Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. PES-07-290181
Pollak, Acting P. J.
Plaintiff Margie Holyfield appeals from the denial of her petition claiming an escheated estate on behalf of three minor children. She contends the court erred in finding that the children are not entitled to the estate under Code of Civil Procedure section 1355. We affirm.
Factual and Procedural Background
Decedent Alice Wilson died testate on November 20, 1999. Alice’s will provided that her entire estate, which was valued at $268,090.28, was to be distributed to her husband, Alfounzo Wilson. Alfounzo, however, had died in 1985, predeceasing Alice by almost 14 years.
The public administrator determined that both Alfounzo and Alice had no known heirs who would be entitled to the estate. Accordingly, the estate was distributed to the State of California.
On June 29, 2007, Holyfield filed a petition claiming the escheated estate on behalf of three minor children alleged to be cousins of Alfounzo. The court denied Holyfield’s petition and she has filed a timely notice of appeal.
Respondent’s request for judicial notice of court minutes in a separate proceeding involving different claimants to Alice Wilson’s estate is denied on the ground of relevancy.
Discussion
Under the Probate Code, property that is not distributed to known beneficiaries shall be distributed to the state. (Prob. Code, § 11900.) “Property distributed to the state shall be held by the Treasurer for a period of five years from the date of the order for distribution, within which time any person may claim the property in the manner provided by Title 10 (commencing with Section 1300) of Part 3 of the Code of Civil Procedure.” (Prob. Code, § 11903, subd. (a).)
Code of Civil Procedure section 1355 authorizes a party claiming escheated property to file a petition in the superior court “showing his claim or right to the money or other property, or the proceeds thereof. [¶] . . . [¶] The court must thereupon try the issue as issues are tried in civil actions; and if it is determined that such person is entitled to the money or other property or the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds thereof paid into the State Treasury, it must order the Controller to draw his warrant on the Treasurer for the payment of the same . . . .”
The parties do not dispute that Holyfield’s petition meets the procedural requirements of Code of Civil Procedure section 1355. They disagree, however, as to whether Holyfield has established that the minors are entitled to the estate. “The right of inheritance, including the designation of the heirs and the proportions which the several heirs shall receive, as well as the right of testamentary disposition, are entirely matters of statutory enactment, and within the control of the legislature.” (In re Estate of Wilmerding (1897) 117 Cal. 281, 284.) Because Alice’s will was invalid, her estate was subject to the distribution laws for intestate succession. (Prob. Code, § 6400 [“Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs” under the laws governing intestate succession].)
Probate Code section 6402.5 provides the circumstances under which the portion of the decedent’s estate attributable to a decedent’s predeceased spouse may be distributed to certain relatives of the predeceased spouse. Subdivision (b) of section 6402.5 provides for the distribution of personal property to the heirs of a predeceased spouse if the predeceased spouse “died not more than five years before the decedent.” Subdivision (a) of section 6402.5 provides for the distribution of real property to the heirs of a predeceased spouse if the predeceased spouse “died not more than 15 years before the decedent.” According to Holyfield’s petition, Alice’s estate at the time of her death consisted of a mobile home and more than $200,000 in cash. As personal property, her estate was subject to the five-year rule found in section 6402.5, subdivision (b). Because Alfonzo died 14 years before Alice, his heirs are not legally entitled to any portion of her estate under this section.
If Probate Code section 6402.5 is not applicable, distribution to the heirs of a predeceased spouse is governed by section 6402. Subdivision (g) of section 6402 provides, “If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, 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.” Subdivision (g) does not provide for distribution to issue of the grandparents of a predeceased spouse, which the minors in this case claim to be. If there is no taker of the intestate estate under section 6402, the estate escheats to the state. (Prob. Code, § 6404.) Because the minors are not entitled to the estate under the intestate distribution provisions of the Probate Code, the court properly denied Holyfield’s petition.
Holyfield’s reliance on Mannheim v. Superior Court (1970) 3 Cal.3d 678 (Mannheim) for a contrary result is misplaced. Mannheim does not provide an independent basis on which to release the escheated funds to the minors. That case held that under Probate Code former section 288 the next of kin of a predeceased spouse were entitled to inherit the decedent’s entire estate when the decedent had no known heirs. Section 228 was repealed in 1980 (Stats. 1980, ch. 136, § 1, p. 320) and section 296.5 was repealed effective 1985 (Stats. 1983, ch. 842, § 20, p. 3204). As set forth above, the Probate Code no longer includes a catch-all provision for distribution to the next of kin of a predeceased spouse. Hence, Mannheim is not applicable in the present instance.
In 1969, former section 228 of the Probate Code provided in pertinent part: “ ‘If any of the property subject to the provisions of this section would otherwise escheat to this state because there is no relative, including next of kin of the decedent or of his predeceased spouse, such property shall be distributed in accordance with the provisions of paragraph 2 of section 296.4 of this code.’ ” (Mannheim, supra, 3 Cal.3d at p. 684.) Paragraph 2 of former section 296.4 provided: “If a portion of the estate which was the community property of the husband and wife should otherwise escheat to the state under this section and Sections 201, 228 and 231 because there is no relative, including next of kin, of one of the spouses to succeed to such portion of the estate, such portion . . . shall be distributed in equal shares to the children of the other spouse and to their descendants by right of representation, or if such spouse leaves no children, nor descendants of a deceased child, in equal shares to the parents of such other spouse . . . or if both are dead, in equal shares to the brothers and sisters of such other spouse and to their descendants by right of representation, or if such other spouse leaves neither parent, brother, sister, nor descendant of a predeceased brother or sister, such portion of the estate goes to the next of kin of such other spouse . . . .” (Stats. 1968, ch. 1407, § 1, p. 2768; Mannheim, supra, at pp. 684-685.) As the Mannheim court explained, “The effect of [section 296.4] is to prevent the escheat of any community property of a husband and wife who die simultaneously if either leave any heirs. By incorporating that distribution scheme into section 228, the Legislature provided the same treatment for community property of spouses who die at different times.” (Mannheim, supra, at p. 685.)
Holyfield’s reliance on provisions governing claims for escheated property in “small estates” is similarly misplaced. Probate Code section 7663, subdivision (b) authorizes the public administrator of a small estate, currently defined as those worth less than $100,000 (Prob. Code, § 13100), to escheat the net estate to the county treasurer. Under Government Code section 50052.5, subdivision (b) the treasurer is authorized to “release unclaimed money deposited with the county treasurer pursuant to Section 7663 of the Probate Code, to any adult blood relative of either the decedent or the decedent’s predeceased spouse.” “[T]he claimant, to be entitled to the entire escheated estate, needs only to establish with documentary proof the existence of a blood relationship to either the decedent or of the predeceased spouse, if any, and the documentary proof, if regular on its face, need not be certified.” (Gov. Code, § 50052.5, subd. (d).) However anomalous the different treatment of escheated estates based on their size may be, because of the size of Alice’s estate these provisions are not applicable.
Disposition
The order denying Holyfield’s petition is affirmed.
We concur: Siggins, J., Jenkins, J.