(a) If a person dies intestate as to all or part of his or her estate, property the decedent gave during lifetime to an heir is treated as an advancement against that heir’s share of the intestate estate only if one of the following conditions is satisfied:

(1) The decedent declares in a contemporaneous writing that the gift is an advancement against the heir’s share of the estate or that its value is to be deducted from the value of the heir’s share of the estate.

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Terms Used In California Probate Code 6409

  • Decedent: A deceased person.
  • Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
  • Heir: means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. See California Probate Code 44
  • Intestate: Dying without leaving a will.
  • Person: means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. See California Probate Code 56
  • Property: means anything that may be the subject of ownership and includes both real and personal property and any interest therein. See California Probate Code 62

(2) The heir acknowledges in writing that the gift is to be so deducted or is an advancement or that its value is to be deducted from the value of the heir’s share of the estate.

(b) Subject to subdivision (c), the property advanced is to be valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever occurs first.

(c) If the value of the property advanced is expressed in the contemporaneous writing of the decedent, or in an acknowledgment of the heir made contemporaneously with the advancement, that value is conclusive in the division and distribution of the intestate estate.

(d) If the recipient of the property advanced fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient’s issue unless the declaration or acknowledgment provides otherwise.

(Amended by Stats. 2002, Ch. 138, Sec. 8. Effective January 1, 2003.)

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