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In Re Estate of Beckel (Cal. Ct. App. - May 21, 2009)

By Shaun Martin

Here's a good question for the California Bar Exam. One which, I might add, the lower court got wrong. It's a Trusts & Estates question -- a class I never took (anywhere) -- but I nonetheless was able to intuit the answer. See if you can do the same. (Or at least learn the answer now.)

Decedent dies intestate in California. Decedent has no living parents, siblings, etc., but does have some living first cousins. So the first cousins definitely get a share (indeed, equal shares) of the estate.

What about the dead first cousins? Obviously they don't get any of the estate. But what about their issue? In particular, what about the living children of the deceased first cousins -- i.e., first cousins once removed? Do they get a share?

So say you have three living first cousins, and one dead first cousin who had two children who are still alive. Do your three first cousins each get one-third of the estate, or do they each get one-fourth, with the two living first cousins once removed children getting one-eighth each (i.e., collectively, the share of their parent)?

Let's make it even more complicated. What about living grandchildren -- or even great-grandchildren -- of a first cousin; e.g., first cousins twice- or thrice-removed? Do they get a share?

These questions underlie our ultimate hypothetical. Which is this:

Decedent dies. She had four first cousins, only one of whom (FC #1) survived Decedent. The second first cousin (FC #2) had two children, only one of whom survived Decedent. The third first cousin (FC #3) had three children, none of whom survived Decedent, but two of those children of FC #3 each had two children of their own (FC #3's grandchildren) who survived Decedent. Finally, to make things easy, FC #4 had no surviving children or grandchildren, but had one surviving great-grandchild.

What share (if any) does each of the survivors get? Do only the most closely-related family members (i.e., the surviving first cousins) get a share? Do only the surviving first cousins and surviving children of first cousins get a share, with the rest cut off? Does everyone alive get a share, regardless of how removed they are? Does the degree of removal affect the amount of the share; e.g., the thrice-removed people getting one-fourth of the share of the first-removed people?

Draw a chart. Who gets what in our hypothetical? You have ten minutes.

Okay, okay. I hear ya. You aren't in law school anymore. The Socratic method -- and exams in general -- are dead to you. You just want the answer. Here it is:

Each survivor shares equally the share of their respective first cousin heir, living or dead. So surviving FC #1 gets 25% of the estate, the surviving child of FC #2 gets 25% of the estate, the four surviving grandchildren of FC #3 each get 6.25% of the estate, and the surviving great-grandchild of FC #4 gets 25% of the estate.

The trial court, by the way, thought that only the FCs and children of FCs got to share. But Justice Levy says: "Wrong. I'll give you a B- for effort, but the correct answer is as described above."

Full post as published by California Appellate Report on May 21, 2009 (boomark / email).