Intestate Distribution

Question 1

Intestate Community Property (CP)

Answer 1

For all CP and quasi-community property (QCP), the surviving spouse or domestic partner takes all of the CP and QCP.

Question 2

Intestate Separate Property (SP)

Answer 2

For the decedent’s SP, the surviving spouse takes all of it only if the decedent did not leave any surviving issue, parent, siblings, or issue of siblings.

Question 3

Decedent dies leaving surviving spouse or domestic partner and one child, or parents, or their issue

Answer 3

The surviving spouse takes one-half of the SP.

Question 4

Decedent dies leaving surviving spouse or domestic partner and More than one child or their issue

Answer 4

The surviving spouse takes one-third of the SP.

Question 5

Intestate Succession Order

Answer 5

Applies when decedent dies w/o leaving a surviving spouse or domestic partner, and/or for the portion of the estate remaining after the surviving spouse receives his share:
1. To issue; 2. To parents, if no issue; 3. Issue of parents; 4. Grandparents, if none of the above, 5. Issue of Grandparents; 6. Issue of predeceased spouse/partner; 7. Next of kin; 8. Parents of predeceased spouse/partner; 9. Issue of parents of predeceased spouse/partner; 10. Escheat to state.

Question 6

120-hour rule

Answer 6

For intestate succession to apply, the heir must survive the decedent by 120 hours or he will be deemed to have predeceased the decedent, unless the application of the 120-hour rule would result in escheat to the state.

Question 7

Advancement

Answer 7

If a person dies intestate, property that the decedent gave to an heir during lifetime is only treated as an advancement against that heir’s share of the intestate if the decedent declared and the heir acknowledged such in a writing.

Question 8

Per capita- representation distribution

Answer 8

When intestate succession applies per capita at each generation distribution, the first generation of with living takers is allocated a share in which all living persons at that generational level take an equal share; next, the shares of all deceased persons at that generational level are combined and then divided equally among the takers at the next generational level in the same way, resulting in persons of the same degree of kinship to the decedent always taking equal shares.

Question 9

Modern per stirpes, or per capita with representation

Answer 9

Probate Code §240 makes an equal distribution at the first level of living heirs. If any of those heirs are deceased and leave issue still living, their share will be distributed equally between their issue. If any deceased heirs don’t leave issue, then their share will be added back to the original distribution and divided among the remaining closest heirs.

Question 10

Strict per stirpes

Answer 10

Probate Code §246 makes an equal distribution at the first level in which there are surviving heirs or deceased heirs who left issue; the issue of the deceased heirs share their parents share equally.

Question 11

Effect of Adoption for inheritance

Answer 11

Adoption severs the relationship of a natural parent and an adopted child unless the spouse of the natural parent adopts the child, and the adopted child and natural lived together at any time as parent and child.

Question 12

Step and foster children intestate succession

Answer 12

For the purpose of intestate succession, a relationship exists between a parent and step or foster children only if the relationship began during child’s minority, continued throughout lifetime of parties, and a legal barrier prevented adoption.