2. Distributing Decedent's Estate - Categorize Probate Assets

Question 1

Separate Property

Answer 1

a) property owned before THIS marriage;
b) property acquired after marriage by GIFT or INHERITANCE;

100% goes to decedent’s estate

Question 2

Community Property

Answer 2

a) Earnings during marriage

b) All property acquired with earnings during marriage

Question 3

Community Property Presumption

Answer 3

If married and owned, presumption is that it is CP.

Burden is always on the challenger to show that property is SEPARATE.

Question 4

Quasi-Community Property

Answer 4

a) All personal property, wherever situated and all real property in California acquired by decedent while domiciled in a separate property state that would have been community property of decedent if domiciled in CA

Question 5

CP vs. QCP

Answer 5

1) Only acquiring spouse owns QCP asset while alive
2) Non-acquiring spouse must survive acquiring spouse with QCP
3) May only recapture half of QCP asset

Question 6

Recapture (CPC 102)

Answer 6

Decedent’s surviving spouse may require the transferee to restore to D’s estate 1/2 of the property if:

1) D died domiciled in CA
2) D transferred property to a 3P without consideration of substantial value and without spouse’s consent; and
3) Transfer was one of the following:

a) D retained right to possession (life estate or T/C), enjoyment, or income of the property; OR
b) D retained power to revoke, consume, invade, or dispose of the property; OR
c) D was JT with ROS with 3P

Question 7

Valid Agreement Otherwise

Answer 7

Section 100: Community Property
- a husband and wife may agree in writing to divide their community property SOME OTHER WAY

(Same with Section 101: Quasi-Community Property)

Question 8

Choice of Law

Answer 8

Personal property: State of domicile at death (always CA in hypos)

Real Property: State where RP is located

Question 9

Domestic Partnership Limitations

Answer 9

1) Can’t be married to someone else;
2) Can’t be related by blood;
3) Must be 18 or older;
4) Either a) same sex or b) over 62; and
5) capable of consent

Question 10

Putative Spouses

Answer 10

Good Faith spouses inherit

- just one or both have to believe

Question 11

Common Law Marriaged

Answer 11

CA recognizes other states’ common law marriages once a couple completes the domicile requirement in that other state

Question 12

Filed for Divorce

Answer 12

Still considered a “spouse” until final decree (divorce or annulment)

Question 13

Amount of Decedent’s Estate Going to Surviving Spouse (CPC 6401)

Answer 13

CP: Surviving spouse gets D’s entire half

QCP: Surviving spouse gets D’s entire half

SP: Surviving spouse gets:

1) ALL if: no surviving issue, parent, brother, sister, or issue of a deceased brother or sister (niece/nephew)
2) HALF if: a) D leaves only one child or the issue of one deceased child; b) decedent leaves no issue but leaves parent(s) or their issue or issues of either of them
3) ONE-THIRD if: a) D leaves more than 1 child; b) D leaves one child and the issue of one more other deceased children; c) D leaves issue of 2+ deceased children

Question 14

Shares to Descendants & Others

Answer 14

After dealing with surviving spouse (or lack thereof), use table of consanguinity.

Question 15

Half-Bloods (CPCC 6406)

Answer 15

Except for instances of adoption, treat as full-blooded

Question 16

Heir-hunters

Answer 16

The Court, on its own motion, can inquire into circumstances surrounding the execution of a K with the heir hunter, and refuse to distribute

Question 17

“By, through, and from”

Answer 17

from: A can inherit from Mom and Dad
by: Mom and Dad can inherit from A
Through: A’s issues can inherit, A can inherit from Mom and Dad’s family