Lapsed Residuary gifts..??

B

Badprobate

New Member
Jurisdiction
California
..when it says this in a Will under the residuary gift.."?

When a residuary gift fails,(the beneficiary died) & his then living children were to receive his 1/2 of the residuary if he failed to survive the testator. He dies shortly after the testator before all distributions were made of the estates. Who is entitled to what's left in the residuary now?
 
Is that exactly how the will is written & with the / there? If not, exactly what does it say? How is it exactly worded?

The then living children would mean all children of deceased living at deceased's death & to my brother's children (he should be named by name in the will) would mean all children of brother living or dead. (If any dead, their share would go to their estate).

If deceased meant to all living children of brother, it could have been worded a little better. It's hard to say if there are two different beneficiaries or one. Did deceased have children - if not, then "apparently" means to all living children of brother (whose full name should be in the will).

Since this is a residuary gift, the deceased may have already gifted to others & what is left goes to brother's children - not sure though & not sure if just those living.

You really need to talk to an attorney. Someone who can read the will completely.
 
I guess what I am trying to say (if this makes it more clear) is that I'm not sure if "the then living children" before the / and then after the / "to my brother's children" are two different "beneficiaries" or if the information before & after the / go together for one "beneficiary".

You're going to have to be more clear or your best bet is to verify/clarify the information in the will with an attorney if there seems to be a problem as to who gets what.
 
First we look to the appropriate statutes:

CA Codes (prob:21101-21118)


CA Codes (prob:21400-21406)


This might be relevant:

21401. Except as provided in Sections 21612 (omitted spouse) and
21623 (omitted children) and in Division 10 (commencing with Section
20100) (proration of taxes), shares of beneficiaries abate as
provided in this part for all purposes, including payment of the
debts, expenses, and charges specified in Section 11420, satisfaction
of gifts, and payment of expenses on specifically devised property
pursuant to Section 12002, and without any priority as between real
and personal property.



21402. (a) Shares of beneficiaries abate in the following order:
(1) Property not disposed of by the instrument.
(2) Residuary gifts.
(3) General gifts to persons other than the transferor's
relatives.
(4) General gifts to the transferor's relatives.
(5) Specific gifts to persons other than the transferor's
relatives.
(6) Specific gifts to the transferor's relatives.
(b) For purposes of this section, a "relative" of the transferor
is a person to whom property would pass from the transferor under
Section 6401 or 6402 (intestate succession) if the transferor died
intestate and there were no other person having priority.

However, we need to define "residuary gift":


In a will, the gift of whatever is left over after all specific and general gifts are given. For example, Susan gifts her house and her stocks to her pet rabbit, Mr. Wiggles; and leaves everything remaining to her friend, Roberta -- the gift of "everything else" is the residuary bequest.

So, what were the circumstances surrounding THIS "residuary gift"?

I'll need to know if any conditions were imposed upon the bequest.

How was the testator related to your father, who appears to be some sort of contingent beneficiary with antecedent conditions imposed?
 
Hi Army Judge, Thank you for your reply. I rarely use this site & almost didn't check back. I'm glad I did, Thank you... This one is a good one to say the very least... Out of anyone in my Aunts will that she wanted to see inherit by reading the will its my Dad & us & charity. I'm going to write every word here to you of how this is written in her will... If Mike Smith does not survive me, then his half of this gift shall be divided equally among his then living children, free of death taxes. I have a high regard for my half Brother Mike Smith. Desiring that a significant part of my estate pass to some of the people who are broadly members of my family and recognizing that Mike is elderly and may not survive me, I have in this will made a gift of a large part of my estate to the then living children of Mike Smith if he does not survive me.. As I have in recent years had little contact with most of the children of my dear half brother Mike, I have not made "any other" Specific gifts" to them, except Mikes daughter Lana Smith.

....*Note*... My Dad was the testators half Brother. My Dad had a ex unadopted Stepson that we know our Aunts was talking about when she says this,>> "little contact with most of the children of my dear half Brother Mike" .... We were not close to our Dad. Esp. me. He had issues with little girls. Lets just leave it at that. It was my choice growing up whether or not to be around my Dad. I chose not to. But out of anyone on my Dads side of the family I was closest to my Aunt( the testator).. My Aunt diswilled her other Brother & other half Sister. However, they ended up inheriting any way by will contest. My Sister and I are the children of Mike Smith. However, we didn't even get notice to the probate, nothing. My Dad and us were the only ones listed in the gift of the residuary. Yet the charities were made the other half of the residuary gift, not us. We are not even mentioned thru out the entire probate proceedings, ever-- We can prove our relationship with our Aunt by xmas cards over the years, bday gifts, letters, ect.. Nobody else can do this. What ended up happening is there were 2 public administrators that handled her case(at separate times).. both terminated too. For what? I can only imagine! ..>>Click here to read up on this guy(1st administrator)..>>> Misplaced Trust
... A nice little nest egg.... He and my Dads ex Stepson I told you about intentionally left us out of the entire probate. They knew if we knew that we'd of inherited it all. CORRUPT + CORRUPT = CORRUPT-- By the time we became aware it was many years later, many- We have been trying ever since to get legal help. Living in a different state besides where my Aunts probate was help didn't help matters much. I've contacted hundreds of attorney's seeking legal help with the majority of them wanting a $25,000.00 retainer fee. Or the rest of them just say flat out No, sorry can't help you. I have so many emails of turn downs from attorneys its crazy. Plus add in that the case started a long time ago. Which is not our fault- & they think nothing is left in the estate. It boiled down to this, I'm taking on a case Pro Se' I have no choice. I'm taking on a case that only a well seasoned attorney should be taking on. Yet I can't pay their fee. Noway can I afford this. Who can these days... My Dads ex Stepson is a really corrupt attorney here in WA. State. Combine him with the public admin. My Dads ex Stepson got it all-- It was a carefully thought out theft..(You would be amazed at who is all involved with this case!). I also can show how I think money from my Aunts estate was embezzeled out of her estate thru various CA. Courts. I found a case in theame court house as my Aunts with the same name as the ex Stepson & the same time of year with the same attorney. He is the main beneficiary of these estates- I found this at 2 other CA. courts besides the 1st court where his name, same attorney, same time of year, he's the main beneficiary in all.. Scribbled signatures on all. Same attorney signature. What are the odds of this happening ALL around the same times.?! So there it is in a nut shell even though there is so much more to it then just this. But I'm pretty sure you'll get the picture here. I have a hearing coming up on all this in July 2016.(Yikes!-)... I'm pretty scared but it won't scare me off- I do seek justice for my Aunts last wishes. 1 more thing I need to mention here... The signature on my Aunts will is not hers. Not even close-- Also my Dads Durable power of attorney is forged. Not my Dads signature. This is how he stole my Aunts estate. We filed a missing person report on our Dad in the county where he lived. Come to find out so did my Dads younger Brother Bill just prior to ours. For a total of 2 missing person reports filed in a 5 month stretch. ALL documents we requested to get from the public administrator were denied of my Aunts and my Dads. It hasn't been until recently that we have been able to obtain any records of my Dads or my Aunts. In my Aunts medical records it states she had severe dementia. However, this is not mentioned 1 time thru out the entire probate. Not once-- Same for my Dad.. in 1995 my Dad was in stage 7 alzheimers disease. Yet his death cert. reads he died late 2001. If you know anything about stage 7 alzheimers you know that just didn't happen--- He would of made history as the longest surviving stage 7 alz. patient- Like I've said, this was not fair & deserves to be heard. I Thank you so very much for answers. Youy have no idea how much this means to me. Thank you Thank you :) Badprobate
 
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I'm never surprised about how low some people go to steal, kill, cheat, or hurt others.

The lowest form of these rotten critters seem to abuse relatives.
My theory on that is most of us trust relatives far more than common sense says we should.
My wife says I'm too suspicious.
I tell her, true, I'm probably the most suspicious person on the planet.
I've lived many years, however, without being swindled, bamboozled, conned, duped, scammed, or cheated out of one single penny.
That, my friend, I attribute to my extraordinary suspicious, mind full of distrust in my fellow mankind. LOL :D

Okay, let me try to unravel this potential movie plot.
Oh yeah, it could be a given a great movie treatment.
You've got elderly relatives, lots of loot, diminished mental capacity, a crooked public official, disappearing people, disappearing loot, odd signatures, SORRY, I'm boring us.

The biggest problem is an old legal nemesis, res judicata, as in legally the matter has been decided; therefore under our laws it's dead.

As we know, Jesus is the only one that's ever mastered bringing the dead back to life.

Res judicata is probably why most attorneys refused to take your case.
Therefore, it's good you didn't cough up the $25K to the unscrupulous or greedy attorneys who would have taken your case, and YOU in one fell swoop.

The stepbrother had no standing to inherit a dime, unless he had been written into a will.

The "holographic will" your aunt purportedly authored is a mystery, unless you have a copy of it. For such a will to be accepted in CA we need to read the statutory law.

Here is that law:

CA Codes (prob:6110-6113)

Now we must determine the elements of such a will:

California law mandates a holographic will to be legal if its "material provisions" are in the testator's own handwriting and the will is signed by the testator [California Probate Code §§6110-6111].

This site identifies and explains the elements of a legal holographic will in CA:

Are Holographic Wills Legal in California?


This could be one of the loopholes used by the scalawags who bamboozled you:

A holographic will distributes the assets of the testator.

To be considered valid by a California probate court, the will must be legible.



Assets not distributed by the holographic will may be distributed according to state law. (Good old, reliable number three)



CA laws of intestate succession:

Your dad died unmarried:

A. If the decedent was not married, the estate is distributed as follows:

1. To the decedent's children, who take in equal shares if they are in the same generation.

2. If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents.

3. If there are no parents living, the estate is distributed to the "issue of the parents." If the decedent had brothers or sisters, they will inherit the estate. If there are deceased brothers and sisters, and they had issue, the issue will inherit the share of the estate that the deceased brother or sister would have inherited.

4. If there are no brothers or sisters, the decedent's grandparents will inherit the estate.

5. If there are no living grandparents, then the "issue of the grandparents" will inherit the estate. This could include the decedent's aunts and uncles, or if there aren't any aunts and uncles, the decedent's cousins. Generally, the oldest generation that has surviving issue will inherit, but if there are deceased issue in that generation, their issue will inherit their share.

6. If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to "next of kin in equal degree," generally meaning more distant cousins.

Nowhere does the CA law of intestate succession, as pertains to your father, do we see mention of STEPBROTHER, STEPSISTER, or STEPANYTHNG.

This could be of great assistance to you.

Before I "go there", how about you offering your thoughts on what has been discussed so far?

I'd also like you to discuss the desired outcome.

Let's keep it simple to stimulate the conversation.
For discussion purposes, we stipulate the estate was valued at $10,000.
Keeping it simpler, let's say that's all the testator conveyed.

Okay, your turn.
 
One more thing, for the purposes of ancestral inheritance, a half brother is treated on par with a brother.

In short, no need to use the adjective "half" to do what adjectives do, further define or explain the noun, BROTHER.

The law sees him, half brother, in the same light as a brother.

That means, according the the law of intestate succession in CA, he stands in readiness to potentially take that which remains by intestacy or ancestral right.
 
Good Afternoon, Boy oh boy you sure hit it on the head when you said this could be a movie! Before I can go any further here & trust me there's ALOT more to all this, can you please email me at protectyourprivacy1 I would like to show you what I mean... some things can't be shown online. Not yet anyway. This will be something that you will never ever ever forget. It's something so big that it's going to go world wide once I go to court in July. I dread this but I have no choice on the matter. My Dad was a Merchant Marine. He fought in world war 2. I didn't really know him like I told you. I know him better now by researching his past then I ever have. All I got to say about that is, "Amazing"! Please email me. You'll understand all this a bit better.
 
army judge said:
One more thing, for the purposes of ancestral inheritance, a half brother is treated on par with a brother.

In short, no need to use the adjective "half" to do what adjectives do, further define or explain the noun, BROTHER.

The law sees him, half brother, in the same light as a brother.

That means, according the the law of intestate succession in CA, he stands in readiness to potentially take that which remains by intestacy or ancestral right.
Click to expand...
 

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