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Bay Area Estate And Tax Planning Law Firm
Estate Planning
Trust Administration and probate

Intestate succession is not as straightforward as you may think

| Feb 28, 2015 | Uncategorized |

We may be a little slow to pick up on the coverage of actor Cory Monteith’s estate issues. The 31-year-old star of “Glee” passed away in the summer of 2013 from an overdose of cocaine and alcohol. He did not have a will, and that raised some unusual legal issues.

If you die without a will — “intestate” is the term — state law will dictate what happens to your property. If you have a spouse, your spouse will inherit. If no spouse, but children, your children will inherit. In Monteith’s case, no spouse and no children meant that his estate was to be divided equally between his parents.

It wasn’t quite that easy, though, because his parents had been separated or divorced for years. While each accused the other of being a bad parent, Monteith’s mother prevailed in court. His father signed documents that said he had not paid child support since Monteith was 9 and had not seen his son for years when he was growing up. By signing that document, his father gave up his claim to half of Monteith’s estate.

That got us to thinking about probate laws in general. Most states have adopted part or all of something called the Uniform Probate Code. Uniform laws are model laws developed by experts in the field based on best practices — or at least common practices. The idea is to reduce confusion and to increase efficiency by making the law similar if not identical from state to state. (There is an aspirational aspect to the process, too.)

Legislatures, however, like to put their own stamps on things. And California is no exception.

Lawmakers here chose not to adopt a section of the uniform law addressing whether a parent “functioned as a parent of the child.” That is, if the parent did nothing more than send a gift now and then, she was not truly a parent — and, as a result, she should not inherit from her intestate child.

The Legislature did, however, include other reasons a parent cannot be an intestate heir of his or her child. There is no inheritance, for example, if the parent has terminated his or her parental rights. Or, if a stepparent did not legally adopt the child.

There are others, and one is a doozy. We’ll get into that in our next post.

Sources:

Crain’s Wealth, “No one is promised tomorrow: Learning from Cory Monteith’s estate,” Andy and Danielle Mayoras, Jan. 29, 2015

California Probate Code § 6452 (West) via WestlawNext

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