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By: Scott Grossman on March 7th, 2018

What is Right of Representation under California Probate?

Right of Representation in California:

If a person who passed away left a will to someone no longer alive, what happens to the property? Under California probate law, there is a concept of “right of representation” (also called “per stirpes”). This means the descendants of the beneficiary who passed away have the right to collect the property originally intended to go to the loved one who passed away. This is where they become beneficiaries in place of the loved one who was to inherit but passed away.

The application of this concept is more complicated than would seem at first sight. Therefore, it is recommended that you consult with an experienced and trusted probate attorney if you are in such a situation.

The reason being that there are two legal meanings to the “right of representation.”

You must determine the formula that applies to the estate you are concerned with:

  • Formula 1: You must first identify the closest generation of issues that has living members. This means the children and if there are no living children, the grandchildren’s generation, and so forth. The property is divided into as many shares as there are living members. And issue of deceased members of that generation. Each living member of the generation gets a share, and the issue of a deceased member takes their ancestor’s share.
  • Formula 2:Does the will expressly direct that the inheritance should be conducted by right of representation? If so, a different system should be used. Under formula 2, a generation that has no living members is not ignored, like in the previous formula. This means that the estate is always first divided into the children’s generation, even if none of them are alive. Once it is divided at the children’s generation, it should be divided among the grandchildren, living or not, and so forth.

Find out More About Types of Distributions and Right of Representation:

Furthermore, probate law in California covers just about every possible case. But it takes practice and knowledge to correctly translate the law’s wording into the right practical steps, just like it takes experience to find the probate code statutes that apply to your case.

If you are ready to start your case, then please give us a call or fill out our Get Help Now form.  If you want a comprehensive overview of California Probate, then click here. Should you have additional questions about trust litigation, then you will find plenty of useful information in our Learning Center.