Estate of Franklin E Kiser

Case Number

23PR00144

Case Type

Hearing Date / Time

Wed, 05/08/2024 - 08:30

Nature of Proceedings

Petition for Final Distribution

Tentative Ruling

Probate Notes:

Appearances required. 

The following is noted for the Court at the hearing:

Proposed Distribution Differs From Law of Intestacy.  The proposed distribution does not comply with the intestate distribution scheme in the Probate Code for separate property. 

The supplement filed on May 3, 2024, adequately alleges facts showing that all property in the estate is separate property.  Because Decedent died intestate, the estate must be distributed 1/3 to the surviving spouse, and 2/3 to the children to share equally. (Prob. Code, § 6401(c)(3)(A-C).) 

Contrary to this distribution scheme, the proposed distribution in the Petition requests this court to distribute the Decedent’s 50% share of the estate real property to the surviving spouse (none to the children), and the remaining cash 1/3 to Decedent’s spouse and two children each.

According to declarations filed by the children, the Decedent allegedly intended to transmute his separate property to community property before his death, and leave at least the real property to the surviving spouse.  As a result, the children are assigning their interest to the subject property to their mother, the surviving spouse.

While honorable, and understandable under the circumstances, this Court can only order distribution according to the intent of the testator expressed in a validly executed will (Prob. Code, §§7000, 11605) or according to the law of intestacy (Prob. Code, §6400).  Any assignment must meet the requirements of Probate Code section 11604.  Therefore, the proposed distribution that departs from the law of intestacy in this case, can only be ordered by this Court if the assignments made by the Decedent’s children to the surviving spouse are not “grossly unreasonable.”

In this case, the assignment does not appear to be reasonable, because there is no valuation placed on the alleged unpaid rent that would be due to the estate by the assignees. If Petitioner provides sufficient evidence at the hearing that the share of the real property being assigned to the surviving spouse is within a reasonable margin of the unpaid rent, the court should accept the assignments.