Saturday, August 17, 2013

Come ‘N’ Get It! Who takes under your Will – The Devisees


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!

-       Distribution for cases of intestacy (without a Will) or where the Will does not specify (as per PC §245) follow under PC §240

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.

-       Distribution “per stirpes” or “by representation” under PC §246

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.

-       Distribution “per capita” at each generation under PC §247

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.