State Codes and Statutes

State Codes and Statutes

Statutes > California > Prob > 248-249.8

PROBATE CODE
SECTION 248-249.8



248.  When title to real or personal property, or any interest
therein, vests, other than by laws of succession, on the heirs, heirs
of the body, issue, or children of any person, without other
description, or means of identification of the persons embraced in
the description, any person interested in the property as the heir,
heir of the body, issue, or child, or his or her successor in
interest, or the personal representative of any interested person or
of his or her successor in interest, may file a verified petition in
the superior court of the county in which the property or any part
thereof is situated, setting forth briefly the deraignment of title
of petitioner, a description of the property affected, and so far as
known to the petitioner, the names, ages, and residences of the
heirs, heirs of the body, issue or children whose identity is sought
to be determined, and if any is dead or if the residence of any is
unknown, stating the facts, and requesting that a decree be entered
determining and establishing the identity of the persons embraced in
the general description.



248.5.  The clerk shall set the petition for hearing by the court
and give notice thereof in the manner provided in Sections 1230 and
1260. The petitioner shall cause notice of the hearing to be given in
the manner specified in Sections 1220 and 1260.



249.  At any time before the hearing any person interested in the
property may answer the petition and deny any of the matters
contained therein. The court shall hear the proofs offered by the
petitioner and by any person contesting and shall make a decree
conformable to the proofs. The decree shall be prima facie evidence
of the facts determined thereby, and shall be conclusive in favor of
anyone acting thereon in good faith without notice of any conflicting
interest.


249.5.  For purposes of determining rights to property to be
distributed upon the death of a decedent, a child of the decedent
conceived and born after the death of the decedent shall be deemed to
have been born in the lifetime of the decedent, and after the
execution of all of the decedent's testamentary instruments, if the
child or his or her representative proves by clear and convincing
evidence that all of the following conditions are satisfied:
   (a) The decedent, in writing, specifies that his or her genetic
material shall be used for the posthumous conception of a child of
the decedent, subject to the following:
   (1) The specification shall be signed by the decedent and dated.
   (2) The specification may be revoked or amended only by a writing,
signed by the decedent and dated.
   (3) A person is designated by the decedent to control the use of
the genetic material.
   (b) The person designated by the decedent to control the use of
the genetic material has given written notice by certified mail,
return receipt requested, that the decedent's genetic material was
available for the purpose of posthumous conception. The notice shall
have been given to a person who has the power to control the
distribution of either the decedent's property or death benefits
payable by reason of the decedent's death, within four months of the
date of issuance of a certificate of the decedent's death or entry of
a judgment determining the fact of the decedent's death, whichever
event occurs first.
   (c) The child was in utero using the decedent's genetic material
and was in utero within two years of the date of issuance of a
certificate of the decedent's death or entry of a judgment
determining the fact of the decedent's death, whichever event occurs
first. This subdivision does not apply to a child who shares all of
his or her nuclear genes with the person donating the implanted
nucleus as a result of the application of somatic nuclear transfer
technology commonly known as human cloning.



249.6.  (a) Upon timely receipt of the notice required by Section
249.5 or actual knowledge by a person who has the power to control
the distribution of either the decedent's property or death benefits
payable by reason of the decedent's death, that person may not make a
distribution of property or pay death benefits payable by reason of
the decedent's death before two years following the date of issuance
of a certificate of the decedent's death or entry of a judgment
determining the fact of decedent's death, whichever event occurs
first.
   (b) Subdivision (a) does not apply to, and the distribution of
property or the payment of benefits may proceed in a timely manner as
provided by law with respect to, any property if the birth of a
child or children of the decedent conceived after the death of the
decedent will not have an effect on any of the following:
   (1) The proposed distribution of the decedent's property.
   (2) The payment of death benefits payable by reason of the
decedent's death.
   (3) The determination of rights to property to be distributed upon
the death of the decedent.
   (4) The right of any person to claim a probate homestead or
probate family allowance.
   (c) Subdivision (a) does not apply to, and the distribution of
property or the payment of benefits may proceed in a timely manner as
provided by law with respect to, any property if the person named in
subdivision (a) of Section 249.5 sends written notice by certified
mail, return receipt requested, that the person does not intend to
use the genetic material for the posthumous conception of a child of
a decedent. This notice shall be signed by the person named in
paragraph (3) of subdivision (a) of Section 249.5 and at least one
competent witness, and dated.
   (d) A person who has the power to control the distribution of
either the decedent's property or death benefits payable by reason of
the decedent's death, shall incur no liability for making a
distribution of property or paying death benefits if that person made
a distribution of property or paid death benefits prior to receiving
notice or acquiring actual knowledge of the existence of genetic
material available for posthumous conception purposes or the written
notice required by subdivision (b) of Section 249.5.
   (e) Each person to whom payment, delivery, or transfer of the
decedent's property is made is personally liable to a person who,
pursuant to Section 249.5, has a superior right to the payment,
delivery, or transfer of the decedent's property. The aggregate of
the personal liability of a person shall not exceed the fair market
value, valued as of the time of the transfer, of the property paid,
delivered, or transferred to the person under this section, less the
amount of any liens and encumbrances on that property at that time.
   (f) In addition to any other liability a person may have pursuant
to this section, any person who fraudulently secures the payment,
delivery, or transfer of the decedent's property pursuant to this
section shall be liable to the person having a superior right for
three times the fair market value of the property.
   (g) An action to impose liability under this section shall be
barred three years after the distribution to the holder of the
decedent's property, or three years after the discovery of fraud,
whichever is later. The three-year period specified in this
subdivision may not be tolled for any reason.


249.7.  If the written notice required pursuant to Section 249.5 is
not given in a timely manner to any person who has the power to
control the distribution of either the decedent's property or death
benefits payable by reason of the decedent's death, that person may
make the distribution in the manner provided by law as if any child
of the decedent conceived after the death of the decedent had
predeceased the decedent without heirs. Any child of a decedent
conceived after the death of the decedent, or that child's
representative, shall be barred from making a claim against either
the person making the distribution or the recipient of the
distribution when the claim is based on wrongful distribution and
written notice has not been given in a timely manner pursuant to
Section 249.5 to the person making that distribution.



249.8.  Notwithstanding Section 249.6, any interested person may
file a petition in the manner prescribed in Section 248 or 17200
requesting a distribution of property of the decedent or death
benefits payable by reason of decedent's death that are subject to
the delayed distribution provisions of Section 249.6. The court may
order distribution of all, or a portion of, the property or death
benefits, if at the hearing it appears that distribution can be made
without any loss to any interested person, including any loss, either
actual or contingent, to a decedent's child who is conceived after
the death of the decedent. The order for distribution shall be stayed
until any bond required by the court is filed.