California Probate Code 9653 – (a) On application of a creditor of the decedent or the estate, …
(a) On application of a creditor of the decedent or the estate, the personal representative shall commence and prosecute an action for the recovery of real or personal property of the decedent for the benefit of creditors if the personal representative has insufficient assets to pay creditors and the decedent during lifetime did any of the following with respect to the property:
(1) Made a conveyance of the property, or any right or interest in the property, that is voidable as to creditors under the Uniform Voidable Transactions Act (Chapter 1 (commencing with Section 3439) of Title 2 of Part 2 of Division 4 of the Civil Code).
Terms Used In California Probate Code 9653
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Creditor: means a person who may have a claim against estate property. See California Probate Code 9000
- Decedent: A deceased person.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Person: means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. See California Probate Code 56
- Personal property: All property that is not real property.
- Personal representative: means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person's status. See California Probate Code 58
- Property: means anything that may be the subject of ownership and includes both real and personal property and any interest therein. See California Probate Code 62
- Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
- Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
(2) Made a gift of the property in view of impending death.
(3) Made a direction to transfer a vehicle, undocumented vessel, manufactured home, mobilehome, commercial coach, truck camper, or floating home to a designated beneficiary on the decedent’s death pursuant to § 18102.2 of the Health and Safety Code, or Section 5910.5 or 9916.5 of the Vehicle Code, and the property has been transferred as directed.
(b) A creditor making application under this section shall pay such part of the costs and expenses of the suit and attorney’s fees, or give an undertaking to the personal representative for that purpose, as the personal representative and the creditor agree, or, absent an agreement, as the court or judge orders.
(c) The property recovered under this section shall be sold for the payment of debts in the same manner as if the decedent had died seized or possessed of the property. The proceeds of the sale shall be applied first to payment of the costs and expenses of suit, including attorney’s fees, and then to payment of the debts of the decedent in the same manner as other property in possession of the personal representative. After all the debts of the decedent have been paid, the remainder of the proceeds shall be paid to the person from whom the property was recovered. The property may be sold in its entirety or in such portion as necessary to pay the debts.
(Amended by Stats. 2015, Ch. 44, Sec. 27. (SB 161) Effective January 1, 2016.)