SECTIONS 21101-21118 - California Statutes

PROBATE CODE

SECTION 21101-21118

21101. Unless the provision or context otherwise requires, this
part applies to a will, trust, deed, and any other instrument.

21102. (a) The intention of the transferor as expressed in the
instrument controls the legal effect of the dispositions made in the
instrument.
(b) The rules of construction in this part apply where the
intention of the transferor is not indicated by the instrument.
(c) Nothing in this section limits the use of extrinsic evidence,
to the extent otherwise authorized by law, to determine the intention
of the transferor.

21103. The meaning and legal effect of a disposition in an
instrument is determined by the local law of a particular state
selected by the transferor in the instrument unless the application
of that law is contrary to the rights of the surviving spouse to
community and quasi-community property, to any other public policy of
this state applicable to the disposition, or, in the case of a will,
to Part 3 (commencing with Section 6500) of Division 6.

21104. As used in this part, "at-death transfer" means a transfer
that is revocable during the lifetime of the transferor, but does not
include a joint tenancy or joint account with right of survivorship.

21105. Except as otherwise provided in Sections 641 and 642, a will
passes all property the testator owns at death, including property
acquired after execution of the will.

21107. If an instrument directs the conversion of real property
into money at the transferor's death, the real property and its
proceeds shall be deemed personal property from the time of the
transferor's death.

21108. The law of this state does not include (a) the common law
rule of worthier title that a transferor cannot devise an interest to
his or her own heirs or (b) a presumption or rule of interpretation
that a transferor does not intend, by a transfer to his or her own
heirs or next of kin, to transfer an interest to them. The meaning of
a transfer of a legal or equitable interest to a transferor's own
heirs or next of kin, however designated, shall be determined by the
general rules applicable to the interpretation of instruments.

21109. (a) A transferee who fails to survive the transferor of an
at-death transfer or until any future time required by the instrument
does not take under the instrument.
(b) If it cannot be determined by clear and convincing evidence
that the transferee survived until a future time required by the
instrument, it is deemed that the transferee did not survive until
the required future time.

21110. (a) Subject to subdivision (b), if a transferee is dead when
the instrument is executed, or fails or is treated as failing to
survive the transferor or until a future time required by the
instrument, the issue of the deceased transferee take in the
transferee's place in the manner provided in Section 240. A
transferee under a class gift shall be a transferee for the purpose
of this subdivision unless the transferee's death occurred before the
execution of the instrument and that fact was known to the
transferor when the instrument was executed.
(b) The issue of a deceased transferee do not take in the
transferee's place if the instrument expresses a contrary intention
or a substitute disposition. A requirement that the initial
transferee survive the transferor or survive for a specified period
of time after the death of the transferor constitutes a contrary
intention. A requirement that the initial transferee survive until a
future time that is related to the probate of the transferor's will
or administration of the estate of the transferor constitutes a
contrary intention.
(c) As used in this section, "transferee" means a person who is
kindred of the transferor or kindred of a surviving, deceased, or
former spouse of the transferor.

21111. (a) Except as provided in subdivision (b) and subject to
Section 21110, if a transfer fails for any reason, the property is
transferred as follows:
(1) If the transferring instrument provides for an alternative
disposition in the event the transfer fails, the property is
transferred according to the terms of the instrument.
(2) If the transferring instrument does not provide for an
alternative disposition but does provide for the transfer of a
residue, the property becomes a part of the residue transferred under
the instrument.
(3) If the transferring instrument does not provide for an
alternative disposition and does not provide for the transfer of a
residue, or if the transfer is itself a residuary gift, the property
is transferred to the decedent's estate.
(b) Subject to Section 21110, if a residuary gift or a future
interest is transferred to two or more persons and the share of a
transferee fails for any reason, and no alternative disposition is
provided, the share passes to the other transferees in proportion to
their other interest in the residuary gift or the future interest.
(c) A transfer of "all my estate" or words of similar import is a
residuary gift for purposes of this section.
(d) If failure of a future interest results in an intestacy, the
property passes to the heirs of the transferor determined pursuant to
Section 21114.

21112. A condition in a transfer of a present or future interest
that refers to a person's death "with" or "without" issue, or to a
person's "having" or "leaving" issue or no issue, or a condition
based on words of similar import, is construed to refer to that
person's being dead at the time the transfer takes effect in
enjoyment and to that person either having or not having, as the case
may be, issue who are alive at the time of enjoyment.

21114. (a) If a statute or an instrument provides for transfer of a
present or future interest to, or creates a present or future
interest in, a designated person's "heirs," "heirs at law," "next of
kin," "relatives," or "family," or words of similar import, the
transfer is to the persons, including the state under Section 6800,
and in the shares that would succeed to the designated person's
intestate estate under the intestate succession law of the transferor'
s domicile, if the designated person died when the transfer is to
take effect in enjoyment. If the designated person's surviving spouse
is living but is remarried at the time the transfer is to take
effect in enjoyment, the surviving spouse is not an heir of the
designated person for purposes of this section.
(b) As used in this section, "designated person" includes the
transferor.

21115. (a) Except as provided in subdivision (b), halfbloods,
adopted persons, persons born out of wedlock, stepchildren, foster
children, and the issue of these persons when appropriate to the
class, are included in terms of class gift or relationship in
accordance with the rules for determining relationship and
inheritance rights for purposes of intestate succession.
(b) In construing a transfer by a transferor who is not the
natural parent, a person born to the natural parent shall not be
considered the child of that parent unless the person lived while a
minor as a regular member of the household of the natural parent or
of that parent's parent, brother, sister, spouse, or surviving
spouse. In construing a transfer by a transferor who is not the
adoptive parent, a person adopted by the adoptive parent shall not be
considered the child of that parent unless the person lived while a
minor (either before or after the adoption) as a regular member of
the household of the adopting parent or of that parent's parent,
brother, sister, or surviving spouse.
(c) Subdivisions (a) and (b) shall also apply in determining:
(1) Persons who would be kindred of the transferor or kindred of a
surviving, deceased, or former spouse of the transferor under
Section 21110.
(2) Persons to be included as issue of a deceased transferee under
Section 21110.
(3) Persons who would be the transferor's or other designated
person's heirs under Section 21114.
(d) The rules for determining intestate succession under this
section are those in effect at the time the transfer is to take
effect in enjoyment.

21117. At-death transfers are classified as follows:
(a) A specific gift is a transfer of specifically identifiable
property.
(b) A general gift is a transfer from the general assets of the
transferor that does not give specific property.
(c) A demonstrative gift is a general gift that specifies the fund
or property from which the transfer is primarily to be made.
(d) A general pecuniary gift is a pecuniary gift within the
meaning of Section 21118.
(e) An annuity is a general pecuniary gift that is payable
periodically.
(f) A residuary gift is a transfer of property that remains after
all specific and general gifts have been satisfied.

21118. (a) If an instrument authorizes a fiduciary to satisfy a
pecuniary gift wholly or partly by distribution of property other
than money, property selected for that purpose shall be valued at its
fair market value on the date of distribution, unless the instrument
expressly provides otherwise. If the instrument permits the
fiduciary to value the property selected for distribution as of a
date other than the date of distribution, then, unless the instrument
expressly provides otherwise, the property selected by the fiduciary
for that purpose shall fairly reflect net appreciation and
depreciation (occurring between the valuation date and the date of
distribution) in all of the assets from which the distribution could
have been made.
(b) As used in this section, "pecuniary gift" means a transfer of
property made in an instrument that either is expressly stated as a
fixed dollar amount or is a dollar amount determinable by the
provisions of the instrument.