Section 11001(b) permits a contest of the
value of property for purposes of distribution only -- not to contest an inventory and appraisal. (The distinction is subtle
but may be significant if, for example, date of distribution values control -- e.g., a marital deduction distribution.)
*1995 A separate procedure is authorized, pursuant to Ca Probate § 8906, for a direct contest of appraisal values; and
these objections must be filed before the hearing on a petition for final distribution (see discussion at 6:122 ff.). [See Ca
Probate § 11001, Law Rev. Comm'n Comment]
(2) [16:173] Validity of allowed or approved claim: A properly filed claim that is allowed by the representative or
approved by the court is deemed 'established' and thus eligible for payment in due course of administration. [Ca Probate
§ 9003; see 8:248 ff., 16:360 ff.] However, the validity of an allowed or approved claim not reported in a previous
account and not established by judgment may still be contested at any time before settlement of the account in which the
claim is first reported as an allowed or approved claim. [Ca Probate §§ 11001(a), 9254]
(a) [16:173.1] Burden of proof: The person contesting the allowed or approved claim ordinarily bears the burden of
proving its invalidity ... except that the burden of proof is on the representative if the representative acted under the
IAEA. [Ca Probate § 9254(a)]
[16:174] Reserved.
(b) [16:175] Compare -- creditor rights where claims omitted from account: As a general rule, following
settlement of the representative's accounts and an order for payment of debts and distribution of the estate, creditors who
are not paid -- whether or not their claims are included in the order for payment -- have no right to require contribution
from creditors who are paid or from the estate's distributees; the unpaid creditors' sole recourse (if any) is against the
personal representative and the sureties on the representative's bond (and even that recourse is limited by the immunity
shield of Ca Probate § 9053, 8:7.1 ff.). [Ca Probate § 11429(a) & (b)]
However, a narrow statutory exception applies to ensure compliance with creditors' constitutional due process rights:

Unpaid creditors who were known to or reasonably ascertainable by the personal representative within the claim-filing
period but who were not given notice to file their claims and who (either personally or through their attorneys) were not
aware of the estate administration before the court's final distribution order may reach distributees for a specified 'pro
rata' share of their claims (so long as the Ca Civ Pro § 366.2 statute of limitations on their claims is still running and the
claims were 'not merely conjectural'). [Ca Probate §§ 11429(a), 9392; and see further discussion at 8:260 ff., 16:383 ff.]
*1996 (3) [16:176] Validity of IAEA actions: Actions taken by the representative under the Independent
Administration of Estates Act and not previously authorized or approved by the court may be contested in an
accounting, subject to Ca Probate § 10590 (16:176.2 ff.). [Ca Probate § 11001(c)]
(a) [16:176.1] Purpose: If an IAEA representative did not seek prior court approval or give notice of proposed action
in regard to various IAEA actions, a proceeding to settle an account, where the IAEA actions are reported, may be an
interested person's first opportunity to learn about those actions and, hence, the first opportunity to contest them.
(b) [16:176.2] Exception -- notice of proposed action already given: But IAEA actions may not be challenged at the
accounting stage by a contestant who had previous opportunity to raise an objection: i.e., interested persons are deemed
to waive the right to contest an IAEA action where either of the following occurred (Ca Probate § 10590(a)):
[16:176.3] The person actually received notice of proposed action before the deadline for objection expired and failed
to object. [Ca Probate § 10590(a)(1) & (c)]
OR
[16:176.4] The person waived notice or consented to the proposed action pursuant to Ca Probate §§ 10582-10584 (
9:72.1 ff.). [Ca Probate § 10590(a)(2)]
Cross-refer: For a detailed discussion of court review of IAEA actions, see 9:72 ff.

f. [16:177] Surcharge litigation: Objections to accountings commonly raise surcharge claims against the representative for
purported acts of misconduct, neglect, waste, mismanagement or other breach of fiduciary duty. These grounds fall under the general
category of 'all matters relating to an account' which may be contested 'for cause shown.' [See Ca Probate § 11001; Estate of Fain (1999) 75
Cal.App.4th 973, 991, 89 Cal.Rptr.2d 618, 631 (citing text)]

The personal representative 'is an officer of the court and occupies a fiduciary relation toward all parties having an interest in the
estate.' [Estate of Sanders (1985) 40 Cal.3d 607, 616, 221 Cal.Rptr. 432, 437 (internal quotes omitted); Estate of Seifert (2005) 128
Cal.App.4th 64, 68, 26 Cal.Rptr.3d 560, 562 (discussed further at 3:230.1 to 3:230.2)]
*1997 (1) [16:178] Statutory limitations on liability: Preliminarily, note these provisions under which the
representative is statutorily protected from liability:
(a) [16:178.1] General 'good faith' protection: Liability for a loss or other injury to the estate occasioned by the
representative's failure to exercise 'ordinary care and diligence' (Ca Probate § 9600) may be excused if the court finds
that the representative otherwise acted 'reasonably and in good faith under the circumstances' and that relieving the
representative from liability in whole or in part would be 'equitable.' [Ca Probate § 9601(b); Estate of Kampen (2011)
201 Cal.App.4th 971, 988, 135 Cal.Rptr.3d 410, 423]
(However, even if the court declines to impose surcharge liability under the authority of § 9601(b), interested persons
adversely affected by the representative's breach may still pursue their other statutory or common law damages
remedies. See Ca Probate § 9603, 5:25.6, 16:204.5.)
(b) [16:179] Protection for 'good faith' mistakes in taking possession of nonestate property: A representative who
in 'good faith' takes possession of property 'reasonably believed' by the representative to be part of the decedent's estate
may not be held criminally or civilly liable to any person if it turns out that the property is not part of the estate.
However, the representative must make reasonable efforts to determine the true nature of and title to such property taken
into his or her possession. [Ca Probate § 9651(a) & (b); also see 1:47.22 to 1:47.23, 6:2.1 on probate attorney's duty to
'investigate' assets of the estate]
Property which is later determined not to be part of the estate must be delivered to the person(s) legally entitled thereto
together with all its rents, issues and profits received by the representative, less expenses incurred in its protection and
maintenance or in the collection of its rents, issues and profits. For this purpose, the representative has the discretionary
right to 'request court approval before delivering the property' to someone else. [Ca Probate § 9651(c); and see more
detailed discussion at 6:3.10 ff.]
[16:180] Reserved.

(c) [16:181] Corepresentative's breach of fiduciary duty: As a general rule, when there are two or more personal
representatives for the estate, one representative is not liable for a breach of fiduciary duty committed by another
representative. [Ca Probate § 9631(a)]
*1998 Liability for one representative's breach must be borne by the other representatives only where they are in some
manner (actively or passively) also at fault. Specifically, the Code holds a personal representative liable for a
corepresentative's breach of fiduciary duty where:

The personal representative participates in a breach committed by the other representative; or

The personal representative improperly delegates estate administration to the other representative; or

The personal representative approves, knowingly acquiesces in or conceals the other's breach of fiduciary duty; or

The personal representative's own negligence enables the other representative to commit the breach; or

The personal representative knows or reasonably should have known from available information that the other representative has
committed a breach of fiduciary duty and fails to take reasonable steps to compel the wrongdoing representative to redress the
breach. [Ca Probate § 9631(b)(1)-(5)]
(d) [16:182] Losses to estate: Losses occasioned by a decrease in value or destruction of estate property and losses on
sales made in accordance with proper Code procedures are not chargeable to the representative so long as he or she was
not at fault in causing the loss. [Ca Probate §§ 9657, 10005(b), 16:117.1; but see 13:283.1 to 13:284.2 re
representative's liability for misconduct in sale proceedings and 'liquidated damages' liability for 'fraudulent sale' of real
property]
(2) [16:183] Illustrations of acts subject to surcharge: Virtually any abuse of office shown to breach the
representative's statutory duty to use 'ordinary care and diligence' in managing and controlling the estate (Ca Probate §
9600(a), 5:23 ff.) exposes the representative to surcharge liability for resulting loss or damage to the estate or persons
interested in the estate. Depending on the circumstances, the breach may consist of an affirmative act or a failure to act.
[See generally, Ca Probate § 9600(b) -- representative shall exercise a power to the extent 'ordinary care and diligence'
require that the power be exercised and shall not exercise a power to the extent 'ordinary care and diligence' require that
it not be exercised; and Estate of Guiol (1972) 28 Cal.App.3d 818, 825-826, 105 Cal.Rptr. 35, 38-39 -- representative
breached duty by turning over possession and control of estate property to another and by failing to recover it]
*1999 Scattered throughout the Code are several statutes specifically exposing the representative to liability for
particular breaches (see, e.g., Ca Probate §§ 10380 & 10381 in connection with sales). But again, any conduct falling
below the statutory standard of care is potential ground for surcharge. The following examples are illustrative:

(a) Mismanagement of estate property

[16:184] Representative's occupying estate property without attempting to rent it. [Estate of Pardue (1943) 57
Cal.App.2d 918, 921, 135 P.2d 394, 395-396 -- representative surcharged for property's rental value; compare Estate of
Rindge (1934) 136 Cal.App. 263, 266-267, 28 P.2d 705, 706 -- representative who occupied property while attempting to
rent or sell, in order to properly care for it, not chargeable with rental value]
[16:185] Converting estate property to own purposes -- even if such property ultimately would be distributable to the
representative as estate beneficiary or heir. [Estate of McSweeney (1954) 123 Cal.App.2d 787, 792, 268 P.2d 107, 111 --
representative held liable for interest on property so converted; representatives are 'not entitled to use such sums until they
are distributed to ... (them as heirs or devisees) in the manner provided by law']
[16:186] Commingling estate funds with own funds -- representative is chargeable with interest and profits reaped
thereby. [Estate of Harvey (1964) 224 Cal.App.2d 555, 559-560, 36 Cal.Rptr. 788, 791; Estate of Elizalde (1920) 182
Cal. 427, 435, 188 P 560, 563 -- liability for misappropriated funds plus interest where no showing that larger profit was
received]
[16:187] Negligent failure to collect estate assets, causing loss to estate. [Estate of Massaglia (1974) 38 Cal.App.3d
767, 773-774, 113 Cal.Rptr. 751, 756]
[16:188] Improvident sales at a loss (i.e., not in accordance with statutory procedures for noticed hearing and possibility

of overbidding); see 13:1.1 ff. [But see Estate of Beach (1975) 15 Cal.3d 623, 639-640, 125 Cal.Rptr. 570, 580-581 --
representative not liable for losses caused from failure to sell stock while market price was above appraised value as of
date of death -- not a breach of fiduciary duty, 13:6, 13:422 to 13:428]
[16:189] Failure to liquidate assets when required to satisfy taxes, debts and administration costs. [Estate of Gerber
(1977) 73 Cal.App.3d 96, 108, 140 Cal.Rptr. 577, 582]
*2000 [16:190] Unauthorized investments causing loss; see 13:421 ff.
[16:191] Carrying on decedent's business without prior court approval, with resulting losses. [Estate of Spirtos (1973)
34 Cal.App.3d 479, 490-491, 109 Cal.Rptr. 919, 926; and see 14:64 ff.]
[16:192 - 16:193] Reserved.
(b) [16:194] Failure to file tax returns on time: The representative may be surcharged for penalties due for delayed
filing or failure to file estate or income tax returns. [Estate of Harvey (1964) 224 Cal.App.2d 555, 557-558, 36 Cal.Rptr.
788, 789-790; In re Heers (9th Cir. BAP 2015) 529 B.R. 734, 744-745 -- surcharge liability for failure to timely file
estate taxes not dischargeable in bankruptcy; and see United States v. Boyle (1985) 469 U.S. 241, 249-250, 105 S.Ct.
687, 692 (discussed at 16:200 ff.)]
(c) [16:195] Failure to defend litigation against the estate: Negligent or deliberate failure to defend unjustified
claims and litigation against the estate renders the representative liable for losses arising therefrom. [E.g., Estate of
McSweeney, supra (representative surcharged for allowing adverse claimant to take estate property by consent
judgment)]
(d) [16:196] Failure to timely file inventory and appraisal: The representative may be removed from office for
failure to file the inventory and appraisal within the statutory time period (6:65); he or she also may be held liable for
consequential damages resulting to the estate or any interested persons. Liability is chargeable jointly and severally
against the personal representative and the sureties on the representative's bond. [Ca Probate § 8804; also see Ca Civ Pro
§ 996.410 et seq.; Estate of Fain (1999) 75 Cal.App.4th 973, 992-994, 89 Cal.Rptr.2d 618, 632-634 -- failure to
marshal assets and complete inventory warranted $715,000 surcharge, plus interest and attorney fees, against
administrator and her surety; and 6:68]
(e) [16:197] Noncompliance with court orders: E.g., failure to execute title documents pursuant to court order for
sale of property under contract obligation. [Harm v. Frasher (1960) 181 Cal.App.2d 405, 423, 5 Cal.Rptr. 367, 378]
*2001 (f) [16:198] Failure to petition for final distribution or to file status report on time: Losses caused by
failure to petition for final distribution or to file a status report within the one-year or 18-month statutory period or other
deadline imposed by the court is ground for surcharge; and it is also ground for reducing statutory compensation
otherwise payable. [See Ca Probate § 12205; Estate of Kampen (2011) 201 Cal.App.4th 971, 988-989, 135 Cal.Rptr.3d
410, 423-424; Estate of Bonaccorsi (1999) 69 Cal.App.4th 462, 470-471, 81 Cal.Rptr.2d 604, 610; and 16:85 ff.]
(g) [16:199] Independent torts: The representative is personally liable for tortious acts committed while in office; and
may also be held liable for the torts of employees (respondeat superior). [Johnston v. Long (1947) 30 Cal.2d 54, 59-62,
181 P.2d 645, 648-650 -- representative liable for torts of employees of decedent's business continued during
administration (but representative given right of reimbursement against estate)]
(3) [16:200] Reliance on advice of counsel as defense? Representatives may not abandon their fiduciary obligations
by delegating management and control of the estate to their attorneys; they remain liable for breaches of due care no
matter how involved probate counsel is in the management of the estate and thus cannot escape potential surcharge
liability on a general allegation that they 'acted on advice of counsel.' [See Estate of Spirtos (1973) 34 Cal.App.3d 479,
489-491, 109 Cal.Rptr. 919, 925-926; United States v. Boyle (1985) 469 U.S. 241, 249-250, 105 S.Ct. 687, 692 --
representative not relieved of duty to timely file estate tax return simply because he or she relied on probate counsel to
file]
By the same token, a representative who exercises due care and diligence in the selection of probate counsel and in
fulfillment of the representative's fiduciary duties will not be charged with losses solely attributable to the attorney's
misconduct. [E.g., Estate of Barbikas (1959) 171 Cal.App.2d 452, 458, 341 P.2d 32, 36 -- attorney embezzled estate
funds]
(a) [16:201] Questions of law vs. questions of fact: The issue may turn on whether the representative's reliance was
on a matter of law or a matter of fact. It may be that good faith reliance on counsel's advice as to legal issues will excuse
the representative's errors and omissions in probate administration. [See United States v. Boyle, supra, 469 U.S. at 250,
105 S.Ct. at 692 (tax penalty case) (dicta stating a representative's failure to file estate tax return based on reasonable

reliance on erroneous advice of counsel might constitute reasonable cause excusing late filing)]
*2002 On the other hand, representatives cannot escape liability for failure to perform acts of administration that they
knew were required, by claiming that they turned those acts over to counsel to perform. If the act was part of the
representative's administration responsibility, the representative can be surcharged for the attorney's neglect. [E.g.,
Estate of Guiol (1972) 28 Cal.App.3d 818, 824, 105 Cal.Rptr. 35, 38 -- representative accountable for assets turned over
to attorney (Barbikas, supra, distinguished on ground that representative in Barbikas never had possession of property
embezzled by counsel)]
(b) [16:202] Representative's recourse: A representative who is surcharged for acts performed in reliance on legal
counsel or the conduct or neglect of probate counsel is not left without recourse. His or her remedy lies against the
attorney in a suit for malpractice.
(4) [16:203] Extent of surcharge liability -- consequential damages plus interest: When a basis for surcharge is
established and there is no 'good faith' ground for excusing the breach (16:178.1), the Code charges the representative
with 'any of the following that is appropriate under the circumstances':
[16:203.1] Losses in value plus interest: Any loss or depreciation in value of the estate caused by the breach, with
simple interest. [Ca Probate § 9601(a)(1)]
[16:203.2] Personal profits plus interest: Any personal profit made by the representative through the breach, with
simple interest. [Ca Probate § 9601(a)(2)]
[16:203.3] Lost profits: Any lost profit that would have accrued to the estate but for the breach. [Ca Probate §
9601(a)(3)]
(a) [16:203.4] Court discretion to select appropriate measure: The court has discretion to impose any of the above
measures of liability (16:203.1 ff.) deemed appropriate under the circumstances. [See Ca Probate § 9601, Law Rev.
Comm'n Comment; and Estate of Kampen (2011) 201 Cal.App.4th 971, 988-989, 135 Cal.Rptr.3d 410, 423-424 -- court
properly surcharged executor for his unreasonable delay in distribution of estate in the amount of bond premiums paid
by the executor from estate funds after entry of final distribution order, plus simple interest; executor did not profit from
the delay and had no statutory duty to invest money belonging to estate]
*2003 (b) [16:203.5] Amount of interest liability: Any interest liability imposed under § 9601 is for the greater of (i)
the amount of interest accruing at the legal rate on judgments (currently 10% per annum; Ca Civil § 3289(b)) or (ii) the
interest actually received. [Ca Probate § 9602(a)]
1) [16:203.6] No compound interest: Section 9602 sets the limit on the amount of interest that may be added to a
representative's surcharge liability. Effectively overruling prior case law, the statute does not permit annual
compounding of interest even where liability is imposed for the representative's willful misconduct. [Compare Estate of
Piercy (1914) 168 Cal. 755, 757-758, 145 P 91, 92; Estate of McSweeney (1954) 123 Cal.App.2d 787, 791-793, 268
P.2d 107, 110-111; Estate of Harvey (1964) 224 Cal.App.2d 555, 559, 36 Cal.Rptr. 788, 791]
2) [16:203.7] Court discretion to excuse interest liability: If the personal representative acted 'reasonably and in good
faith under the circumstances as known' to him or her, the court has discretion to excuse the personal representative
from interest liability, in whole or in part, 'if it would be equitable to do so.' [Ca Probate § 9602(b)]
3) [16:203.8] Other statutory and common law remedies: The above statutory limits on interest liability (16:203.5)
do not prevent persons adversely affected by the personal representative's neglect or misconduct from resorting to other
remedies available under statutory or common law. [See Ca Probate § 9603, discussed at 16:204.5]
(c) [16:204] Attorney fees generally not allowable: Generally, objectors may not recover their attorney fees incurred
for legal services rendered in surcharge litigation. This rule is in accordance with the general principle that, absent
statute or agreement, attorney fees are to be paid by the party employing the attorney (Ca Civ Pro § 1021):
'[E]ach party must pay [his or her] own attorney's fees since [he or she] has benefited no one but [himself or herself] in
prosecuting [the] action.' [See Estate of Marre (1941) 18 Cal.2d 191, 192, 114 P.2d 591; Estate of Gerber (1977) 73
Cal.App.3d 96, 117, 140 Cal.Rptr. 577, 588; compare Estate of Fain (1999) 75 Cal.App.4th 973, 992, 89 Cal.Rptr.2d
618, 632-633 -- extraordinary attorney fees incurred by objector/administrator in segregating assets, reconstructing
inventories and solving other problems caused by former administrator's negligence deemed recoverable element of
surcharge (fees not directly related to surcharge litigation)]
*2004 1) [16:204a] Exception where opposition to contest in 'bad faith': See 16:206.
2) [16:204.1] Compare --'common fund' theory of recovery: In some cases, attorney fee recovery in surcharge
litigation might lie where the results benefit a class of heirs or devisees by preserving a 'fund' for all of them. The

recovery in such cases is based on the equitable 'common fund doctrine.' [See, e.g., Copley v. Copley (1981) 126
Cal.App.3d 248, 293, 178 Cal.Rptr. 842, 870; Estate of Gump (1982) 128 Cal.App.3d 111, 118, 180 Cal.Rptr. 219,
223; and for a general discussion of the 'common fund doctrine,' see Serrano v. Priest (1977) 20 Cal.3d 25, 35, 141
Cal.Rptr. 315, 318]
[16:204.2 - 16:204.4] Reserved.
(d) [16:204.5] Compare -- other statutory and common law remedies: The surcharge liability imposed by §§ 9601
and 9602 does not prevent aggrieved persons from pursuing 'any other remedy available against the personal
representative under the statutory or common law.' Thus, persons adversely affected by the personal representative's
neglect or mismanagement may litigate their claims by way of an appropriate independent damages cause of action; they
are not restricted to the statutory surcharge remedies. [Ca Probate § 9603]
However, § 9603 simply retains remedies that existed before the enactment of §§ 9601 and 9602 (16:203 ff.); it does not
create any new remedies against a personal representative. [Ca Probate § 9603, Law Rev. Comm'n Comment; see Estate
of Kampen (2011) 201 Cal.App.4th 971, 992-993, 135 Cal.Rptr.3d 410, 426 -- no §§ 9601, 9602 or 9603 authority for
surcharge measure of damages urged by estate beneficiary]
(5) [16:205] Reaching surety to satisfy surcharge liability: Once the personal representative's liability is determined,
sureties on the representative's bond ordinarily may be reached to satisfy the liability to the full extent of the bond. [
American Contractors Indem. Co. v. Saladino (2004) 115 Cal.App.4th 1262, 1266, 9 Cal.Rptr.3d 835, 838, fn. 3;
Estate of Davis (1990) 219 Cal.App.3d 663, 669, 268 Cal.Rptr. 384, 388] The applicable procedure is discussed in Ch.
15 in connection with actions relating to bond; see 15:789 ff.
*2005 Exception: A personal representative's 'liquidated damages' liability for a 'fraudulent' real property sale (Ca
Probate § 10381) ordinarily will not be enforceable against sureties on the representative's bond, because the bond sets
the limit on surety liability. See 13:284 to 13:284.2.

g. [16:206] Recovery of compensation and expenses for 'bad faith' contest or opposition to contest: If the court determines that
a contest to the representative's account was brought 'without reasonable cause and in bad faith,' the court may award against the contestant
the compensation and costs of the personal representative, as well as other expenses and costs of litigation, including attorney fees, incurred
to defend the account. The amount so awarded is a charge against the contestant's interest in the estate, and the contestant is personally
liable for any amount remaining unsatisfied. [Ca Probate § 11003(a) (emphasis added)]

Conversely, upon determining that the representative's opposition to a contest was 'without reasonable cause and in bad faith,' the
court may award the contestant the costs and other expenses, including attorney fees, incurred to contest the account. The award is a charge
against the compensation or other interest of the personal representative in the estate, and the representative is personally liable and on the
bond (if any) for any amount that remains unsatisfied. [Ca Probate § 11003(b) (emphasis added); Estate of Bonaccorsi (1999) 69
Cal.App.4th 462, 473, 81 Cal.Rptr.2d 604, 611, fn. 7]

5. Final Accountings

a. [16:207] Statutory requirement: A 'final account' and petition for an order for final distribution must be filed when the estate is
'in a condition to be closed.' [Ca Probate § 10951; and see 16:95.1, 16:135]
(1) [16:208] Contempt power to compel final account: If the representative fails to file a final account when the
estate is in a condition to be closed (i.e., the creditor claim-filing period has expired and all debts and allowed claims
have been paid or the estate is insolvent), the court must compel the account through exercise of its contempt power. A
citation will issue on petition of any interested person, requiring the representative to appear and show cause why he or
she should not be punished for contempt -- i.e., reasons why the estate is not in a condition to be closed. [Ca Probate §§
11050-11052; see discussion at 16:114.1 ff.]
*2006 (2) [16:209] Compare -- one-year/18-month deadline on petition for final distribution or 'status report':
As explained earlier, a petition for final distribution -- which normally includes a final account and petition for its
settlement (unless the account is waived) -- is due within one year after letters issued where no federal estate tax return
is required, or 18 months after letters issued if a federal estate tax return is required. If the estate cannot be distributed
and closed within this time-frame, a verified report of the status of administration must be filed instead, subject to court-
approved extensions of time. [Ca Probate §§ 12200-12201; see 16:76 ff.]

(3) [16:210] Payment of debts under prior account as 'final account': If the payment of debts pursuant to an order
settling a prior (interim) account exhausts the estate, that prior account constitutes a 'final account.' Notice of hearing
must be given as required for the hearing on a final account (16:244); and the personal representative is entitled to a
decree of discharge when he or she has complied with the terms of the order settling that account. [Ca Probate §
11422(c); see discussion of discharge at 16:593 ff.]
(4) [16:211] Concurrent duty to petition for distribution: When the estate is in a condition to be closed, the
representative 'shall' petition for final distribution of the estate. Thus, a final account and petition for its settlement
always includes a petition for final distribution; and the distribution usually is ordered at the hearing on the final account
(unless continued to a later time). [Ca Probate § 11640(a); see 16:385 ff. for discussion of final distribution]

b. [16:212] Preparation and contents of final account: For the most part, the format and content requirements for a final account
(financial statement, report, schedules and exhibits) are the same as for an interim current account, discussed in detail at 16:140 ff.
However, the following points apply exclusively to final accounts:
(1) [16:213] Scope of relief -- caption: The petition for settlement of a final account also requests final distribution
and, usually, payment of compensation to the representative and his or her attorney. And it further requests any other
appropriate relief incident to the closing (e.g., proration of estate taxes, 16:577). The caption on the petition should
include all of the relief sought.

*2007 FORM: Sample Final Account and Petition for its Settlement ... (other appropriate relief) and for Final Distribution, see 16:I.
(2) [16:214] Status of administration: It is common practice to include a paragraph to the effect that the
representative has performed all required acts of administration and that the estate is ready for distribution and in a
condition to be closed.
(a) [16:215] Status report (if earlier filed): If a verified 'status report' was filed under Ca Probate §§ 12200-12201 (
16:76 ff.), this fact should be alleged; and the terms of the resulting order should be included in the petition. Also, if
appropriate, indicate why closing was delayed beyond the statutory periods prescribed by § 12200.
(b) [16:216] IAEA acts: Representatives with IAEA authority should indicate when IAEA authority was granted, the
extent of the IAEA authority granted ('full' or 'limited'), and that it continued from time of appointment (or later order, if
applicable) to the present. This allegation reminds the court and interested persons of the reasons why certain acts were
performed without court approval.
In addition, IAEA representatives must list and describe in the account any IAEA actions taken without court approval if
notice of the proposed actions was required. The description of an action must indicate:

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

Whether any objections were received. [See Ca Rules of Court Rule 7.250(a); see also discussion in connection with preliminary
distributions at 16:24]
IAEA acts that were properly listed and described in earlier accountings, reports or petitions for distribution and
approved by the court need not be listed and described again. [Ca Rules of Court Rule 7.250(b)]

(3) Creditor claims

(a) [16:217] Notice to creditors and expiration of claim-filing period: Another paragraph must allege compliance with
the notice to creditors requirements (Ca Probate §§ 9001, 9050-9054) and expiration of the claim-filing period. If the
claim-filing period is still running, the estate is not in a condition to be closed.
[16:217.1] CAVEAT: Remember that all known and reasonably ascertainable creditors must be personally served with
notice to file their claims (published notice is not enough; Ca Probate § 9050; Tulsa Professional Collection Services, Inc.

v. Pope (1988) 485 U.S. 478, 490, 108 S.Ct. 1340, 1347; L.A. Super.Ct. Rule 4.65) and that specified 'public entity'
creditors must also be notified (Ca Probate §§ 9201-9202).
*2008 Cross-refer: The constitutional and statutory notice to creditors rules and the Probate Code claim-filing period
and 'nonclaim statute' are discussed in detail in Ch. 8.
(b) [16:218] Disposition of claims: Then, continue listing (usually by reference to an attached schedule) all claims
filed, including the date each claim was filed, the name of each claimant, the nature and amount of each claim, and the
action taken on the claims (i.e., whether claims were allowed, approved or rejected). [Ca Probate § 10900(b)(2); also see
Ca Rules of Court Rule 7.403; L.A. Super.Ct. Rule 4.63(a)]
If a claim was not paid, satisfied or adequately provided for, indicate whether the claim is due and the due date, the date
any notice of rejection was given, and whether the creditor has brought an action on the claim. [Ca Probate §
10900(b)(3); also see Ca Rules of Court Rule 7.403]
1) [16:219] Complete report required: The California Rules of Court (and some local rules) require a full report on
the status of all creditor claims in the final account even if partial reports were made in prior accounts. [See Ca Rules of
Court Rule 7.403; L.A. Super.Ct. Rule 4.63(a)]
(Ca Probate §§ 10900 and 1060 et seq. (16:116.1 ff.) do not appear to moot this requirement.)
2) [16:220] Effect of outstanding claims: All duly filed claims must have been acted on by the representative or the
court (allowed, approved or rejected) before a final account may be filed. And, as to rejected claims, a final account is
normally deemed premature unless the limitations period for maintaining an action on the claims has expired or
litigation on the claims has concluded (since the limitations period runs from the date notice of rejection is given, the
final account must state the date each notice of rejection was served; 16:218).
However, an estate may be closed even though the time to bring an action on a rejected claim is still running or an action
on the claim is still pending. Several options are available for dealing with the disputed claim. [See Ca Probate §§ 11460
-11467, discussed in detail at 8:264 ff.]
(c) [16:221] Confirmation of notice to Director of Health Care Services, Director of California Victim
Compensation Board, Franchise Tax Board, etc.: If property is distributed before expiration of the time allowed a
'public entity' to file its claim, the public entity has a claim against the distributees to the full extent of its claim, or each
distributee's share of the distributed property, whichever is less. [Ca Probate § 9203(b); see Estate of Starkweather
(1998) 64 Cal.App.4th 580, 588-590, 75 Cal.Rptr.2d 766, 771-773 -- Department of Health Care Services not limited to
claim against beneficiaries where personal representative fraudulently represented decedent received no Medi-Cal
benefits (action to set aside final accounting and distribution and to surcharge representative permitted)]
*2009 Therefore, most courts will not approve distributions without proof in the final accounting that notice to file
claims was given to the Director of Health Care Services, the Director of the California Victim Compensation Board
(when applicable, see 8:144.20 ff.), and the Franchise Tax Board as required by Ca Probate §§ 215, 216 and 9202(a)-(c)
, or an allegation in the final report that notice was not required under the governing law, specifying the reasons why (
see 16:54). [See L.A. Super.Ct. Rules 4.63 & 4.66; O.C. Super.Ct. Rule 608.11; S.D. Super.Ct. Prob.R. 4.5.8; S.F.
Uniform Rule 14.67L.2]
Cross-refer: For a detailed discussion of Ca Probate §§ 9201-9203, see 8:134 ff.

(4) Taxes
(a) [16:222] Payment of personal property taxes: The estate may not be closed unless all of its obligations are
'accommodated' (Ca Probate § 11621). Thus, although not a specific Code requirement, some local rules condition final
distribution on proof that all personal property taxes due from the estate have been paid. [See O.C. Super.Ct. Rule 608.10
--'Each petition for final distribution ... must contain an allegation that all personal property and income taxes that are due
and payable have been paid'; but see also 16:223.2]
(b) [16:223] Payment of estate taxes: Similarly, there is no Probate Code requirement that estate taxes be paid before
final distribution. However, local rules may require a statement of no estate taxes due; or, if estate taxes will be payable, a
statement of how and when they will be paid. [See O.C. Super.Ct. Rule 608.10; S.F. Uniform Rule 14.67L.1 -- petition
must address source of payment of estate taxes and whether will provides for the payment of estate taxes from the residue
or proration is required, in which case petition must show the computation]
1) [16:223.1] Caveat -- federal law deadline for paying estate tax: Of course, the fact that final distribution may be
approved by the court without proof that the federal estate tax was paid has no effect on the federal law requirement that

the estate tax ordinarily be paid within nine months after death; see 10:267.
2) [16:223.2] Comment: It is likely that Ca Probate § 1060 overrides local rules requiring proof of payment of taxes due
as a prerequisite to final distribution. Recall that § 1060 indicates that except as otherwise specifically provided in the
Code, or unless 'good cause is shown therefore,' no additional information need be included in an account; see 16:116a.
*2010 3) [16:224] Explanation of federal estate tax deferral: If an election to defer federal estate taxes has been
made (26 USCA § 6166, see 10:368 ff.), the terms of the deferral should be explained in the report so as to notify the
court of the outstanding tax liability and the terms of its payment.
4) [16:225] Proration of estate taxes: If the representative has paid estate taxes and decedent's will (or inter vivos trust
instrument) does not expressly require otherwise (e.g., by providing that 'all taxes shall be paid from the residue of the
estate without apportionment'), the petition for settlement of the final account should reflect the representative's
'equitable proration' of the taxes paid among the estate distributees. A court order making the appropriate proration is an
option but is not required. [Ca Probate §§ 20100-20225; see O.C. Super.Ct. Rule 608.10 -- petition for final distribution
must disclose whether there is a need for court order prorating estate tax under Ca Probate § 20100 et seq.; and see S.F.
Uniform Rule 14.67L.1 -- caption of petition, notice and decree must indicate that taxes are prorated]
Cross-refer: Proration of estate and generation-skipping transfer taxes is discussed in detail at 16:577 ff.
(c) [16:226] Income taxes: An allegation should be included that state and federal income taxes due from the estate (
see Ch. 12) have been paid or, if applicable, that no such taxes are payable by the estate. [See O.C. Super.Ct. Rule
608.10 -- petition for final distribution must contain allegation that all income taxes due and payable have been paid]
1) [16:227] Tax certificate not required for distribution: The Ca Rev & Tax provision requiring Franchise Tax
Board Income Tax Certificate for certain distributions to nonresident beneficiaries (Ca Rev & Tax § 19513) has been
repealed (Stats. 2013, Ch. 239). Consequently, the Certificate need no longer be referenced or attached as an exhibit to a
petition for final distribution. (But see 14:401 for discussion of estate income tax implications of not obtaining tax
clearance certificate.)
(5) [16:228] Character of estate, receipts, property and cash on hand, and disbursements: These items, including
gains or losses on sales and investments, must be summarized on the face of the account and detailed through attached
schedules and exhibits. [Ca Probate § 1061 et seq.] See further discussion in connection with interim accounts at
16:140 ff.
*2011 (a) [16:229] Payment of administration costs: The final account generally will not be approved (nor a petition
to close the administration granted) unless all costs of administration have been paid ... including, under some local
rules, all legal advertising, bond premium and probate referees' fees. [See L.A. Super.Ct. Rule 4.64; O.C. Super.Ct.
Rule 608.09]
Local rules may require a specific allegation in the petition that these administration costs have been discharged. [See
L.A. Super.Ct. Rule 4.64 --'A petition for final distribution or to terminate the proceeding must state that all charges for
legal advertising, bond premiums, probate referee's services and costs of administration have been paid']
1) [16:229a] Includes reimbursement of will lodging fee: Administration costs include reimbursement to the
custodian of the will for his or her payment of the $50 lodging fee incurred on delivery of the will to the clerk of the
court. [Ca Probate § 8200(d); see 3:24.1]
(b) [16:229.1] Copying, telephone and fax costs not allowed: Ordinarily, courts will not allow reimbursement for
costs incurred by probate counsel or the personal representative for duplicating documents, making local telephone calls
or fax transmissions (except court charges), local travel, secretarial services and postage. These are presumed to be part
of the general administration overhead (i.e., to be absorbed in the statutory compensation awardable by the court). [See
L.A. Super.Ct. Rule 4.43; S.F. Uniform Rule 14.91B]
Nevertheless, courts will occasionally authorize reimbursement for unusual office and travel expenses found to be
necessary and reasonable under the circumstances. [See S.D. Super.Ct. Prob.R. 4.16.1 -- travel, photocopying, express
mail, postage, long distance telephone costs may be allowed; S.F. Uniform Rule 14.91C -- long distance telephone and
travel reimbursed only in court's discretion]
[16:230] Reserved.
(6) [16:231] Proposed distribution and identification of distributees: This part of the petition identifies the heirs,
devisees and legatees (ordinarily those identified on the petition for probate unless others were discovered later on) by
name, age, current address and relationship to decedent; and the shares of the estate to which each named distributee is
entitled. [See L.A. Super.Ct. Rule 4.69 -- names and present addresses of all affected persons (and whether they are

adults or minors) must appear in petition, and present age and birthdate of minor distributees must be stated; S.F.
Uniform Rule 14.67]
*2012 (a) [16:232] Minors: Each minor distributee's age must be shown because special disposition must be made for
distributions to minors -- i.e., distribution to a parent or guardian, to a custodian account, or to a blocked account. Also,
distributions from a testamentary trust are typically conditioned on the beneficiary reaching a specified age. [See L.A.
Super.Ct. Rule 4.69(b) -- if trust is established in which property will be distributed to beneficiary upon reaching given
age, petition must allege beneficiary's present age and birth date]
(b) [16:233] Assignees: Representatives who have reason to believe that an heir's or beneficiary's interest has been
assigned or transferred should advise the court in the petition for final distribution. [See Ca Probate § 11604; L.A.
Super.Ct. Rule 4.73(a); O.C. Super.Ct. Rule 608.16; S.F. Uniform Rule 14.67D, 14.67L.6; also see 16:457 ff. on court
authority to review fairness of the assignment]
(c) [16:234] Particular descriptions: Again, be sure to consult the Ca Rules of Court Rule and local rules for special
requirements concerning descriptions of each distributee's share. [Ca Rules of Court Rule 7.651, 7.652 (16:51 ff.); see
S.D. Super.Ct. Prob.R. 4.17.9; S.F. Uniform Rule 14.67L.7]
(d) [16:235] When proper distribution unclear: If the representative is not sure who is entitled to take what property
because, for example, the will is unclear and the matter has not yet been adjudicated (e.g., on petition to determine
distribution rights), the section of the petition proposing distributions should quote the relevant passages of the will and
ask the court to interpret them. [See Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1431, 45 Cal.Rptr.2d 616, 618, fn. 2
(disapproved on other grounds in Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 140, 59 Cal.Rptr.2d 2, 10) --
courts look to will in construing final distribution order when order repeats will's terminology; and Estate of Goyette
(2004) 123 Cal.App.4th 67, 19 Cal.Rptr.3d 670]
Cross-refer: See discussion of distribution and special distribution problems at 16:385 ff.
(7) [16:236] Statutory and extraordinary compensation: The final account is also the place to request and set forth
the basis for statutory and, if appropriate, extraordinary compensation for the representative and attorney. Compensation
allowances approved on prior accounts should be indicated.
*2013 (a) [16:237] Supporting declarations and exhibits: Many courts require detailed explanations, by declaration
under penalty of perjury, to support petitions for extraordinary compensation. See discussion at 16:324 ff.
(b) [16:238] If account waived: Even if a detailed account has been waived (16:104), the report must still state the
amount of compensation paid or payable and set forth the basis for its calculation. [Ca Probate § 10954(c); Ca Rules of
Court Rule 7.550, 7.705; O.C. Super.Ct. Rule 608.03]
(8) [16:239] Closing expenses: The court's order for distribution must include an estimate of expenses to close the
estate (e.g., recordation fees for real property distributions, estate tax liabilities). Another paragraph of the petition
should therefore request that the representative be given authority to withhold a stated amount for estimated closing
costs; and explanations should be included in the report. (It is sometimes appropriate to request withholding of a certain
amount as a 'reserve' for currently unknown liabilities -- such as tax deficiencies.) Later disbursements, after the final
account, may then be reported by a 'supplemental account' (but see 16:100.1 -- supplemental accounts not required by
the Code). [See S.F. Uniform Rule 14.67L.3 -- petition and order must set forth use that may be made of funds reserved,
application for final discharge must show disposition of all amounts held in reserve, and receipts must be filed for any
distribution; S.D. Super.Ct. Prob.R. 4.17.10 -- if petitioner requests to withhold $10,000 or more, petitioner must
specify items for which withholding is required, with an estimate of each item]
(9) [16:240] Prayer: Like the caption on the petition, the prayer on a final account is usually much more exhaustive
than on interim accounts. The final paragraph 'prays for' all of the relief requested, which should be listed item by item. (
See sample at 16:I.)
(10) [16:241] Verification: The account should be signed by the representative after the prayer; and both the account
and accompanying report must be verified by the representative. [See Ca Probate § 1021(a)(1) & (b)(2) --'report or
account shall be verified by the person who has the duty to make the report or account'; Ca Rules of Court Rule 7.103]
*2014 Likewise, the representative's verification is required on his or her petition for settlement of the account. [Ca
Probate § 1021(a)(1); Ca Rules of Court Rule 7.103]

(11) Additional matters (optional)

(a) [16:242] Attorney's joinder in compensation request: The estate attorney may petition separately for payment of

compensation but, more commonly, he or she simply adds a paragraph to the representative's account 'joining in' the
representative's request for compensation. The joinder must likewise be verified. [Ca Rules of Court Rule 7.103]
The attorney should also prepare and file a verified exhibit detailing the extraordinary services performed for which
additional compensation is requested; see 16:I.
(b) [16:243] Waivers of accounting: If a detailed accounting is waived per Ca Probate § 10954 (see 16:104 ff.), the
beneficiaries' and heirs' waivers or acknowledgments of receipt should be filed with the petition. In this event, however,
be sure to consult Ca Rules of Court Rule 7.550 and local rules as to the matters that still must be reported
notwithstanding the waiver (see 16:112 ff.). [S.F. Uniform Rule 14.65]

c. [16:244] Notice of hearing: When the final account is filed for settlement, the clerk will set a hearing date and time. [Ca Probate
§ 1041] The representative must then give notice of the hearing, stating in the notice that a hearing will be held at the specified date, time
and location for settlement of the final account AND for final distribution of the estate (and, as appropriate, for other requested relief). [Ca
Probate § 11000(c)]
(1) [16:245] General notice requirements: In all cases, minimum 15 days' notice of hearing on the petition must be
given in the manner prescribed by Ca Probate § 1220 (amended Stats. 2017, Ch. 319), which in turn requires delivery
(personally, electronically, or by mail) pursuant to Ca Probate § 1215 (amended Stats. 2017, Ch. 319) (3:466 ff.) to the
following persons:

All persons entitled to notice pursuant to Ca Probate § 1220 (3:468 ff.). [Ca Probate § 11000(a)(1)]

(Remember that the notice of hearing and a copy of the petition, report and account must be delivered to all persons who have requested
special notice, unless the court excuses special notice; see 3:512. If requests for special notice have been withdrawn or special notice
has been waived, the withdrawals and waivers should be filed at or before the hearing when proof of service is filed; see 16:26.1,
16:60.)

*2015 Each 'known' heir and devisee 'whose interest in the estate would be affected by the account.' [Ca Probate § 11000(a)(2) & (3);
and see 3:470 to 3:470.3, 3:471.2 as to who are 'known' heirs and devisees]

If the estate is insolvent, each creditor who has filed an allowed or approved claim that is unpaid in whole or in part. [Ca Probate §
11000(a)(5)]
(2) [16:246] Notice to prior representative or attorney: If there has been a change of representatives or a substitution
of counsel during the administration, the prior representative and/or attorney may have an outstanding claim for
compensation. In this case, an apportionment of compensation will be required on settlement of the final account (see
16:308). Therefore, notice of hearing on the petition requesting compensation must be given to the prior representative
and/or attorney, unless:

An executed waiver of notice by the prior representative or counsel is on file or filed with the petition; or

An agreement allocating compensation is on file or included in or filed with the petition; or

The file and the petition demonstrate that the compensation of the prior representative or attorney has been previously allowed in full by
the court. [Ca Rules of Court Rule 7.704(b); see S.D. Super.Ct. Prob.R. 4.5.9]
Comment: Technically, notice to prior attorneys and prior representatives is required only if they have filed appropriate
requests for special notice. However, some courts will insist that this notice be given even when appropriate requests for
special notice have not been made.
(3) [16:247] Notice and copy of account to State Controller in escheat cases: If property is to be distributed to the
state 'because there is no known beneficiary or if property is to be distributed to a beneficiary whose whereabouts is
unknown,' at least 15 days before the hearing, the State Controller must be given notice as provided in Ca Probate §

1220 (amended Stats. 2017, Ch. 319), which in turn requires delivery (personally, electronically, or by mail) of the
notice of hearing pursuant to Ca Probate § 1215 (amended Stats. 2017, Ch. 319), as well as a copy of the latest account
filed with the court. [Ca Probate § 11601(e) (amended Stats. 2017, Ch. 319); and see discussion of escheat at 16:483 ff.]
*2016 (The State Controller is served at the State Controller's Office, Legal Office, 300 Capitol Mall, Suite 1850,
Sacramento, CA 95814.)

d. [16:248] Hearing: At the hearing, the court considers objections to the account (e.g., challenge to property values, surcharge
claims based on alleged negligence, mismanagement, etc.; 16:170 ff.) and passes on the propriety of the items reported. It also rules on all
other relief requested in the petition -- including compensation (16:351.1 ff.), expense reimbursements and other orders for payment, and, of
course, the final distribution. Objections to the proposed distribution are considered at this time (16:400).

e. [16:249] Order settling final account: Adjudication of the issues raised by the petition and the account results in an Order
Settling Final Account and for Final Distribution. To the extent approved, the court also orders all other relief requested by the
representative -- e.g., payment of compensation.

FORM: Sample Order Settling Final Account and Report and Allowing Compensation, and for Final Distribution, see 16:J.
(1) [16:250] Findings and recitals: At a minimum, the order should contain the following findings and recitals, to
show compliance with the Code prerequisites for settling an account and ordering distribution:

(a) Notice duly given for the period and in the manner required by law, including a finding that notice was given to creditors as required
by law;

(b) Transactions and acts reported by the representative are accurately shown and should be approved (or, if certain acts are not approved,
they should be listed as exceptions);

(c) Allegations of the petition for settlement of the account and for final distribution are true (except as otherwise stated in the order);

(d) Total receipts and disbursements since the end of the period covered by the account;

(e) Disposition of claims (all claims filed have been allowed by representative or approved by court and paid, or rejected by representative
or court; and, if rejected, that written notice of rejection was duly given and statutory period for filing suit has passed or litigation
thereon has concluded) (but see 16:220);

*2017 (f) Property remaining on hand;

(g) Payment of all debts and expenses (save for approved closing expenses);

(h) Status of death, income and other tax obligations (if estate taxes have been deferred, a statement of the deferral terms should be
included);

(i) Estimate of reserve for closing expenses;

(j) Payment of compensation;

(k) Statement that account and report are settled, allowed and approved as specified;

(l) Distribution ordered as specified.

[16:251] Reserved.
(2) [16:252] Conclusive effect of order settling account: An order settling and allowing a representative's account
(whether interim or final) operates in rem. After it becomes final, the order ordinarily is conclusive (res judicata) against
all persons interested in the estate as to all matters embraced by the order -- including the propriety of receipts,

disbursements and distributions listed and, generally, the representative's proper management of the estate (but see
16:258 ff. re 'extrinsic fraud' ground for set-aside and Ca Probate § 7250(c) fraud ground applicable to representative's
liability). [Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1264, 266 Cal.Rptr. 483, 486; Estate of Regli (2004) 121
Cal.App.4th 878, 881, 17 Cal.Rptr.3d 514, 516; Estate of Roberts (1945) 27 Cal.2d 70, 78-79, 162 P.2d 461, 466;
Estate of Wear (1942) 20 Cal.2d 124, 127, 124 P.2d 12, 14]
(a) [16:252.1] Representative's liability shield: Further, absent fraud, conspiracy or material misrepresentation in its
procurement, once it becomes final, an order settling and allowing a representative's account releases the personal
representative and the representative's sureties from all claims of heirs, devisees and other interested persons affected
thereby based upon any act or omission directly authorized, approved or confirmed therein. [Ca Probate § 7250(a), (c)]
(b) [16:253] Persons bound: All 'interested persons' are bound. This term includes heirs, beneficiaries and creditors ...
and even sureties on the representative's bond (see generally, Ca Probate § 48, 3:83.1 ff.). [Estate of Lindauer (1942) 53
Cal.App.2d 160, 165, 127 P.2d 589, 592 -- unpaid creditors who do not appeal are bound by order; L. Harter Co. v.
Geisel (1912) 18 Cal.App. 282, 285-287, 122 P 1094, 1094-1095 -- surety bound]
*2018 (c) [16:254] Limitation -- conclusiveness limited to matters encompassed by order: Only matters actually or
necessarily adjudicated by the order are 'finally' disposed of. Matters not passed on, and matters reserved for later
determination, are not affected by the order. [Estate of De Laveaga (1958) 50 Cal.2d 480, 487, 326 P.2d 129, 132;
Estate of Ross (1919) 179 Cal. 358, 362, 182 P 303, 305]

(d) Exceptions
1) [16:255] Certain unpaid creditors: To the extent unpaid creditors were denied due process in the claim-filing and
payment process (because not given notice to file their claims although known to or reasonably ascertainable by the
personal representative within the claim-filing period and not otherwise aware of the estate administration before the
point of final distribution), a final order settling the representative's accounts and ordering distribution does not affect
those creditors' rights to seek satisfaction of their claims against (i) the representative personally or on the representative's
bond (subject to the representative's immunity shield under Ca Probate § 9053, 8:7.1 ff.) or (ii) the estate distributees (but
the distributees' liability is limited to a statutory 'pro rata' share; see 16:383.2 ff.). [Ca Probate §§ 11429, 9392]
[16:256 - 16:257] Reserved.
2) [16:258] Extrinsic fraud or mistake: As with other probate orders, orders settling representatives' accounts remain
vulnerable to collateral attack on the grounds of extrinsic fraud or mistake. Upon such a showing (e.g., concealment of
material facts in the account that misled an interested person and thus caused him or her not to contest the allegations
presented), the court may invoke its inherent equitable power to set aside a final order settling and approving the
representative's account. [Estate of Sanders (1985) 40 Cal.3d 607, 614, 221 Cal.Rptr. 432, 435; see also Ca Probate §
7250, Law Rev. Comm'n Comment]
[16:258.1] The probate court has broad equitable jurisdiction to set aside its prior orders approving settlements and
preliminary distributions based on one party's broken promises and contempt. [See Estate of Beard (1999) 71 Cal.App.4th
753, 776, 84 Cal.Rptr.2d 276, 291 -- recalcitrant party's actions either constituted extrinsic fraud or induced extrinsic
mistake (discussed further at 3:47.1 ff.)]
*2019 [16:258.2] Compare: Lack of personal notice in probate proceedings does not amount to extrinsic fraud or
mistake warranting relief from judgment where the executor gives statutory constructive notice to the unknown (and not
reasonably ascertainable) heirs. [Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042-1044, 70 Cal.Rptr.2d 671,
674-676 (discussed further at 3:42.2); but see Estate of McGuigan (2000) 83 Cal.App.4th 639, 649, 99 Cal.Rptr.2d
887, 893 -- in proceeding to claim escheated estate, petitioner's failure to identify known heir who was closer relative to
decedent constituted extrinsic fraud]
[16:258.3] The trial court properly refused to set aside orders settling three accountings by a former conservator on
grounds of extrinsic fraud, instead giving them res judicata effect in a subsequent elder abuse action, where the
conservatee's daughter and successor conservator was given notice and an opportunity to participate in the accounting
proceedings. [Knox v. Dean (2012) 205 Cal.App.4th 417, 425-429, 140 Cal.Rptr.3d 569, 577-580 (applying identical
extrinsic fraud requirement to interpretation and application of Ca Probate § 2103, the conservatorship statute equivalent
to Ca Probate § 7250); but see Graham-Sult v. Clainos (9th Cir. 2014) 756 F.3d 724, 746 -- fraudulent concealment of
assets by executor was extrinsic fraud, precluding probate court's final order from having res judicata effect]
3) [16:259] Additional statutory fraud ground applicable to representative's liability: Upon proof of fraud,

conspiracy or material misrepresentation in procurement of any final probate order (including an order settling and
allowing a representative's account), the personal representative loses his or her § 7250 immunity for acts or omissions
authorized, approved or confirmed by the order. Thus, even where all parties receive proper notice of the proceeding
(and therefore have been afforded an opportunity to be heard), if the court is misled as to any material fact (i.e., what in
earlier days would have been called 'intrinsic fraud'), actions taken by the personal representative pursuant to the order
are subject to collateral attack. [Ca Probate § 7250(a), (c); see Estate of Starkweather (1998) 64 Cal.App.4th 580,
592-595, 75 Cal.Rptr.2d 766, 775-777 -- Department of Health Care Services could sue personal representative and her
surety for fraud after estate distribution where representative falsely informed probate court decedent had not received
MediCal benefits (discussed at 8:143.5 ff. & 16:221)]
*2020 'Fraud' for the purpose of attacking an otherwise final probate court order pursuant to § 7250 need not be an
affirmative misrepresentation; it may be predicated on the representative's omission to state a material fact. [Ca Probate
§ 7250(c); see Quick v. Pearson (2010) 186 Cal.App.4th 371, 381, 112 Cal.Rptr.3d 62, 69-70 -- beneficiary could sue
for breach of trust after final distribution where trustee failed to disclose to court existence of known beneficiary who
was unaware of trust's existence]
Cross-refer: 'Extrinsic fraud' and the § 7250 fraud ground are also discussed in connection with will contests; see
15:216 ff.
[16:259.1 - 16:259.4] Reserved.
(e) [16:259.5] Direct attack by appeal before finality: Of course, until it becomes final, the order settling and
approving a final account remains subject to direct attack by appeal. [Ca Probate § 1300(b)] In this event, the order's
'conclusiveness' is postponed until the appeal is resolved.
(f) [16:259.6] Compare -- inadvertently omitted property: 'After-discovered' property inadvertently omitted from the
administration remains subject to a subsequent administration: i.e., when property of the decedent is discovered after the
estate is closed and the representative discharged, new letters may issue for the purpose of administering that property.
But this rule has no effect on final orders entered in the prior administration; the new administration is an independent
proceeding. [Ca Probate § 12252; and see 16:605 to 16:609]
Moreover, even though the after-discovered property may be subject to another administration, the identity of the
property's recipients (i.e., heirs or beneficiaries) has normally been conclusively determined in the principal (earlier)
administration and thus may not be litigated anew in the probate of the after-discovered property. Also note that a
subsequent administration may be avoided entirely by the inclusion of an 'omnibus clause' in the order for final
distribution, disposing of all property 'whether or not now known or hereafter discovered.' See discussion at 16:408 to
16:409.
[16:260] Reserved.

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Page 1

*1966 CALIFORNIA PRACTICE GUIDE: PROBATE

(7) [16:156] Cross-refer -- accountings on final distribution

(b) [16:218] Disposition of claims

2) [16:258] Extrinsic fraud or mistake

Probate § 10501(a)(3), 9:21]

Waiver of Account (Ca Probate § 10954), see 16:F.

Acknowledgment of Receipt of Estate Share (Ca Probate § 10954), see 16:G.

sales, purchases or exchanges of assets;

changes in the form of assets;

whether the estate is solvent;

*1976 costs of administration for which reimbursement is requested; and

(1) Charges and credits

[16:123 - 16:126] Reserved.

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

3. Procedure on Interim Accountings

(1) The 'account'

ordinarily is) set forth in narrative form.

*1987 State whether Ca Probate § 9050 notice to creditors was given;

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

(2) Special content requirements

a. Who may participate in contest

In writing 'at or before the hearing' (Ca Probate § 1043(a)); or

FORM: Sample Objections to Representative's Account, see 16:H.

The personal representative participates in a breach committed by the other representative; or

(a) Mismanagement of estate property

The nature of the action;

When the action was taken;

When and to whom notice was given;

Whether notice was waived (and if so, by whom); and

(3) Creditor claims

(11) Additional matters (optional)

An agreement allocating compensation is on file or included in or filed with the petition; or

*2017 (f) Property remaining on hand;

(i) Estimate of reserve for closing expenses;

(j) Payment of compensation;

(l) Distribution ordered as specified.

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