California Determination of Heirship Law

By Erika Johansen
Heirship is determined by the court upon petition of potential heirs.

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When an owner has died intestate (leaving no will or other disposition of his property), California allows a potential heir to present evidence of his heirship, upon which a court may make a determination of heirship which establishes the heir's claim to the property.

Affidavit of Heirship

When a deceased individual dies, leaving property and no will or other disposition of that property, the property may be inherited by a valid heir. California Family Code (CFC) Section 248 allows those with a possible interest in the property via California inheritance rules to file an affidavit of heirship, establishing their rights to the property. The affidavit will contain evidence of status as an heir, and should be notarized. The affidavit must be filed in the court of the county where the property is located, and contain some legal description of the property, and the respective name, age and residence of each person asserting his status as an heir.

Heirship Determination

When submitting the affidavit of heirship, the petitioner requests the court to make a decree, commonly known as a determination of heirship, establishing the petitioner's identity as an heir with a valid claim to the property at issue. The determination of heirship is then generally used to show ownership (for instance, in cases of real property, as proof for the county recorder). CFC Section 249 generally allows anyone with an interest in the property to petition or contest the affidavit of heirship at any time.

Hearing

After submission of the affidavit of heirship, CFC Section 248.5 also allows the court clerk to set the petition for a hearing. The responsibility falls on the petitioner (the party in interest submitting the affidavit) to provide adequate notice to all interested parties. The statute establishes a general requirement that notice be provided at least 15 days in advance of the hearing, and mailed to anyone who requests it at their home or place of business. CFC Section 1260 also requires the petitioner to prove to the court that he provided adequate notice. However, under CFC Section 1220, the court also has the discretion to dispense with the notice requirement entirely, for good cause.

Descendant Heirs

Determination of proper heirship in California is based on the system of per capita with representation. Under this system, as outlined in CFC Sections 240 to 246, the law seeks heirs first among the descendants of the deceased. Should any children have survived the deceased, the law will divide the remaining intestate property evenly into as many shares as there are living children, and deceased children with living descendants. If no children survived the deceased, but there are descendants of those children living, the law will divide the property evenly at the first generation of descendants living (usually grandchildren of the deceased). Note that under the California statute, "children" also includes children born after the death of the deceased and even children conceived after the death of the deceased using his genetic material, if the deceased gave his written and signed consent to such use before death.

Ancestral/Collateral Heirs

Should the deceased have no descendants still living, the California law of inheritance will seek heirs among the deceased's ancestors and their descendants. Heirs are appointed in order of degree of relationship: first the deceased's parents, then issue of either both or one of the parents, then grandparents and their issue and then the deceased's stepchildren. Eventually, if no heir can be found in the entire line of succession, the property will escheat, that is, be forfeit to the state. However, escheat is very rare under Cailfornia law.

About the Author

Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

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