Identifying The Intestate Heirs

Yesterday, I explained how to calculate the intestate share of the surviving spouse. In that discussion, we saw how generally every heir other than the spouse is entitled to either a portion of a 1/2 share, or a portion of 2/3 of the separate property of the estate.

This section, then, discusses how that remaining portion of the estate is distributed, if there is a surviving spouse or domestic partner, or in the event there is not, how the entire estate will be distributed. The remainder or entirety of the estate is distributed as follows:

  • To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
  • If there is no surviving issue, to the decedent's parent or parents equally.
  • If there is no surviving issue or parent, to the issue of the parents or either of them (e.g. siblings or step or half siblings), the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240 (discussed below).
  • Same pattern, except grandparents or their issue.
  • Same pattern, except issue of predeceased spouse.
  • Same pattern, next of kin.
  • Predeceased spouse's parents or their issue (e.g. mother or father in laws, sibling in laws, etc.)

I previously discussed this manner of succession, in the post where entitled, How Your In-Laws May Inherit Your Estate.

Method of Intestate Succession

Once it is determined who the people to inherit are, we then turn to determine what their actual share will be. The relevant portion of the California Probate Code states:

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 living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.

Whoah there legalese. This is the scenario in plain English. Assuming the relevant level of heir is the decedent's children. The estate, then is divided by the number of children who are either living or have living issue (children, etc.). If the predeceased children have no issue, then they are not entitled to a share, since there is no one to give it to.

Thus, going with or previously demonstrative hypothetical whereby the decedent has children A, B, and C, and A and C are dead but have living children D&E and F& G respectively, and B is alive. Thus, because B is still alive, the relevant degree of relationship at which the estate is initially be divided will be at the child level. So A, B, and C would each receive a 1/3 share. Then, the section tells us, each deceased member of that generation's share is divided in the same manner among his or her living issue. So, D&E and F&G will each receive 1/2 of their parents' would be 1/3 shares, or 1/6.

Also, don't forget that if there is a surviving spouse, the share we just calculated may only be of the 2/3 share of the decedent's separate property, rather than 1/6 of the estate as a whole, which would be 1/9. It's definitely enough to make your head spin. Just another reason to thank the legal gods for Attorneys who specialize in Estate Planning.

Additionally, I will just mention in passim that this is an example of a per capita method of distribution, since the initial division occurs at the generation with living issue.

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