Legal Question in Wills and Trusts in California
mom died intestate
Dad died years ago as did a brother who has a surviving child. Does mom's grandchild take by right of representation the same as mom's surviving children? Mom's home is worth about $200,000 and nothing else.
2 Answers from Attorneys
Re: mom died intestate
Generally, under intestate succession, if your brother died leaving "issue" (offspring), your brother's share will be given to his child(ren) in equal shares.
Re: mom died intestate
The rule of intestate succession where the spouse is predeceased basically means that both you and the grandchild will take by right of representation. Here's how it works: (1) Start dividing at the first level below the deceased person in which there are living persons. That means, you will divide at your and your brother's level since you are alive. (2) Divide by the total of living persons and deceased persons with issue at that level. That means, you will divide by 2 -- you and your brother, since he left issue. (3) Each living person gets one share. That means you get one half. (4) Each issue of a deceased person shares equally in the deceased person's share. That means that the grandchild gets the other 1/2. If your brother had had two children, each would get 1/4, etc. The references for these rules are found in Probate Code Sections 240 and 6402(a).
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