Legal Question in Wills and Trusts in California
Facts: Decedent died intestate, leaving a spouse, no children and 2 (divorced) parents. Decedent's father died after decedent's death, but before distribution. Question: Does the now dead father's 1/4 share pass according to that father's will, or according to intestacy rules? If according to intestacy rules, then is it per stirpes to the 3 children of both parents and the 1 step-sibling from just the father (so 4 siblings splitting 1/4 of the estate)? Probate code just says passes to the parents 'equally', but not whether intestacy trumps an heirs will.
2 Answers from Attorneys
The share of a beneficiary who dies after the death of the decedent belongs to the beneficiary's probate estate, and passes under the terms of the beneficiary's will or by intestate succession if there's no will.
The exception, which doesn't apply here as you have an intestate decedent, is if the beneficiary died before the time required for survivorship within the decedent's estate plan. If this were the case, then the dead beneficiary's share passes as if he or she died before the decedent.
The first question I have is as to the nature of the decedent husband's estate. He was married at the time of his death. Is all of his estate community property? What portion of his estate is separate property? Once you categorize his estate, distribution is clear.
If all of his estate is community property, all of the estate goes to the wife. If a portion of his estate is his separate property, 1/4 belongs to his father's estate, which is then re-distributed according to the father's will.
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