Estate of John Chaves

Case Number

26PR00007

Case Type

Hearing Date / Time

Tue, 02/24/2026 - 09:00

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.

The following is noted for the Court at the hearing:

Heirs of Predeceased Spouse.  Petitioner admits via supplement that the Decedent had a predeceased spouse “who died in March 2021,” which is less than 2 years before the Decedent died in December of 2022.  

After Posted Notes indicating the necessity to list “heirs” of the predeceased spouse, Petitioner appears to be refusing to do so on the ignorant assumption that only issue of the predeceased spouse are considered within the definition of heirs.

According to Probate Code section 44: “Heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code.” The laws of intestacy of the state of California retained a weakened for of the ancestral property doctrine, which is codified at Probate Code section 6402.5.  According to that statute, when a Decedent dies without issue or surviving spouse, and was predeceased by a spouse by less than five years, “the portion of the decedent’s estate attributable to the decedent’s predeceased spouse” (Prob. Code, §6402.5(a & b), i.e. those entitled to take the Decedent’s intestate separate property estate are as follows:

(1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(2) If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse’s surviving parent or parents equally.

(3) If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(4) If the decedent is not survived by issue, parent, or issue of a parent of the predeceased spouse, to the next of kin of the decedent in the manner provided in Section 6402.

(5) If the portion of the decedent’s estate attributable to the decedent’s predeceased spouse would otherwise escheat to the state because there is no kin of the decedent to take under Section 6402, the portion of the decedent’s estate attributable to the predeceased spouse passes to the next of kin of the predeceased spouse who shall take in the same manner as the next of kin of the decedent take under Section 6402.

Thus, Petitioner MUST list any “heirs” of the predeceased spouse, which is broader than just issue.  The Petitioner must list heirs to the second degree of consanguinity, which includes the parents and issue of parents of the predeceased spouse.

Proof of Service of Notice of Hearing (Form DE-121).  Any heirs of the predeceased spouse must be served notice of the hearing and a copy of the petition.  Notice must be given 15 days prior to hearing, served on all known heirs and devisees, as well as on the Personal Representative (if not the petitioner) and special notice requestors.  (Prob. Code, §§ 8100 & 8110.) Notice must be sent to the person, not the person’s representative. (§1220.)

Waivers of Bond. Bond must be waived by all adult heirs of the predeceased spouse. Petitioner must file bond waivers (Form DE-142) for all heirs to the second degree of consanguinity.

It is recommended that the matter be continued to a date to be set by the Court at the hearing, unless the party appears and requests a different date, or submits a request for a different continuance date prior to the hearing. (Local Rule 1721(c)(2)(A-B).) If the matter is continued, documents must be submitted at least 10 days prior to the new hearing date to be considered.

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334