When a person dies testate, her real property will
Audio Lesson
Duration: 2:27
Question & Answer
Review the question and all answer choices
escheat to the government.
A is incorrect because escheat occurs when there are no heirs or beneficiaries to inherit property, causing it to revert to the government. This only happens when someone dies without a will and without any legal heirs, which is not the case in testate death.
pass to the next of kin.
B is incorrect because property passing to next of kin occurs only when someone dies intestate (without a will). In testate death, the will dictates who receives the property, not the laws of intestate succession.
descend to the survivors.
pass to the devisees.
D is incorrect because while devisees do receive property in a will, the term 'descend' more accurately describes the legal process of real property passing through inheritance. Real property specifically descends, while personal property is bequeathed to devisees.
Why is this correct?
C is correct because when someone dies testate, their real property descends to the survivors according to the terms specified in their will. 'Descend' specifically refers to the passing of real property through inheritance, which is controlled by the will in testate cases.
Deep Analysis
AI-powered in-depth explanation of this concept
This question addresses what happens to real property when a person dies with a valid will (testate). Understanding this concept is crucial in real estate practice because agents frequently encounter situations involving estate properties, inheritance disputes, and property transfers after death. The core concept here is the distinction between testate (with will) and intestate (without will) death. For testate death, real property passes according to the will's terms, typically to beneficiaries named as devisees. The question tests your knowledge of probate terminology and the default rules of property inheritance. The challenge lies in understanding the specific legal terms: 'escheat' (property returning to government), 'next of kin' (heirs without a will), 'descend' (passing to heirs), and 'devisees' (beneficiaries named in a will). This connects to broader real estate knowledge about property rights, transfer of title, and the probate process.
Knowledge Background
Essential context and foundational knowledge
The concept of property descent dates back to English common law and forms the basis of modern inheritance law. In California, the Probate Code governs how property passes after death. When someone dies testate, their will controls the distribution of both real and personal property, but different terminology applies: real property 'descends' while personal property is 'bequeathed.' The will must be properly executed according to state requirements to be valid. This system ensures that property owners can control what happens to their assets after death rather than having the state decide through intestate succession laws.
Think of a will as a road map for your property after death. Just as a road map directs travelers to their destinations, a will directs property to its rightful heirs (devisees). Real property 'descends' like water flowing downhill following the path laid out in the map.
When you see 'testate' on an exam, visualize a road map (will) directing where property should go. Remember that real property descends (flows) according to this map.
When questions mention 'testate,' immediately think 'will controls.' Remember that real property 'descends' while personal property is 'bequeathed' to devisees. The correct answer will reflect the will's authority over property distribution.
Real World Application
How this concept applies in actual real estate practice
A real estate agent lists a property that belongs to the estate of a deceased client. The client died testate, leaving a will that specifies the property should pass to their two children. The agent must understand that the property will descend to these beneficiaries according to the will's terms, not automatically to the next of kin. The agent will need to work with the executor of the estate to ensure proper transfer of title following probate procedures. Without this knowledge, the agent might incorrectly advise potential buyers about who has the authority to sell the property.
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