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The KRASA LAW, Inc. Estate Planning Blog

Wednesday, May 21, 2014

The Answer Book

When I first started practicing law, one of my supervisors told me, “If you have a question, chances are the answer is in the Probate Code.”  The California Probate Code is the section of law that controls almost all aspects of estate planning, from the creation and interpretation of trusts to the default inheritance rules when someone dies without an estate plan.  California’s Probate Code has long been held in high esteem for its precise detail and its ability to address almost any issue that might arise in the context of estate planning.  Many other states have used the California Probate Code as a model for the creation and revision of their own Probate Codes. 

Below are some sample provisions that illustrate its comprehensive nature.

1.  Rules of Language Construction and Definitions

As someone who holds a degree in English Literature, I appreciate grammar and vocabulary.  A large section of the California Probate Code is dedicated to providing special grammar rules and definitions of specific terms.

Section 9 of the Probate Code entitled, “Verb Tense Meaning,” states: “The present tense includes the past and future tenses, and the future, the present.”  I never knew it was possible to completely re-write grammar rules!  This is pretty bold for the authors of his section to take this position.  I wonder how an English teacher would react if a student who had weak grammar skills used this disclaimer at the top of an essay.

Section 10 of the Probate Code is even bolder: “The singular number includes the plural, and the plural, the singular.”  Not only do I question the comma placement of this section, but this completely unravels everything I learned in elementary school.

Section 12 of the Probate Code brings us back to reality: ‘“Shall’ is mandatory and ‘may’ is permissive.”  I shall accept that rule of construction. 

Section 45 provides a definition for the word, “instrument”: “a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer of property.”  Sorry polka fans, accordions are not included in this definition.   

Section 56 states that the word, “person,” includes “an individual, corporation, government or governmental subdivision, or other agency, business trust, estate, trust, partnership, limited liability company, association, or other entity.”  Should this section be re-written to the more succinct, “Corporations are people, my friend”?  

Section 59 defines a “predeceased spouse” as “a person who died before the decedent while married to the decedent.”  I often use the term “predeceased” when discussing estate planning.  For example, I might say, “Have you thought about what should happen if Kelly is predeceased?”  One time a client who is a doctor asked me, “Aren’t we all predeceased?”  He had a point.

Section 74 defines “state” as “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.”  Contrary to what you learned in school, Washington, D.C. and Puerto Rico are states!    

2.  Rules to Avoid Mischief

The California Probate Code includes many rules intended to protect against would be mischief.  For example, Section 250 states: “A person who feloniously and intentionally kills the decedent is not entitled [to inherit from that person].”  This is often referred to as the “anti-slayer’s rule: you don’t get to inherit from the person you murder.  This makes sense, though most people who plot to murder someone for the purpose of receiving an inheritance don’t think they will get caught!

Not to compare murderers with lawyers, but Section 21380 prohibits the attorney who drafted an estate plan from inheriting from that estate plan unless certain conditions are met.  The genesis of this rule stemmed from a Los Angeles Times report about an estate planning attorney who was named as a beneficiary in most of his clients’ estate plans!  Either he was very well-loved or he was very sneaky.  In any case, the Probate Code now attempts to guard against cases that involve sneakiness on the part of the drafting attorney.

3.  Rules that Keep Up with Science

In my last article, I wrote about the estate planning impact of cryonics which demonstrated how laws must adapt to scientific changes.  Sections 249.5 through 249.8 address “posthumously conceived children.”  The fact that modern science allows children to be conceived after the parent’s death creates scores of new estate planning questions and issues and the California Probate Code is on top of these developments!

The California Probate Code is indeed a comprehensive text and, as many of the above examples illustrate, estate planning can create so many complex issues that a detailed “guidebook” is necessary.  

KRASA LAW  is located at 704-D Forest Avenue, PG, and Kyle may be reached at 831-920-0205.

Disclaimer: This article is for general information only.  Reading this article does not create an attorney/client relationship.  Before acting on any of the information provided in this article, you should consult with a qualified attorney licensed to practice law in your community.             


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KRASA LAW assists clients with Estate Planning, Elder Law, Pet Trusts, Asset Protection, Special Needs Planning and Probate / Estate Administration in Pacific Grove, CA(93950), Monterey (93944, 93940, 93943, 93942), Salinas (93901, 93905, 93906, 93907), Hollister (95023,95023) Pebble Beach (93953), Carmel By The Sea (93921), Seaside (93955) and Carmel (93923, 93922) in Monterey County and San Benito California.

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