Stanciu v. Williams

Opinion

LEVY, J. The decedent, Doralee Vema Beckel, died intestate. It is undisputed that, under the laws of intestate succession, the estate will pass to the decedent’s surviving first cousins and to the surviving issue of deceased first cousins. The question on appeal is at what generation, if any, do lineal descendents of a predeceased intestate heir lose their status as surviving issue entitled to a share of the estate?

In the petition for determination of persons entitled to distribution, respondent, Maureen Stanciu, the estate’s administrator, limited surviving issue to the children of the predeceased first cousins, i.e., first cousins once removed. Accordingly, if a predeceased first cousin’s children also predeceased the decedent but the first cousin’s grandchildren survived the decedent, respondent took the position that those grandchildren, i.e., the decedent’s first cousins twice removed, were not entitled to a share of the estate. Similarly, if the surviving issue were the predeceased first cousin’s great-grandchildren, i.e., first cousins thrice removed, they were excluded. The trial court agreed with respondent and thus limited the distribution of the estate to surviving first cousins and the children of predeceased first cousins.

[37]Appellant, Kathleen Williams, the assignee of the heirs of a more remote degree, i.e., decedent’s first cousins twice removed and thrice removed, challenges the trial court’s order on the ground that it is contrary to law. Appellant argues that, under the applicable statutes, the surviving issue of a predeceased heir entitled to inherit is not limited to the first generation.

As discussed below, appellant’s position is correct. Therefore, the order will be reversed and the case remanded for further proceedings.

DISCUSSION

This appeal involves a pure question of law. Thus, the trial court’s determination is reviewed de novo. (Estate of McCrary (1997) 54 Cal.App.4th 100, 102 [62 Cal.Rptr.2d 504] (McCrary).)

The distribution of the decedent’s estate is governed by Probate Code1 section 6402. Section 6402, subdivision (d), provides that where, as here, there is no surviving spouse, parent or issue of a parent, but the decedent is survived by issue of grandparents, the intestate estate passes to such issue, “the issue taking equally if they are all of 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.”