Chapter 10

COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 1CHAPTER 10 SUCCESSION T O COMMUNITY PROPERTY § 1001. Title of Surviving Spouse to Community Proper ty; Portion Subject to Testamentary Disposition or Succession. § 1003. Dispositions of Community Property to Someone Other Than Surviving Spouse: Law Governi ng Administration and Disposal. § 1005. Passage of Community Property to Surviving Spouse Without Administration; Surviving Spouse's Election of Administration. § 1007. Surviving Spouse's Ability to Deal W ith Com munity Property; Notice of Claim of Another Under Decedent's Will; Such Property Treated as If It W ere Surviving Spouse's Separate Property . § 1009. Surviving Spouse's Personal Liability for Deceased Spouse's Debts Chargeable Against Community Property; Exception. § 1001. Title of Surviving Spouse to Commu nity Property; Portio n Subject to Testamentary Disposi tion or Succession. Upon the death of any married person, one -half (2) of the community property belongs to the surviv ing spouse; the other half ( 2) is subject to the testamentary dispositio n of the decedent, and in the absence thereof goes to the surviving spouse, subject to the

ity property belongs to the surviv ing spouse; the other half ( 2) is subject to the testamentary dispositio n of the decedent, and in the absence thereof goes to the surviving spouse, subject to the following provisions of this Chapter . SOURCE : Probate Code of Guam (1970), § 201. COMMENT : Chapter 10, which corresponds generally to Division II, Chapter I of the P robate Code of Guam (1970), has been quite heavily revised. Several new Sections have been added, correspond ing to certain sections of the California Probate Code added since 1933; and the Sections corre spond ing to §§ 202 and 203 of the Probate Code of Guam (1970) have undergone extensive revision --for the most part, to make them sex -neutral under the mandate of Public Law 14 -28. The onlypart of Chapter 10 which has not been exten sively revised is § 1001; revision of this Section was felt to be unnec essary , as § 1001 merely sets forth the basic principle of suc cession to community property , while the Sections which follow refine that basic law to cover more specific situations. § 1003. Dispositions of Community Property to Some one Other Than Surviv ing Spouse: Law Gov erning Admin istration and Disposal.

which follow refine that basic law to cover more specific situations. § 1003. Dispositions of Community Property to Some one Other Than Surviv ing Spouse: Law Gov erning Admin istration and Disposal. When a deceased spouse disposes by will of all or part of his interest in the commu nity property to someone other than the surviving COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 2spouse, or when the will of a deceased spouse contains a trust, o r when the will of a deceased spouse limits the surviving spouse to a qualified owner ship in the property , that part of the interest of the deceased spous e in the community property disposed of to someone other than the surviving spouse, disposed of in tr ust, or limiting the surviving spouse to a qualified ownership in the community property shall be subject to adminis tration under the provisions of Division 3 of this Title. A will that provides for a devise or bequest of community property to the survivi ng spouse if such spouse survives the deceased spouse by a specified period of time shall not be considered to create such a qualified owner ship as to fall under the provisions of this Section, if the

spouse if such spouse survives the deceased spouse by a specified period of time shall not be considered to create such a qualified owner ship as to fall under the provisions of this Section, if the specified period of time has expir ed. SOURCE : Californ ia Probate Code, § 204 (as amended). § 1005. Passage of Community Property to Surviving Spouse Without Administration; Sur viving Spouse's Election of Admin - istration. (a) Except as provided in Section 1003 of this Title, when a married person dies intesta te, or dies testate and by valid will leaves all of his interest in the community property to the sur viving spouse, such interest passes to the surviving spouse subject to the provisions of Sections 1007 and 1009 of this Title, and no administration there on shall be necessary . (b) Notwithstanding the provisions of sub section (a) of this Section, upon the election of the surviving spouse or the personal representa tive or the guardian of the estate of the surviv ing spouse, the interest of the deceased spouse in the community property or both the interest of the de - ceased spouse and the surviving spouse in the communi ty property may be administered under the provisions

e interest of the deceased spouse in the community property or both the interest of the de - ceased spouse and the surviving spouse in the communi ty property may be administered under the provisions of Division 3 of this Title. The election provided for herein must be made within fou r (4) months after the issuance of letters testamentary or of adminis tration, by a writing filed in the proceedings for the adminis tration of the estate of the deceased spouse and prior to the entry of a decree under Section 3037 of this Title. (c) No twithstanding the provisions of sub sections (a) and (b) of this Section, the surviv ing spouse or the personal repre sentative or the guardian of the estate of the surviving spouse may file an election and agreement in the pro ceedings for the administrat ion of the estate of the deceased spouse to have all or part of the interest of the surviving spouse COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 3in the communi ty property transferred by the surviving spouse to the trustee under the will of the deceased spouse or the trustee of an existing trust ide ntified by the will of the deceased spouse, to be administered and

rty transferred by the surviving spouse to the trustee under the will of the deceased spouse or the trustee of an existing trust ide ntified by the will of the deceased spouse, to be administered and distributed by the trustee. The election and agreement must be filed befor e the entry of the decr ee of final distri bution in the proceedings. SOURCE : California Probate Code, § 202 (as a mended.) COMMENT : Section 202 of the California Probate Code provides for an election by the conservator of the surviving spouse's proper ty, in addition to elections by the personal represen tative and the guardian of the estate, in subsections (b) and (c ); Guam law cur rently contains no conservator ship provisions, and thus such provisions are currently un necessary in Guam. If conservatorship provisions are enacted in Guam, § 1005 should be amended to include the words, A...or conser - vator of the proper ty...@after the words, A...guardian of the estate... @in subsections (b) and (c). § 1007. Surviving Spouse's Ability to Deal With Community Property; Notice of Claim of Another Under Decedent's Will; Such Property Treated as If It Were Surviving Spouse's Sepa rate Property.

d (c). § 1007. Surviving Spouse's Ability to Deal With Community Property; Notice of Claim of Another Under Decedent's Will; Such Property Treated as If It Were Surviving Spouse's Sepa rate Property. After ninety (90) calendar days from death of a married person, the surviv ing spouse of such person or the personal represen tative or guardian of the estate of such surviv ing spouse shall have full power to sell, lease, mortgage or o therwise deal with and dispose of the community real proper ty, unless a notice is recorded in the Department of Land Management of the Government of Guam to the effect that an interest in the property is claimed by another under the will of the deceased s pouse. Such notice must also describe the property in which such interest is claimed, and set forth the name or names of the owner or owners of the record title to the property . There shall be endorsed upon such notice instructions that it shall be indexed by the Department of Land Manage ment of the Government of Guam in the name or names of the owner or owners of the record title to the property , as grantor or grantors, and in the name of the person claiming an interest in the property , as

he Government of Guam in the name or names of the owner or owners of the record title to the property , as grantor or grantors, and in the name of the person claiming an interest in the property , as grantee. The ri ght, title and interest of any grantee, purchaser, encumbrancer, or lessee shall be as free of rights of devisees or creditors of the deceased spouse to the same extent as if the property had been owned as the separate property of the surviving spouse. SOURCE : California Probate Code § 203 (as amended); Guam Law Revision Commission. COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 4COMMENT : See Comment to § 1005, supra, as similar considerations apply to § 1007. Note that in the Califor nia version of the Section, the time limitation set forth in the fir st sentence is forty days; this has been ex pand ed to ninety days in the Guam version, as the Commis sion was of the opinion that a ninety -dayperiod is a more realistic limitation in Guam, but does not impose an unreasonable restraint on alienation of re al property . § 1009. Surviving Spouse's Personal Liability for Deceased Spouse's Debts Chargeable Against Community Property; Exception.

does not impose an unreasonable restraint on alienation of re al property . § 1009. Surviving Spouse's Personal Liability for Deceased Spouse's Debts Chargeable Against Community Property; Exception. (a) Except as provided for by Section 2729(b) of this Title, upon the death of a married person, the surviv ing spouse is personally liable for the debts of the deceased spouse chargeable against the community proper ty, unless the interests of both spouses in the community property areadminis tered under the provisions of Division 3 of this Title as provided in Section 1 005(b) of this Title. The personal liability shall not exceed the value at the date of death, less the amount of any liens and encumbrances, of the interest which is not exempt from execution of the surviving spouse in the community property immedi ately prior to death of the deceased spouse, plus the interest of the deceased spouse passing to the surviving spouse without administration. (b) If proceedings are commenced in Guam for the adminis tration of the estate of the de ceased spouse and notice to creditors has been given by the personal represen tative, any action upon the liability of the surviving spouse

ced in Guam for the adminis tration of the estate of the de ceased spouse and notice to creditors has been given by the personal represen tative, any action upon the liability of the surviving spouse pursu ant to subsection (a) of this Section shall be barred to the same extent as provided for claims under Section 2521 of this Title, except as to the following: (1) Creditors who had commenced judicial pro ceedings for the enforcement of the debts and had served the surviving spouse with process prior to the date of the last publica tion of the notice to creditors; (2) Creditors who secure th e acknowledg ment in writing of the liability of the surviv ing spouse for the debts; (3) Creditors who file a timely claim in the pro ceedings. (c) Except as provided in subsection (b) of this Section, any debt described in subsection (a) of this Sect ion may be enforced against the surviving spouse in the same manner as it could have been enforced against the deceased spouse if the deceased spouse had not died. In any action based upon such debt, the surviving spouse may assert any COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 5defenses, countercla ims or setoffs

use had not died. In any action based upon such debt, the surviving spouse may assert any COL12010615GCA ESTATES AND PROBATE CH.10SUCCESSION TO COMMUNITY PROPERTY 5defenses, countercla ims or setoffs which would have been available to the deceased spouse if the deceased spouse had not died. SOURCE : California Probate Code, § 205. COMMENT : Note that § 2513, infra, permits the surviving spouse to make a claim against the deceased spouse's estate for the payment of debts described in § 1009. ----------