Code Section Group

Probate Code - PROB

DIVISION 4. GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE PROCEEDINGS [1400 - 3925]

  ( Division 4 enacted by Stats. 1990, Ch. 79. )

PART 4. PROVISIONS COMMON TO GUARDIANSHIP AND CONSERVATORSHIP [2100 - 2893]

  ( Part 4 enacted by Stats. 1990, Ch. 79. )

CHAPTER 6. Powers and Duties of Guardian or Conservator of the Estate [2400 - 2595]

  ( Chapter 6 enacted by Stats. 1990, Ch. 79. )

ARTICLE 7. Sales [2540 - 2548]
  ( Article 7 enacted by Stats. 1990, Ch. 79. )

2540.
  

(a) Except as otherwise provided in Sections 2544 and 2545, and except for the sale of a conservatee’s present or former personal residence as set forth in subdivision (b), sales of real or personal property of the estate under this article are subject to authorization, confirmation, or direction of the court, as provided in this article.

(b) In seeking authorization to sell a conservatee’s present or former personal residence, the conservator shall notify the court that the present or former personal residence is proposed to be sold and that the conservator has discussed the proposed sale with the conservatee. The conservator shall inform the court whether the conservatee supports or is opposed to the proposed sale and shall describe the circumstances that necessitate the proposed sale, including whether the conservatee has the ability to live in the personal residence and why other alternatives, including, but not limited to, in-home care services, are not available. The court, in its discretion, may require the court investigator to discuss the proposed sale with the conservatee.

(c) Notice under subdivision (b) shall be provided to the court before the conservator commits any significant resources to the proposed sale of the residence, unless the conservator can establish that either the conservatee has the capacity to consent and unequivocally consents to the sale, or there are exigent circumstances that require the conservator to commit resources to the sale prior to court approval.

(Amended by Stats. 2019, Ch. 847, Sec. 2. (SB 303) Effective January 1, 2020.)

2541.
  

The guardian or conservator may sell real or personal property of the estate in any of the following cases:

(a)  If the income of the estate is insufficient for the comfortable and suitable support, maintenance, and education of the ward or conservatee (including care, treatment, and support of the ward or conservatee if a patient in a state hospital under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services) or of those legally entitled to support, maintenance, or education from the ward or conservatee.

(b)  If the sale is necessary to pay the debts referred to in Sections 2430 and 2431.

(c)  If the sale is for the advantage, benefit, and best interest of (1) the ward or conservatee, (2) the estate, or (3) the ward or conservatee and those legally entitled to support, maintenance, or education from the ward or conservatee.

(Amended by Stats. 2012, Ch. 440, Sec. 45. (AB 1488) Effective September 22, 2012.)

2541.5.
  

Notwithstanding Section 2541, the court may authorize a conservator to sell a conservatee’s present or former personal residence only if the court finds by clear and convincing evidence that the conservator demonstrated a compelling need to sell the residence for the benefit of the conservatee.

(Added by Stats. 2019, Ch. 847, Sec. 3. (SB 303) Effective January 1, 2020.)

2542.
  

(a) All sales shall be for cash or for part cash and part deferred payments. Except as otherwise provided in Sections 2544 and 2545, the terms of sale are subject to the approval of the court.

(b) If real property is sold for part deferred payments, the guardian or conservator shall take the note of the purchaser for the unpaid portion of the purchase money, with a mortgage or deed of trust on the property to secure payment of the note. The mortgage or deed of trust shall be subject only to encumbrances existing at the date of sale and such other encumbrances as the court may approve.

(c) If real or personal property of the estate sold for part deferred payments consists of an undivided interest, a joint tenancy interest, or any other interest less than the entire ownership, and the owner or owners of the remaining interests in the property join in the sale, the note and deed of trust or mortgage may be made to the ward or conservatee and the other owner or owners.

(Enacted by Stats. 1990, Ch. 79.)

2543.
  

(a) If estate property is required or permitted to be sold, the guardian or conservator may:

(1) Use discretion as to which property to sell first.

(2) Sell the entire interest of the estate in the property or any lesser interest therein.

(3) Sell the property either at public auction or private sale.

(b) Subject to Section 1469, unless otherwise specifically provided in this article, all proceedings concerning sales by guardians or conservators, publishing and posting notice of sale, reappraisal for sale, minimum offer price for the property, reselling the property, report of sale and petition for confirmation of sale, and notice and hearing of that petition, making orders authorizing sales, rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, and allowance of commissions, shall conform, as nearly as may be, to the provisions of this code concerning sales by a personal representative, including, but not limited to, Articles 6 (commencing with Section 10300), 7 (commencing with Section 10350), 8 (commencing with Section 10360), and 9 (commencing with Section 10380) of Chapter 18 of Part 5 of Division 7. The provisions concerning sales by a personal representative as described in the Independent Administration of Estates Act, Part 6 (commencing with Section 10400) of Division 7 shall not apply to this subdivision.

(c) Notwithstanding Section 10309, if the last appraisal of the conservatee’s personal residence was conducted more than six months prior to the confirmation hearing, a new appraisal shall be required prior to the confirmation hearing, unless the court finds that it is in the best interests of the conservatee to rely on an appraisal of the personal residence that was conducted not more than one year prior to the confirmation hearing.

(d) The clerk of the court shall cause notice to be posted pursuant to subdivision (b) only in the following cases:

(1) If posting of notice of hearing is required on a petition for the confirmation of a sale of real or personal property of the estate.

(2) If posting of notice of a sale governed by Section 10250 (sales of personal property) is required or authorized.

(3) If posting of notice is ordered by the court.

(Amended by Stats. 2007, Ch. 553, Sec. 17. Effective January 1, 2008.)

2544.
  

(a) Except as specifically limited by order of the court, subject to Section 2541, the guardian or conservator may sell securities without authorization, confirmation, or direction of the court if any of the following conditions is satisfied:

(1) The securities are to be sold on an established stock or bond exchange.

(2) The securities to be sold are securities designated as a national market system security on an interdealer quotation system or subsystem thereof, by the National Association of Securities Dealers, Inc., sold through a broker-dealer registered under the Securities Exchange Act of 1934 during the regular course of business of the broker-dealer.

(3) The securities are to be directly redeemed by the issuer thereof.

(b) Section 2543 does not apply to sales under this section.

(Amended by Stats. 1996, Ch. 86, Sec. 2. Effective January 1, 1997.)

2544.5.
  

Except as specifically limited by the court, subject to Section 2541, the guardian or conservator may sell mutual funds held without designation of a beneficiary without authorization, confirmation, or direction of the court. Section 2543 does not apply to sales under this section.

(Added by Stats. 1996, Ch. 86, Sec. 2.5. Effective January 1, 1997.)

2545.
  

(a) Subject to subdivisions (b) and (c) and to Section 2541, the guardian or conservator may sell or exchange tangible personal property of the estate without authorization, confirmation, or direction of the court.

(b) The aggregate of the sales or exchanges made during any calendar year under this section may not exceed five thousand dollars ($5,000).

(c) A sale or exchange of personal effects or of furniture or furnishings used for personal, family, or household purposes may be made under this section only if:

(1) In the case of a guardianship, the ward is under the age of 14 or, if 14 years of age or over, consents to the sale or exchange.

(2) In the case of a conservatorship, the conservatee either (i) consents to the sale or exchange or (ii) the conservatee does not have legal capacity to give such consent.

(d) Failure of the guardian or conservator to observe the limitations of subdivision (b) or (c) does not invalidate the title of, or impose any liability upon, a third person who acts in good faith and without actual notice of the lack of authority of the guardian or conservator.

(e) Subdivision (b) of Section 2543 does not apply to sales under this section.

(Enacted by Stats. 1990, Ch. 79.)

2547.
  

The guardian or conservator shall apply the proceeds of the sale to the purposes for which it was made, as far as necessary, and the residue, if any, shall be managed as the other property of the estate.

(Enacted by Stats. 1990, Ch. 79.)

2548.
  

No action for the recovery of any property sold by a guardian or conservator may be maintained by the ward or conservatee or by any person claiming under the ward or conservatee unless commenced within the later of the following times:

(a) Three years after the termination of the guardianship or conservatorship.

(b) When a legal disability to sue exists by reason of minority or otherwise at the time the cause of action accrues, within three years after the removal thereof.

(Enacted by Stats. 1990, Ch. 79.)

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