Let’s get to some brass tacks about who gets your stuff under your Will. We need to start with some
basics from the California Probate Code.
PC §7000 states that “Title to a decedent’s property
passes on the decedent’s death to the person to whom it is devised in the
decedent’s last will or, in the absence of such a devise, the decedent’s heirs
as prescribed in the laws governing intestate succession.”
PC §32 defines a “Devise” as either a disposition of
real or personal property by will or the act of disposing of real or personal
property by will. Depending on
whether it is a noun or a verb.
One of those weird words from grammar class . . . do they still teach
grammar? Thus, under PC §34, the
“Devisee” is the designated recipient of the devise.
Like with the making of the Will itself, there may
be issues of capacity to take under the Will, but while it seems more difficult
to make a Will, the list of people or entities that can receive under a Will is
pretty broad. That said, there are
a few common exceptions, such as you cannot kill someone and benefit from their
killing by inheriting their possessions.
Witnesses of the Will are not automatically eliminated, but there can be
some problems, so it is best to avoid the presumption of undue influence.
As important as it is to include proper persons to
receive under the Will, complications can arise for people that are skipped or
omitted from the Will. If someone
makes a Will and later marries, but never modifies the Will, their spouse may
be deemed omitted. As such, the
omitted spouse will have other statutory rights, including ½ of the community property,
½ of the quasi-community property and even a share of the decedent’s separate
property if the decedent passed without a Will, but in no event more than ½ of
the value of the separate property.
Probate Code §100 and §101.
Similar rules apply for omitted children, in that they too would
presumptively be entitled to a share as if the decedent passed without a
Will. The issue here is that there
might be intentional exclusion of a child. Nothing says that in a written Will you have to treat
everyone equally or fairly.
Granted, every rule seems to have exceptions, but we will not go into
this detailed area here.
Another area with possible odd developments is
simultaneous death. Who gets what
when a family dies in an accident?
We have a variety of laws, rules and presumptions to address this and
other oddities. We could probably
fill a book on such weird cases and the history of heirs fighting over the
money and courts trying to do what’s “fair”, but we have boiled this down over
many years of such fights and have rules for guidance. Suffice it to say, if you are aware of
any unusual fact related to someone’s death, ALWAYS consult a lawyer.
The last general area I want to discuss about who
gets your stuff, is to be aware of class gifts. That is, giving to a group of people. The most common class gift is, “to my
children”. Assuming we don’t omit
a spouse or a child born after the Will is made, and assuming we don’t make
specific gifts to specific children, this is the easiest way to give equally to
your offspring. Bu what happens if
you have several children, who have children, so now you have several
generations living? Next let’s
assume that one of your children die before you, but leave grand children. How do you intend to give. Never fear, the law is here! If you do not specifically name each
child, grandchild or other offspring, but simply leave everything to your
“children”, your “heirs”, your “issue” your “descendants”, you have created a
class gift. While there are all
sorts of weird rules, like pregnant but not born, at the time of your death, or
half-siblings, step-children, adopted children, and even bastard children, no
not that, bastard simply means born out of wedlock, and the like, we will keep
it simple for now. The Probate
Code provides 3 basic ways for class gifts to pass:
- Distribution for cases of
intestacy (without a Will) or where the Will does not specify (as per PC §245)
follow under PC §240
- Distribution “per stirpes”
or “by representation” under PC §246 or
- Distribution “per capita” at
each generation under PC §247
Break out your calculators, here we go!
PC §240 states that property be divided into as many
equal shares as there are living members of the nearest generation still
living, and deceased members of that generation who have issue living. Each living member of the closest
generation gets one share, and the share of each deceased member that leaves
living issue, is passed to the next generation and divided in a similar manner
to that next generation. Example
time. Grampa Jo dies, leaving two
children, Tom and Sally. Tom has
two children, Tony and Ted. Sally
has one child, Seth. Tom died
before Grampa Jo. Who gets
what? Tom and Sally would each get
1/2. However, since Tom has
passed, Tony and Ted share Tom’s 1/2, so they each get 1/4. Seth gets nothing, because Sally is
alive and she takes priority. If
Sally had also died before Grampa Jo, Tony, Ted and Seth would each get 1/3.
PC §246 states that where a will calls for property
to be taken under §246 or by representation, the property shall be divided in
as many equal shares as there are living children of the designated ancestor,
if any, and deceased children who leave issue then living. Each living child of the designated
ancestor is allocated one share, and the share of each deceased child who
leaves issue then living is divided in the same manner. So what about Grampa Jo’s family? Under §246, Tom and Sally would each
still get 1/2. However, since Tom
has passed, Tony and Ted share Tom’s 1/2, so they each get 1/4. Seth gets nothing, because Sally is alive
and she takes priority. However,
is Sally died, under §246, Tony and Ted each get 1/4 and now Seth gets 1/2.
PC §247 states that where a will calls for property
to be taken under §247 or per capita, the property shall be divided into as
many equal shares as there are living members of the nearest generation of
issue then living and deceased members of that generation who leave issue then
living. Each member of the nearest
generation of issue then living is allocated one share, and the remaining
shares, if any, are combined and then divided and allocated in the same manner
among the remaining issue as if the issue already allocated a share and their
descendants were then deceased.
This needs a slight more complex family to see this weirdness. Grandma Jane had 3 children, George,
Helen and Mike. George died before
his mother, leaving two children, Greg and Grace. Helen also died before her mother, leaving one child,
Hal. Mike is alive and well. Who is around to take from Jane’s
will? The last son, Mike, and 3
grand children, Greg, Grace and Hal.
Pure per capita divides equally among all survivors, so everyone gets
1/4. There is no benefit to
different generations, or representation taking of different percentage.
I bet you thought you were over the word problems in
school! What do you think Jane’s
heirs would receive by “representation” under PC §246. Post your answers if you dare. I’ll give you're the correct answer
next blog!
I hope you find this as interesting as I do. How would you want to treat your
heirs? I hope you will review your
Estate Plan with you're “A” Team, or at least begin to seek out an Estate
Planning Attorney to start this process.
Stay tuned for future blogs. However, if you have any questions, feel free to respond
below, or if you are interested in learning more about an Estate Plan, Wills,
Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child
Support, Spousal Support, Property Division, Modifications, Remarriage, or
Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.
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