Immediate Arrangements - California Law Revision Commission

214 Pages·2002·7.68 MB·English

STATE OF CALIFORNIA
CALIFORNIA LAW
REVISION COMMISSION
TENTATIVE RECOMMENDATION
relating to
Wills and Intestate Succession
November 1982
CALIFORNIA LAw REVISION COMMISSION
4000 Middlefield Road, Suite D-2
Palo Alto, California 94306
THE CALIFORNIA LAW REVISION COMMISSION
COMMISSION MEMBERS
ROBERT J. BERTON JAMES H. DAVIS
Chairperson Member
BEATRICE P. LAWSON JOHN B. EMERSON
Vice Chairperson Member
OMER L. RAINS DEBRA S. FRANK
Member of Senate Member
ALISTER McALISTER BION M. GREGORY
Member of Assembly Member
ROSLYN P. CHASAN DAVID ROSENBERG
Member Member
COMMISSION STAFF
legal
JOHN H. DEMOULLY ROBERT J. MURPHY III
Executive Secretary Staff Counsel
NATHANIEL STERLING STAN G. ULRICH
Assistant Executive Secretary Staff Counsel
Administrative-Secretarial
JUAN C. ROGERS
Administrative Assistant
VICTORIA V. MATIAS LETA M. SKAUG
Word Processing Technician Word Processing Technician
NOTE
The Commission's annual reports and its
recommendations and studies are published in separate
pamphlets which are later bound in permanent volumes.
The page numbers in each pamphlet are the same as in the
volume in which the pamphlet is bound. The purpose of this
numbering system is to facilitate consecutive pagination of
the bound volumes. This pamphlet will appear in Volume
16 of the Commission's Reports, Recommendations, and
Studies which is scheduled to be published late in 1983.
Cite this pamphlet as Tentative Recommendation Relating
to Wills and Intestate Succession, 16 Cal. L. Revision
Comm'n Reports 230l (1982).
STATE OF CALIFORNIA
CALIFORNIA LAW
REVISION COMMISSION
TENTATIVE RECOMMENDATION
relating to
Wills and Intestate Succession
November 1982
CALIFORNIA LAw REVISION COMMISSION
4000 Middlefield Road, Suite D-2
Palo Alto, California 94306

CONTENTS
Page
Letter of Transmittal...................... ......... .......... ................ ........... 2305
Acknowledgments ...................................................................... 2307
Summary of Report ...................................................................... 2311
Recommendation .......................................................................... 2317
(A detailed outline of the recommendation begins on page 2317)
Proposed Statute Relating to Wills and Intestate Succession 2353
(A detailed outline of the proposed legislation begins on page 2353)
Conforming Amendments, Additions, and Repeals .............. 2483
Disposition of Existing Sections of Divisions
1, 2, and 2b of The Probate Code .................................... 2499
Uniform Probate Code Sections to Proposed Law .............. 2511
(2303)

STATE Of CAUfOINIA EDMUND G. BlOWN JR., ~
CALIFORNIA LAW REVISION COMMISSION
4000 MidcIofioId R. .... Suite 1).2
Palo Alto, CA 9406
(415) ..,4-1335
ROIERT J. IRTON
~
BEATRICE P. LAWSON
Ib~,
SENATOI OMO ~ RAINS
ASSEMILYMAN AUSTER McAlJSTER
ROSlYN P. CHASAN
JAMES H. DAVlS
JOHN I. EMERSON
DBlAS._
lION M. GIfGOIY
DAYlD ROSENIERG
November 8, 1982
To: THE HONORABLE EDMUND G. BROWN JR.
Governor of California and
THE LEGISLATURE OF CALIFORNIA
This tentative recommendation proposes the enactment of a
new comprehensive statute governing wills and intestate
succession. The new statute will replace the comparable portion
of the California Probate Code. Conforming revisions in other
statutory provisions are also proposed.
The new statute is drawn in part from the Uniform Probate
Code. It makes some significant changes in existing California
law. These changes are designed primarily to simplify the
administration of an intestate estate and to carry out more
effectively the intent of the decedent who dies leaving a will. In
some instances, the new statute adopts a Uniform Probate Code
rule because national uniformity in that area of the law is
particularly desirable and the Uniform Probate Code offers a
~ound rule that would help achieve national uniformity.
This tentative recommendation is submitted pursuant to
Resolution Chapter 37 of the Statutes of 1980. That chapter
directs the Commission to study U[ w]hether the California
Probate Code should be revised, including but not limited to
whether California should adopt, in whole or in part, the Uniform
Probate Code."
Respectfully submitted,
J.
ROBERT BE~iTON
Chairperson
(2305)

ACKNOWLEDGMENTS
In preparing the proposed law, the Commission
consulted with the Executive Committee of the Estate
Planning, Trust and Probate Law Section of the State Bar
of California. Members of that committee reviewed
materials prepared by the Commission's legal staff and
preliminary drafts of the proposed law. James D. Devine,
Monterey, and William H. Plageman, Jr., San Francisco,
regularly attended Commission meetings as
representatives of the committee. The Commission has
benefited from the comments and the practical experience
and expertise of these and other committee members.
However, there should be no implication that the State Bar
either approves or disapproves of the proposed law.
Nine law professors served as expert consultants on this
project. Each is an expert in one or more of the following:
probate law, community property law, real and personal
property law, tax law. The consultants attended
Commission meetings and assisted the Commission in
preparing the proposed law. They are listed below.
Paul E. Basye Susan F. French
Hastings College of the Law U.C. Davis Law School
Gail Boreman Bird Russell D. Niles
Hastings College of the Law Hastings College of the Law
James L. Blawie William A. Ileppy, Jr.
Univ. of Santa Clara School Duke University School
of Law of Law
Carol S. Bruch Bruce Wolk
U.c. Davis Law School U.C. Davis Law School
Jesse Dukeminier
U.C.L.A. Law School
While the contribution of the State Bar Section, the
consultants listed above, and others who assisted in this
project is gratefully acknowledged, the members of the
Commission necessarily must assume the sole responsibility
for the content of the proposed law.
(2307)
2308 ACKNOWLEDGMENTS
The proposed law is primarily drawn from the Uniform
Probate Code supplemented by provisions drawn from
existing California law. However, a provision of the
proposed law drawn from the Uniform Probate Code may
be substantially different from the comparable provision of
the Uniform Probate Code. This publication includes a
table that shows the comparable provisions in the proposed
law for portions of the Uniform Probate Code. See
"Uniform Probate Code Sections to Proposed Law," found
at the end of this publication.
In preparing the proposed law, the Commission also
drew on the wealth of published material relating to the
Uniform Probate Code and the existing California law. The
following were particularly useful:
(1) Niles, Probate Reform in Califorma, 31 Hastings L.J.
185 (1979).
(2) French & Fletcher, A Comparison of the Uniform
Probate Code and California Law With Respect to the Law
of Wills, in Comparative Probate Law Studies 331 (1976).
(3) Turrentine, Introduction to the California Probate
Code, in West's Annotated California Codes, Probate Code
1 (1956).
(4) Evans, Comments on the Probate Code ofC alifornia,
19 Calif. L. Rev. 602 (1931) (Professor Evans was the
draftsman of the 1931 Probate Code).
An analysis of the Uniform Probate Code by the State Bar
of California and a response by the Joint Editorial Bdard for
the Uniform Probate Code provided an insight as to
significant policy issues involved in preparing the proposed
law. See State Bar of California, The Uniform Probate Code:
Analysis and Critique (1973); Joint Editorial Board for the
Uniform Probate Code, Response of the Joint Editorial
Board (1974).
The Commission also considered published empirical
information in its effort to formulate recommendations
consistent with modern conditions and desires. See, e.g.,
Fellows, Simon & Rau, Public Attitudes About Property
Distribution at Death and Intestate Succession Laws in the
United States, 1978 Am. Bar Foundation Research J. 321
(article reporting the results of a study conducted using a
scientifically-designed telephone survey of 750 families in