Probate law can be confusing, and many of the terms used by California probate practitioners are unfamiliar to a layperson. The California probate code defines over 65 terms under sections 20-88 of the California Probate Code. Some of the most used terms in California probate estates are explained below.
What Is A Beneficiary In California Probate?
California Probate Code § 24 defines the term “beneficiary” as follows:
“Beneficiary” means a person to whom a donative transfer of property is made or that person’s successor in interest, and:
(a) As it relates to the intestate estate of a decedent, means an heir.
(b) As it relates to the testate estate of a decedent, means a devisee.
(c) As it relates to a trust, means a person who has any present or future interest, vested or contingent.
(d) As it relates to a charitable trust, includes any person entitled to enforce the trust.
What Is The Difference Between A Devisee And An Heir Under The California Probate Code?
A devisee is someone is designated in a will to receive a portion of the Decedent’s estate, while an heir is someone entitled to take under California’s laws of intestate succession.
Sections 32 and 34 define “devise” and “devisee,” respectively, as follows:
“Devise,” when used as a noun, means a disposition of real or personal property by will, and, when used as a verb, means to dispose of real or personal property by will.
(a) “Devisee” means any person designated in a will to receive a devise.
(b) In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
An “heir” is defined in § 44 of the California Probate Code:
“Heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code.
What Is The Difference Between Community Property And Quasi Community Property?
Community property means generally everything that spouses or domestic partners own together. Quasi-community property generally means property that was acquired by either or both spouses or domestic partners while they lived in another state that, if it had been acquired while the party was living in California, it would have been community property.
California is a “Community Property State. California Community Property laws apply when the parties 1) have a legal marriage, and 2) are domiciled in California.
When looking at property (e.g., real estate, securities, cash) to determine if it is “community property”, the analysis should start with some basic presumptions and rules:
- All property acquired during marriage by the labor and earnings of either spouse is presumed to be community property.
- All property acquired before marriage or after divorce, death, or permanent physical separation is presumed to be separate property.
- All property acquired during marriage to only one spouse by gift, bequest, devise, or descent is the separate property of the receiving spouse.
Pursuant to § 28 of the California Probate Code:
“Community property” means:
(a) Community property heretofore or hereafter acquired during marriage by a married person while domiciled in this state.
(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person while domiciled elsewhere, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition.
(c) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person in exchange for real or personal property, wherever situated, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired.
“Quasi-Community Property” is property that was acquired in another state that would be considered community property if it were acquired in California. At death, the surviving spouse has a 1/2 interest in quasi-community property titled in the decedent’s name.
Section 66 of the California Probate Code defines “Quasi-community property” as follows:
“Quasi-community property” means the following property, other than community property as defined in Section 28:
(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.
(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired.
How Is “Domestic Partner” Defined In The California Probate Code?
Pursuant to § 37 of the California Probate Code:
(a) “Domestic partner” means one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State pursuant to Division 2.5 (commencing with Section 297) of the Family Code, provided that the domestic partnership has not been terminated pursuant to Section 299 of the Family Code.
(b) Notwithstanding Section 299 of the Family Code, if a domestic partnership is terminated by the death of one of the parties and Notice of Termination was not filed by either party prior to the date of death of the decedent, the domestic partner who survives the deceased is a surviving domestic partner, and shall be entitled to the rights of a surviving domestic partner as provided in this code.
California does not have “common law marriage”, so when someone dies who is in a “meretricious relationship” (i.e., not married and not a “domestic partner”, but living together in an intimate relationship), property distribution is governed solely by the agreement of the unmarried partners.
What Is A Fiduciary In California Probate?
“Fiduciary” means personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer To Minors Act (Part 9 (commencing with Section 3900) of Division 4), or other legal representative subject to this [the California Probate] code.
Who Is An Interested Person In California Probate Matters?
It depends on the proceeding. Section 48 of the California Probate Code defines the term “interested person” and states:
(a) Subject to subdivision (b), “interested person” includes any of the following:
(1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.
(2) Any person having priority for appointment as personal representative.
(3) A fiduciary representing an interested person.
(b) The meaning of “interested person” as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.
What Is The Difference Between A Personal Representative And A General Personal Representative?
Section 58 of the California Probate Code explains the difference between a “personal representative” and a “general personal representative” in California probate matters:
(a) “Personal representative” means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.
(b) “General personal representative” excludes a special administrator unless the special administrator has the powers, duties, and obligations of a general personal representative under Section 8545.
What Is A Surviving Spouse Under The California Probate Code?
A surviving spouse in California is the spouse or registered domestic partner of a decedent, who was married to the decedent at death. Section 78 of the California Probate Code sets forth what the term “surviving spouse” does not include:
“Surviving spouse” does not include any of the following:
(a) A person whose marriage to, or registered domestic partnership with, the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage or registered domestic partnership, the person is married to, or in a registered domestic partnership with, the decedent at the time of death.
(b) A person who obtains or consents to a final decree or judgment of dissolution of marriage or termination of registered domestic partnership from the decedent or a final decree or judgment of annulment of their marriage or termination of registered domestic partnership, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as spouses.
(c) A person who, following a decree or judgment of dissolution or annulment of marriage or registered domestic partnership obtained by the decedent, participates in a marriage ceremony with a third person.
(d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital or registered domestic partnership property rights.