Estate of McGuigan (2000)

Estate of JOHN JAMES McGUIGAN, Deceased.

JUDITH A. DESMOND, Petitioner and Respondent, v. KATHLEEN CONNELL, as State Controller, etc., Claimant; LINDA GEITNER, Movant and Appellant.

[Modification of Opinion (83 Cal.App.4th 639) on denial of petition for rehearing.]

THE COURT.-

It is ordered that the opinion filed herein on September 5, 2000, be modified in the following particulars:

1. At page 7, line 15th from the top, in the paragraph beginning with, "Section 1355 sets forth," delete the second sentence [83 Cal. App. 4th 645 , advance report, 2d par., lines 3-6 ], which begins, "The petition must include detailed information concerning all heirs," and substitute the following:

"The petition must include a detailed family history of the decedent, including the names, dates of birth, and addresses of all heirs, or a statement explaining "why the petitioner is unable to set forth any of the matters or things hereinbefore required."

2. At page 22, line second from the top, in the paragraph starting on page 21 which begins with, "In this case," and in the sentence beginning, "As the administrator," insert the following new footnote after the period at the sentence's closing words [83 Cal. App. 4th 653 , advance report, 1st par., line 4], "to the escheated estate."

"In a petition for rehearing, respondent contends, for the first time and without any citation to authority, that the appellant had no right to the escheated estate "since the closer heir, the son, was already dead." However, the son died only after the decedent died in 1990; thus, by virtue of Probate Code section 7000, "title to [the] decedent's property pass[ed] on the decedent's death . . . to the decedent's heirs as prescribed in the laws [84 Cal. App. 4th 31b] governing intestate succession." (Prob. Code, § 7000.) And such heirs are entitled to their share of the decedent's estate even if they die prior to distribution of the estate (Prob. Code, § 11801, subd. (a)), in which case "distribution [is] made to the personal representative of the estate of the beneficiary . . . ." (Prob. Code, § 11802, subd. (a).) In this case, the son did not die until after the decedent's estate escheated to the State, and thus, he had a right under section 1355 to file a claim for the escheated estate. The appellant, as the administrator of the son's estate "stands in the shoes of, and for the purposes of . . . litigation possesses the same but no greater rights, than the intestate." (Anderson v. Nelson (1927) 83 Cal. App. 1, 5 [256 P. 924].) Therefore, the appellant, as the administrator of the son's estate, was entitled to assert the son's claim to the decedent's estate pursuant to section 1355, to the same extent that the son could have. Respondent argues that the right to file a section 1355 petition "belongs only to an heir," not to the administrator, but the statutory language of section 1355 is to the contrary: It allows recovery "by the petitioner as heir, devisee, or legatee, or the successor in interest of an heir, devisee, or legatee." (§ 1355, at par. 2; emphasis added.) Accordingly, there is no merit to respondent's new arguments."

This addition will require renumbering of the footnotes.

This modification does not change the judgment.

Respondent's petition for rehearing is denied.

Callahan, J., and Kolkey, J., concurred.