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Court of Appeal, Fourth District, Division 2, California.

ESTATE OF Richard SCHILLER, Deceased. Marie SCHILLER et al., Petitioners and Respondents, v. LAWYERS SURETY CORPORATION, Objector and Appellant.

No. E011632.

Decided: October 11, 1994

Wilson, Kenna & Borys, Timothy W. Kenna and Ronald W. Ito, Los Angeles, for objector and appellant. Sidney W. Jones, Upland, for petitioners and respondents.


Lawyers Surety Corporation (Surety) appeals from a probate court surcharge order made during a proceeding to settle the final accounting of Kenneth H. Schiller (Kenneth), the administrator of decedent Richard Schiller's estate.   Kenneth was surcharged for misappropriating the proceeds from three Totten trust fund accounts of which he had taken possession as administrator.   Surety was ordered to pay under its representative bond, issued on behalf of Kenneth, as administrator, the amount of the misappropriated funds to Marie, David and Denise Schiller, the beneficiaries of the Totten trusts, and petitioners below (petitioners).1  Surety also appeals from the order of payment.



Kenneth was appointed administrator of the estate of Richard Schiller, a decedent, and letters of administration were issued to him on May 5, 1989.   Surety filed a $60,000 representative bond (bond) for Kenneth on the same date.2  This bond provided that “if the said Principal [i.e., Kenneth] shall faithfully execute the duties of the trust according to law, then this obligation shall be void;  ․”

Thereafter, on May 9, 1989, using such letters of administration, Kenneth withdrew funds from three bank accounts at Great Western Bank, which accounts were held in the decedent Richard Schiller's name in trust for petitioners Marie, David and Denise Schiller.   Kenneth received such funds by way of checks made payable to the decedent's estate, and he endorsed them in his capacity as administrator.   These funds were deposited into the estate's checking account and were listed in the original inventory and appraisement filed by Kenneth, as administrator.

The funds remained as listed “assets” of the estate until Lorraine Schiller objected to Kenneth's first and final accounting, as filed in the probate court.   After the November 26, 1991 hearing on that accounting, the probate court determined that the funds from the three bank accounts were not assets of the estate, and that the funds, and interest thereon, should be returned to petitioners.

It was subsequently discovered that Kenneth had not paid the funds and accrued interest to petitioners but had misappropriated certain of the estate's assets and the Totten trust monies prior to November 1990.   Lorraine Schiller then filed a petition in the probate court requesting that the court issue a citation to Kenneth to show cause why his administrator's powers should not be suspended, he be removed as the administrator, and he be surcharged in the amount of the losses, and why Surety should not be required to deposit with the court the full principal of its bond in the amount of $60,000.

After a June 17, 1992 hearing, the probate court surcharged Kenneth, as administrator, in the amount of $61,900.48.   It further concluded that Kenneth's misappropriation of the Totten trust funds was covered by the bond and Surety was ordered to distribute the entire $60,000 as follows:  $7,000 to Lorraine Schiller for a priority claim against the estate, $8,222 for attorney fees incurred in the administrator of the estate, $11,504, $11,504 and $10,564 respectively to Marie, David and Denise Schiller as their entitlement to the Totten trust funds, and the remainder, $11,206, to beneficiaries of the estate.

Surety has filed a timely notice of appeal, and makes the following contentions:

(1) The probate court acted in excess of its jurisdiction when it surcharged Kenneth as administrator.

(2) Surety's representative bond on behalf of Kenneth as administrator does not cover Kenneth's theft of the Totten trust funds (trust funds), which were not assets of the estate.

(3) Public policy disfavors expanding Surety's liability on its bond to cover nonestate assets.


DISCUSSIONA. The Probate Court Did Not Act in Excess of Jurisdiction When it Surcharged Kenneth as Administrator

Surety first contends that once the probate court determined that the trust funds were not assets of the estate, it no longer had jurisdiction to surcharge Kenneth, as the administrator, for his misappropriation of such funds.   The basis for this contention is that, according to Surety, “the court had no further jurisdiction with respect to the Totten Trust Funds since the probate court's in rem jurisdiction is limited to property that is or may be part of the estate of the decedent.”

Surety cites 12 Witkin, Summary of California Law (9th ed. 1990) Wills and Probate, section 329 at page 364 for this proposition.   However, Witkin merely says that “[t]he [probate] proceeding is said to be in rem, in that it conclusively determines, against all persons, such matters as the title to and distribution of the decedent's property.  [Citations.]”  This statement is not the functional equivalent of a statement that the court's jurisdiction is limited to property “that is or may be part of the estate of the decedent.”

In fact, a probate court is a court of general jurisdiction, with the same power and authority with respect to probate proceedings as otherwise provided by law for a superior court.  (Prob.Code, § 7050, subd. (b);  12 Witkin, Summary of Cal. Law, supra, § 334 at pp. 369–370.)   Once it determines that certain property, possession of which has been taken by the administrator in the course of administering the estate, is not an asset of the decedent's estate, it has the power to make orders concerning such property even though it is not an asset of the estate.  (§ 9860, subd. (a)(3);  12 Witkin, Summary of Cal. Law, supra, § 341 at pp. 377–378;  see also cases discussed in more detail in section II.B., ante.)   As explained in more detail below, in the event an administrator misappropriates such property, the probate court also has the power to hold the surety on the administrator's representative bond liable for the administrator's dereliction of duty as to such property.  (In re Russell's Estate (1937) 23 Cal.App.2d 103, 72 P.2d 219;  Elizalde v. Murphy (1909) 11 Cal.App. 32, 103 P. 904.)

Thus, Surety is incorrect when it asserts that the probate court lacked jurisdiction to surcharge Kenneth as the administrator.

B. Surety is Liable on the Representative Bond For Kenneth's Misappropriation of the Totten Trust Funds

The basic and dispositive issue here is whether a surety for an administrator of a decedent's estate can be held liable on a personal representative bond for losses caused by the administrator's misappropriation of property initially received by him as assets of the estate and accounted for as estate assets, but which ultimately are determined not to be part of the estate, but instead to belong to third parties.

We begin by reviewing the nature of a surety's obligation.  “ ‘[A] surety on an official bond undertakes no liability for anything which is not within the letter of his contract.   The obligation is strictissimi juris;  that is, he has consented to be bound only within the express terms of his contract and his liability must be found within that contract or not at all.   [Citation.]  “Where a surety bond is given pursuant to the requirements of a particular statute, the statutory provisions are incorporated into the bond.”   [Citation.]’  [Citation.]”  (Schmitt v. Insurance Co. of North America (1991) 230 Cal.App.3d 245, 258, 281 Cal.Rptr. 261.)   Although the terms of the bond may not make specific reference to the statute pursuant to whose requirements it is given, it will be construed as being a statutory bond if it appears from all the circumstances that it was given pursuant to such statute.  (Evans v. Shackelford (1923) 64 Cal.App. 750, 754, 222 P. 846;  Cal.Surety and Fidelity Bond Practice (Cont.Ed.Bar 1969) Statutory and Common Law Bonds, § 5.2, pp. 39–40.)

The bond here obviously was given by Surety pursuant to Probate Code section 8480 3 , which provides, in relevant part:

“(a) Except as otherwise provided by statute, every person appointed as personal representative shall, before letters are issued, give a bond approved by the court․

“(b) The bond shall be for the benefit of interested persons and shall be conditioned on the personal representative's faithful execution of the duties of the office according to law.”

Therefore, Surety here would be liable on the bond to “interested persons” if Kenneth failed to faithfully execute “the duties of the office [of personal representative] according to law.”

One of the rights and duties imposed by law on a personal representative in a decedent's probate proceeding is to take possession of property which appears presumptively to belong to another, but possession of which, in the judgment of the personal representative, will be necessary for purposes of administration.  (§ 9650, subd. (c).)  Once such property has been taken into possession by the personal representative, the representative must return it to the person legally entitled to it, with any profits of the property received by the representative, when there has been a determination that it is not an asset of the estate.  (§ 9651.) 4

Because the return of such property to the legally entitled person is one of the administrator's duties, the probate court has the power to enter an order directing the administrator to do so.   Thus, in In re Russell's Estate, supra, 23 Cal.App.2d 103, 72 P.2d 219, it was held that the probate court had jurisdiction to order an administrator to account for money in a bank account in the decedent's name, which money had been inventoried by the administrator as part of the estate in the course of her administration of the estate, even though an adverse claimant had obtained a judgment that such money belonged to her.

Further, because the administrator is duty-bound to return such property, the sureties on the administrator's bond can be held liable for trust funds received by the administrator during his administration of the estate, which funds were not actually assets of the estate.  (Elizalde v. Murphy, supra, 11 Cal.App. 32, 103 P. 904, relied upon by the court in In re Russell's Estate, supra, 23 Cal.App.2d 103, 72 P.2d 219.)

The reviewing court in Elizalde v. Murphy, supra, concluded that although “property held by a decedent in trust is not a part of his estate, and cannot be applied in satisfaction of his debts, or form a portion of his estate to be distributed to his heirs, and no presentation of a claim is required before the claimant of such trust property can maintain an action therefor, nevertheless, the administrator of the estate is not released from his duty to maintain the right of the estate to such property until it has been finally judicially determined that it is not the property of the estate․”

The court then quoted from an earlier Supreme Court opinion in Elizalde v. Elizalde (1902) 137 Cal. 634, 638, 70 P. 861:  “ ‘It thus becomes the duty of the personal representative to preserve the trust fund, in common with the other funds which have come into his possession․  The reason is plain.   It may often happen that a personal representative takes possession of funds which may be proved to be trust funds without any knowledge that such is the fact.   Not knowing the fact, it would be his duty to resist, on behalf of the heirs, legatees and creditors of the estate, any attempt to deprive it of a part of its assets.   That is, he is bound to assume for this purpose that the trust fund constitutes a part of the assets of the estate.’ ”  (11 Cal.App. at p. 36, 103 P. 904.)

The court concluded that if the decedent, before his death, was the trustee of the funds in question, his estate was not relieved from liability for the trust funds when he died, and even if the administrator also became personally liable to the beneficiary of the trust, “this would not release [the administrator's] sureties from the primary obligation incurred by [the administrator] as administrator.”  (Id. at p. 37, 103 P. 904;  see also Estate of Sidebotham (1956) 138 Cal.App.2d 412, 416–417, 291 P.2d 965.)

Surety advances several arguments in support of its assertion that the trial court erred in concluding that the bond covers Kenneth's misappropriation of the trust funds.

First, it argues that the trust funds were never assets of the estate, and that it was not Kenneth's duty as administrator to take possession of nonestate assets;  therefore, when he took possession of the funds, he was acting beyond his duties as administrator.   However, as shown above, the statutory law is to the contrary.   The Probate Code clearly provides that an administrator may take possession of property that appears to belong to a third party (§ 9650, subd. (c)), and that such property may, in due time, be determined to be not an asset of the estate.   The Probate Code further imposes a duty on the administrator to return such property to its owner upon such determination.   (§ 9651.)

Second, Surety urges that when Kenneth acquired possession of the trust funds, he became an involuntary trustee pursuant to Civil Code section 2224, which provides that:

“One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.”  (Emphasis added.)   Surety contends that “since Kenneth ․ obtained the Totten Trust Funds either by mistake or fraudulently, under Civil Code § 2224, [he] would be a trustee of the Totten Trust Funds” and its bond does not cover mistaken or fraudulent acts of a trustee.

The problem with this argument is that Surety does not refer to any part of the record that shows that Kenneth obtained the trust funds by mistake or through fraud, assuming he acquired them as a trustee.   True, it was ultimately determined by the probate court that the trust funds were not assets of the estate, but one may not infer from such a determination that Kenneth obtained them by mistake or fraud;  he purposefully took control of such funds in his capacity as administrator, and it was within his power as administrator to assume, for purposes of administering the estate, that such funds were in fact estate assets.  (Elizalde v. Murphy, supra, 11 Cal.App. at p. 36, 103 P. 904.)

Indeed, Kenneth ultimately misappropriated such funds, as well as various estate assets, after obtaining them as administrator, but that conduct does not establish that when he obtained the funds from the bank he did so mistakenly or fraudulently;  in fact, having used his letters of administration to obtain their release, he then accounted for them in the estate's assets.

Moreover, the cases relied upon by Surety for the dual propositions that (1) a personal representative who holds funds in trust can never be held liable in his or her capacity as representative, and (2) a personal representative can never be surcharged for misappropriating “non estate assets,” simply do not contain such broad holdings.   Further, as explained below, they are factually inapposite to this case.

In Nickals v. Stanley (1905) 146 Cal. 724, 81 P. 117, the decedent's widow sued Stanley, the administrator of the estate, as well as the sureties on his bond, to recover the proceeds of a policy of life insurance on the decedent's life, which proceeds were payable “ ‘to [the decedent's] executors or administrators ․ for the benefit of his wife, ․’ ”  (Id. at pp. 724–725, 81 P. 117.)   The widow alleged that the administrator had received the insurance proceeds and used them to pay for costs of administering the estate, rather than for her benefit.

The administrator's and sureties' demurrers to the amended complaint (complaint) were sustained, and the California Supreme Court affirmed on three separate grounds, two of which related to the sureties' demurrer.5  As to the sureties' demurrers, one ground was that the complaint failed to state a cause of action against the sureties because, “[i]f the proceeds of the insurance policy were received by Stanley as a trustee for the widow and solely for her use, because of the terms of the agreement between deceased and the insurance company, such proceeds were in no sense property of the estate, and were not received by him in the discharge of any official duty as administrator” (emphasis added), and the sureties “were responsible only for the faithful performance of such duties as were imposed by law upon Stanley, as administrator of the estate of the deceased.”  (Id. at p. 725, 81 P. 117, emphasis in original.)

Regarding the first ground, life insurance proceeds do not become part of a probate estate unless they are payable to the estate of the decedent.   The proceeds in Nickals were not payable to the estate, but to the decedent's executors or administrators for the benefit of the widow.   Although Stanley received such proceeds because he was the administrator, it was not his duty, as administrator, to obtain such proceeds as assets of the estate;  in other words, the term “his executors or administrators” as used in the life insurance policy was simply a way of designating the particular person or persons who were to act as trustees of the proceeds for the benefit of the widow, and it did not describe the capacity within which they acted when receiving and dealing with such proceeds.

Here, in contrast, the trust funds were not payable to the decedent's administrator;  instead, Kenneth had to use his official administrator's capacity and letters of administration to obtain the release of such funds to the estate, and in receiving and dealing with such funds, Kenneth was acting in his capacity as administrator.

The second ground for sustaining the sureties' demurrers in Nickals was that, even if the insurance proceeds had become assets of the estate, there could be no liability on the part of the sureties and no action could be maintained on the bond until there had been an order of the probate court fixing the liability of the administrator (id. at p. 726, 81 P. 117).   Here, of course, there is a probate order establishing Kenneth's liability relating to the trust funds (albeit they were not estate assets) and thus that prerequisite to Surety's liability exists.

In Barker v. Stanford (1879) 53 Cal. 451, the probate court made an order of final distribution which stated that the funds in the hands of the administrator, Helen Stanford, were to be held and managed by her in trust for the children of the deceased, as apparently requested in the decedent's will.   (Id. at p. 455.)   Pursuant to this order, Stanford took the funds and held them in her capacity as trustee.  (Ibid.)  The reviewing court held that because Stanford had taken the funds in her capacity as trustee, she was no longer subject to the probate court's orders as to such funds in her capacity as administrator of the decedent's estate, and the sureties upon her bond as administrator were not liable for her acts as trustee in the application of such funds.  (Id. at p. 456.)

Thus, in Barker v. Stanford, the order of final distribution effectively terminated Stanford's duties as administrator as to the funds in question, and made her trustee of such funds, and whatever she did with such funds as trustee could not form the basis for liability upon the administrator's bond.   Here, however, Kenneth's wrongful appropriation of the estate's assets and the trust funds, which he had taken and included in his accounting of the estate's assets, occurred before any final order of distribution, while he was still acting as the administrator of the estate, before any order that such funds were no longer assets of the estate and without any order that he should act as trustee over such funds.

In Heydenfeldt v. Jacobs (1895) 107 Cal. 373, 40 P. 492, the plaintiff was a minor child of the deceased, and the defendants were executors of the decedent's estate.   The decedent had obtained a life insurance policy, the proceeds of which were payable to any wife that survives him and his minor children.   The executors collected the proceeds of the policy from the insurance company, and reported, inventoried and accounted for it as part of the estate assets, and there was a final distribution of the entire estate, including the proceeds of the policy.   Thereafter, plaintiff sued the executors personally, and not as executors, for his share of the insurance proceeds.   The executors answered, alleging that plaintiff had had notice and knowledge that the insurance proceeds were included in the estate's assets and were subject to distribution as part of the estate, that he had appeared by counsel in the probate proceedings and had made no objection to the distribution of the proceeds at that time.   He was, therefore, estopped from claiming any portion of the proceeds.

Plaintiff made a motion for judgment on the pleadings on the ground that the answer did not set up a defense;  the motion was granted.   On appeal, the California Supreme Court affirmed, holding that defendants had not pled facts sufficient to support an estoppel, because they had not alleged that they did not know, nor did they have any means of knowing, to whom the proceeds of the policy belonged, nor did they plead that they had relied on plaintiff's alleged conduct in knowingly allowing the proceeds to be distributed as part of the estate despite his knowledge of his right to a portion of the proceeds, nor that his conduct in so behaving had induced them to deal with the proceeds as alleged in their answer.  (107 Cal. at pp. 377–378, 40 P. 492.)

The Court also commented on a point which does not appear to have been raised by the parties (107 Cal. at pp. 374–375, 40 P. 492), and it is this language upon which Surety relies.   The Court stated:

“[The executors] were sued personally and not as executors.   The unnecessary statement in the complaint of the fact that when they collected the policy they were acting as executors is of no consequence.   The policy was no part of the assets of the estate, and [the executors] had no right as executors to collect;  and, if liable at all, they were liable personally, as they were sued, and not as executors.   And having wrongfully come into possession of the amount of the policy—whether by mistake or otherwise—they became trustees ‘of the thing gained for the benefit of the person who would otherwise have had it.’  (Civ.Code, secs. 2223, 2224.)”  (107 Cal. at p. 377, 40 P. 492.)

Given that the plaintiff had sued the defendants individually, and not in their capacities as executors, the above-noted statement about defendants' rights and duties as executors as to the insurance proceeds is dicta, and hence not binding.

Furthermore, in 1895, at the time Heydenfeldt was decided, there was no statutory equivalent of sections 9650 and 9651, which sections, as noted above, give administrators the right to take possession of property to which another is presumptively entitled, when taking possession of such property appears to be necessary for proper administration of the estate.   Instead, at the time Heydenfeldt was decided, administrators were required to obtain a court citation ordering any person suspected of holding property belonging to the estate to appear before the court to be examined, under oath, as to such property, and such property only could be recovered pursuant to an action at law.  (See Code Amends. (1880) (Code Civ.Proc.) ch. 85, § 41 at p. 85, §§ 43–45 at pp. 86–87.)

Thus, the executors in Heydenfeldt had no colorable right to take possession of property which did not clearly belong to the decedent;  in contrast, under the law applicable here, Kenneth did have a statutory right, as administrator, to take possession of property to which another person was “presumptively entitled,” (§ 9650, subd. (c)) if in his judgment possession of such property was necessary for purposes of administering the estate.  (§ 9650, subd. (c).)  As noted earlier, the record does not show that he, as administrator, wrongfully came into possession of the trust funds.

Third, Surety also argues that its bond was not intended to protect “third parties who did not have an interest in the assets of the estate, ․”  However, as previously noted, the surety's liability under the bond is defined by section 8480, and the statute requires that the bond be given for the benefit of interested persons and to ensure the administrator's faithful performance of the legal duties of his office, which duties, as explained above, include the responsibility to care for and return the property of such third parties, possession of which was taken by the administrator in his or her official capacity.   In our view, such third parties come within the phrase “interested persons” as used in section 8480 because they clearly do have an interest in property which belongs to them even though it is listed as an estate asset and held as such by an administrator.

Fourth, Surety additionally complains that this interpretation of the bond's coverage “expands” its liability by “extending” the bond to cover the claims of third parties for the loss of nonestate assets.   Not so.   As discussed earlier, a surety's liability on a bond for a personal representative is defined by statute.   By statute, the representative's duties may include taking possession of nonestate assets, and returning such assets when it is determined that they are not assets of the estate.   Thus, a surety is on notice that it may be liable for the administrator's breaches of duty concerning such property while it is within her or his dominion and control, and may adjust the premiums on its bonds accordingly.

C. No Public Policy Favors Excluding Interested Persons Such as Petitioners Here, From the Protection Afforded by Representative Bonds

Surety further expresses its concerns that making the bond cover claims of such third parties decreases the protection afforded to beneficiaries and creditors of the estate, and that this would be contrary to public policy.   However, the Legislature clearly intended such bonds to be subject to the claims of persons such as petitioners as well as to the claims of benefi-ciaries and creditors;  such bonds are for the benefit of “interested persons.”  (§ 8480, subd. (b).)  As expressed earlier, “interested persons” include not only beneficiaries and creditors, but also persons such as petitioners below, who have an interest in property acquired by an administrator and which is later determined not to be an asset of the estate.   (See § 48, subd. (b), which states that the meaning of “interested person” “may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”)

Furthermore, there is no reason that a representative bond cannot be fixed in an amount sufficient to cover all property held as part of the estate, even though some of such property may later be determined not to be assets of the estate.6  “Property” is defined in section 62 as “․ anything that may be the subject of ownership and includes both real and personal property and any interest therein.”   It is not limited to property that constitutes assets of the estate.

Surety also posits a public policy argument that “[i]ncreasing the scope of liability of a representative's bond to include liability for non estate assets will increase the costs of the sureties and will result in increased bond premiums to estates.   This will decrease the assets of estates available for distribution to beneficiaries and creditors of estates.   The beneficiaries and creditors of the estate will not receive any benefit whatsoever from such an increase in liability of the surety since estates are already protected from loss caused by the torts of the personal representative,” and “Under California law, the estate of a decedent is not liable for the torts of the personal representative of the estate.  [Citation.]”

As noted above, our holding will not “increase the scope of liability”;  the scope of liability is set by section 8480.   Furthermore, we are aware of no reason, nor does Surety supply one, that “beneficiaries and creditors” of the estate should be entitled to increased estate assets at the expense of decreased protection against administrators' breach of their duties to interested persons such as petitioners here.   Surety's argument points out its continuing misconception that the Surety's representative bond relates to liability for assets (estate or nonestate).   To the contrary, the bond is conditioned upon the administrator's faithful execution of the duties of his or her office according to law.   As noted above, Kenneth, as administrator, was required by law to return to the person legally entitled any property taken by the administrator for the administration of the estate, but which is later determined to be not an asset of the estate.   The statutory bond focuses on the conduct of the administrator so acting in such capacity, not on the status of the property which he or she may hold in the course of administering the estate.



We conclude that the trial court did not err in finding that Kenneth, after taking the trust funds in his capacity as administrator and including them in the estate's inventory, failed to faithfully execute his statutory duty to return such funds to the petitioners when ordered to do so by the probate court, and in then surcharging the administrator for the amount of those funds.   It further properly ordered Surety to pay to the beneficiaries of those funds the amounts so surcharged from the bond principal.



The judgment is affirmed.


1.   Petitioners are also heirs of Richard Schiller in the probate proceeding.

2.   Code of Civil Procedure, section 995.320, subdivision (a)(3) provides that “[i]f the amount of the bond is based upon the value of property or an interest in property, [the bond shall include] a description of the property or interest, and the principal's estimate of the value of the property or interest, or if given pursuant to the estimate of the beneficiary or court, the value as so estimated.”   This requirement is applicable to representative bonds issued on behalf of administrators such as Kenneth.The bond here, however, contains no information which relates the amount of the bond to any particular property, nor to anyone's estimate of the value of any property.   We mention this matter because Surety contends, as a premise to one of its contentions, that the amount of the bond shows that the parties never intended the bond to cover the Totten trust funds in addition to the assets of the estate.   However, it is impossible, given the state of the record and the noncompliance with Code of Civil Procedure section 995.320, to make any determination as to the value or estimate of the value of any property or interest in property comprising the estate assets.

3.   All further statutory references will be to the Probate Code, unless otherwise noted.

4.   Probate Code section 9651 provides, in relevant part:“(a) A personal representative who in good faith takes into possession real or personal property, and reasonably believes that the property is part of the estate of the decedent, is not:“(1) Criminally liable for so doing.“(2) Civilly liable to any person for so doing.“(b) The personal representative shall make reasonable efforts to determine the true nature of, and title to, the property so taken into possession.“(c) ․ If the property is later determined not to be part of the estate of the decedent, the personal representative shall deliver the property, or cause it to be delivered, to the person legally entitled to it, together with all rents, issues, and profits of the property received by the personal representative, ․”

5.   The ground on which the administrator's demurrer was sustained was that Stanley, the administrator, had been sued in his official capacity only, and that because the complaint failed to state a cause of action against the estate, it could not state a cause of action against the administrator.  (Id. 146 Cal. at pp. 726–728, 81 P. 117.)

6.   Section 8482 provides, in relevant part:“(a) The court in its discretion may fix the amount of the bond, but the amount of the bond shall not be more than the sum of:“(1) The estimated value of the personal property.“(2) The probable annual gross income of the estate.“(3) If independent administration is granted as to real property, the estimated value of the decedent's interest in the real property.“(b) Notwithstanding subdivision (a), if the bond is given by an admitted surety insurer, the court may establish a fixed minimum amount for the bond, based on the minimum premium required by the admitted surety insurer.”  (Emphasis added.)

TIMLIN, Associate Justice.

RAMIREZ, P.J., and HOLLENHORST, J., concur.