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  • JUST WHO ARE YOUR HEIRS IS A GOOD QUESTION

    JUST WHO ARE YOUR HEIRS IS A GOOD QUESTION

    This week’s question:
    I have often wondered about the legal definition of “heirs”. Just who are they and what makes one an heir? My husband and I have a living trust so it may be rather academic for us, but it would be nice to know.
    /s/Angela A.
    Almaden Valley
    Dear Angela:
    Very interesting question, Angela. And it is just great that you and your husband have a living trust. So, all of your property will pass through the trust and avoid Probate Court down at 191 North First Street and save your estate thousands of dollars.
    You are exactly right when you say the topic of “heirs” is rather academic for you and your husband. Some people do not have a will or a trust at all. If they have no will, we say that they died “intestate”, i.e., without a will. In that case, the State of California takes over and decides where the person’s property goes.
    If that should arise, the Court will need to make findings as to who are the person’s heirs. This sounds simple, and sometimes it is, but on occasion it can be quite complicated—especially when a lot of money is at stake and the “shirttail” relatives live all over the world.
    Relationships are very, very, important. The lawyers, judge, and parties may consult a “Table of Consanguinity”, a copy of which appears in the accompanying chart. “Consanguinity” is “blood relation” from the Latin and basically means being from the same kinship as another person.
    You will note from the accompanying chart that one can see the degree of relative consanguinity from the rows and numbers. Each level of lineal consanguinity, or generation, appears as a row, and individuals with a collaterally consanguineous relationship share the same row. The number in each box indicates the degree of relationship, a crucial principle.
    Of course, many state laws are different from state to state and that is true when it comes time to define “heirs” in California.
    One needs to review the California Probate Code to follow the definition of “heirs” in our state, and how the law of “intestate succession” works in this state.
    A good place to start with your search engine is California Probate Code §6400, entitled “Intestate Succession”. If the person died without a will, he or she is said to have died “intestate” as stated in §6400. “Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in this part”.
    Then as you read §6401 you soon see that it is important to know if the decedent left community property, separate property, or a combination of the two. You will also see that who the heirs are depends on how many people are in each class, such as surviving spouse under §6401, as well as issue, parents, brothers, sisters, and the like.
    You can see that it can get rather tricky rather quickly. As you read Probate Code §6402 it is readily apparent that the definition of heirs in California depends on the situation. Each family setting is different and one simple definition just does not work.
    For example, §6402 goes on to state that if there is no surviving spouse of the decedent, then the property goes to the “issue of decedent, the issue taking in 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”. So, you can see that those little numbers are important in the accompanying Table of Consanguinity since the numbers show “degree of kinship” or “degree of relationship” with the decedent.
    One would need to do a little homework to answer the question as to who your heirs are in your situation, Angela. A relatively short Almaden Times article is not going to be able to answer that question in a few hundred words. In fact, you and your husband may need to visit a lawyer for a legal opinion
    By the way, consanguinity is not only important when it comes to inheritance, but also marriage, the definition of incest, and other areas as well.
    Once again, good question, Angela. I hope this information was helpful.
    /s/Donald J. DeVries
    Almaden Times

    You can reach Mr. DeVries with your questions by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your name will not be used. No attorney-client relationship is created by these articles.

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