Chapter 24

COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 1CHAPTER 24 SUPPORT OF FAMIL Y:HOMESTEAD AND EXEMPT PROPERTY , FAMIL Y ALLOW ANCE § 2401. Possession Pending Inventory: Discretion to Set Apart Property Exempt from Execution; Mandatory Setting Apart of Homestead Property Previously Selected by Spouses. § 2403. Notice of Hearing Petition. § 2405. Vesting of Homestead; Exemption from Liability for Debts. § 2407. Appraisement of Previously Selected Homestead; Excess Over Homestead Exemption; Appraiser's Report; Appointment of New Appraiser; Notice and Hearing. § 2409. Selection and Designation of Probate Homestead; Property From Which Selected; Duration; Subjection to Administration. § 2411. Ownership of Property Set Aside. § 2413. Successor to Holder of Homestead Right. § 2415. Family Allowance: Right to Allow ance; Preference in Payment; Time of Commencement. § 2417. Family Allowance: When May be Granted; Continuance; Modification; No Stay on Appeal. § 2419. Family Allowance: Where Persons Entitled Have Other Support. § 2421. Costs. § 2401.

Commencement. § 2417. Family Allowance: When May be Granted; Continuance; Modification; No Stay on Appeal. § 2419. Family Allowance: Where Persons Entitled Have Other Support. § 2421. Costs. § 2401. Possession Pending Inventory: Discre tion to Set Apart Property Exempt Fro m Execu tion; Mandatory Setting Apart of Hom estead Property Previously Selected by Spouses. The decedent's surviving spouse and minor children are entitled to remain in possession of the home stead, th e wearing apparel of the family, the household furniture, and other property of the decedent exempt from execution, until the inven tory is filed in the Superior Court. Ther eupon, or at any subsequent time during the adminis tration, the Superior Court of Guam, on petition therefor, may in its discretion set apart to the surviving spouse, or, in case of the surviving spouse's death, to the minor child or children of the decedent, all or any part of the property of the decedent exempt from execution, and mu st set apart to such spouse or to such minor child or children the homestead selected, designated and recorded, if such homestead was selected from the community property, or from property to which Section

apart to such spouse or to such minor child or children the homestead selected, designated and recorded, if such homestead was selected from the community property, or from property to which Section 1101 of this COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 2Title is applica ble, or from the sep arate proper ty of the person selecting or joining in the selection of the same. SOURCE: Probate Code of Guam (1970), § 660. COMMENT : Chapter 24 covers two broad subject -matter areas: homestead and family allowance. Both of these areas are subsumed under the general notion of support of the family during the administration of the dece dent's estate. More specific comments con cerning the two types of homestead, and concerning the award of a family allow ance, are contained in certain of the Comments to suc ceed- ing Sections within Chapter 24. A few general comments concerning the setting aside of the homestead to the surviving family , are, however, in order here. Section 2401 provides that the surviving family may keep possession of the homestead, clothing, household effects and other proper tyof the decedent exempt from

family , are, however, in order here. Section 2401 provides that the surviving family may keep possession of the homestead, clothing, household effects and other proper tyof the decedent exempt from execution, pending the filing of the inventory . After the inventory is filed, the Court may set aside to the family any of the decedent's property exempt from execution, and it must set asi de a previ ously -selected homestead (unless it was selected by the surviving spouse out of the decedent's separate proper ty, without the decedent's having joined in the selec tion) --in either case, upon petition therefor. The purpose underlying the home stead legislation (both in the Civil Code and in the Probate Code) is to provide a place for the surviving family where they ma y dwell in peace and serenity , conscious that it cannot be taken from then by reason of their own necessity or improvi dence, or from the impor tunity of their creditors. See Estate of Kachigan (1942), 20 C.2d 787, 128 P .2d 865. The policy of the law in this area is so strong that if no homestead has been de clared under the provisions of the Civil Code, then upon the decedent's de ath the court will declare a

128 P .2d 865. The policy of the law in this area is so strong that if no homestead has been de clared under the provisions of the Civil Code, then upon the decedent's de ath the court will declare a homestead for the surviving family . These points will be addressed in more detail in the Comments to some of the subsequent Sections in this Chapter . § 2403. Notice of Hearing Petition. When the petition referred to in Section 2401 or the peti tion referred to in Section 2409(a) of this Title is filed, the Clerk of the Superi or Court of Guam shall set it for hearing, and notice thereof shall be given in the manner provided in Section 3401 of this Title. SOURCE: Probate Code o f Guam (1970), § 662. § 2405. V esting of Homestead; Exemption From Liability for Debts. (a) If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community p roperty , or from property to which Section 1101 of this Title is applicable, or from the separate proper ty of the person selecting or joining in the selection of the same, it vests, on the death of either spouse, absolutely in the survivor .

1101 of this Title is applicable, or from the separate proper ty of the person selecting or joining in the selection of the same, it vests, on the death of either spouse, absolutely in the survivor . COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 3(b) If the homestead was selected from the separate property of the decedent, the decedent not having joined therein, it vests, on death, in the decedent's heirs or devisees, subject to the power of the Superi or Court to set it apart for a limited period to the fam ily of the decedent, as provided in Section 2409 of this Title. (c) No homestead referred to in subsections (a) or (b) of this Section is subject to the payment of any debt or liability existing against the spouses or either of them, at the time of the death of either, except as provided in the Civil Code of Guam. SOURCE: Probate Code of Guam (1970), § 663; Califor nia Probate Code, § 663 (as amended); Guam Law Revision Commis sion. COMMENT : Apart from minor wording chang es and the use of subsections, t he onlysubstantive change to § 663 of the Probate Code of Guam (1970) is the addi - tion of lan guage concerning

Commis sion. COMMENT : Apart from minor wording chang es and the use of subsections, t he onlysubstantive change to § 663 of the Probate Code of Guam (1970) is the addi - tion of lan guage concerning Aquasi -community proper [email protected]., the language concerning § 1101. The purpose of §§ 2405 and 2407 is to grant absolute title in previ ously d eclared homesteads to the surviving family , if the homestead was selected from community prop erty, Aquasi -community @property or the separate property of the person who made the selection or joined in the selection. By the operation of these Sections, suc h property is not part of the probate estate; in effect, these Sections convert previously homesteaded proper tyinto something very much like property held in joint tenancy . Moreover, property so passed to surviving family is exempt from execution, unless --as provided in the Civil Code --the property is encum bered. If, on the other hand, previously declared homestead proper tywas selected from the decedent's separate property without the decedent's consent, then the property vests in the decedent's he irs or devisees (depend ing on whether the decedent died testate or intestate),

cted from the decedent's separate property without the decedent's consent, then the property vests in the decedent's he irs or devisees (depend ing on whether the decedent died testate or intestate), subject to the power of the court to set it aside in any event to the decedent's family for a limited period of time, as provided elsewhere in this Chapter . But in either case, where there was a previously declared homestead, where the proper person petitions for a homestead after the decedent's death and where the court grants such a homestead, the home stead property is exempt from the payment of the decedent's debts --except , again, as provid ed in the Civil Code as to encum bered property . § 2407. Appraisement of Previously Selected Home stead; Excess Over Homestead Exemption; Appraiser's Report; Appointment of New Ap praiser; Notice and Hearing. (a) If the home stead selec ted, designated and recorded prior to the decedent's death is returned in the invento ry appraised not over the amount of the home stead exemption as provided in the Civil Code of Guam, and in effect at the time of the decedent's death, or was previously appraised as provided in the Civil Code of Guam and

the amount of the home stead exemption as provided in the Civil Code of Guam, and in effect at the time of the decedent's death, or was previously appraised as provided in the Civil Code of Guam and such appraised value did not exceed that amount, the Superior Court shall order it set aside to the persons in whom title is vested by Section 2405 of this Title. COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 4(b) If the homestead selected, designat ed and r ecorded prior to the decedent's death is returned in the inventory appraised at more than the amount of the homestead exemption as pro vided in the Civil Code of Guam, and in effect at the time of the decedent's death, the apprais er must, before h e ma kes his return, ascertain and appraise the value of the homestead at the time the same was selected. (c) If the appraised value of the homestead at the time the same was selected, as referred to in subsection (b) of this Section, exceeds the amount of the homestead exemp tion as provided in the Civil Code of Guam, and in effect at the time of the decedent's death, the appraiser must determine whether the premises can be

tion, exceeds the amount of the homestead exemp tion as provided in the Civil Code of Guam, and in effect at the time of the decedent's death, the appraiser must determine whether the premises can be divided without material injury . (1) If the appraiser finds that the prem isescan be thus divided, he must admeasure and set apart to the parties entitled thereto such portion of the premises, including the dwelling house, as will equal in value the amount of the homestead exemption as provid ed in the Civil Code of Guam, and in ef fect at the time of the decedent's death, and make report thereof to the Superior Court of Guam, giving an exact description of the portion set apart as a homestead. (2) If the appraiser finds that the prem ises cannot be so divided without material injur y,he must report such finding to the Superior Court, and thereafter the Superior Court may make an order for the sale of the pr emises and the distribution of the proceeds to the parties entitled thereto. (d) When the report of the appraiser, as referre d to hereinabove, is filed, the Clerk of the Superior Court shall set the same for hear ing, and notice thereof shall be given in the manner provided in

) When the report of the appraiser, as referre d to hereinabove, is filed, the Clerk of the Superior Court shall set the same for hear ing, and notice thereof shall be given in the manner provided in Section 3401 of this Title. If the Superior Court is satisfied that the report is correct, it must be c onfirmed, otherwise rejected. In case the report is rejected, the Superior Court may appoint a new appraiser to examine and report upon the homestead, and similar proceedings may be had for the confirma tion or rejection of such new appraiser's report, as upon the first report. SOURCE: Subsection (a): Probate Code of Guam (1970), § 664. Subsection (b): Id. Subsection (c): Probate Code of Guam (1970), §§ 664, 665. Subsection (d): Califor nia Probate Code, § 666 (as amended). COMMENT : See Comment to § 2405, supra.COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 5§ 2409. Selection and Designation of Probate Home stead; Property From Which Selected; Duration; Subjec tion to Administration. (a) If no home stead has been selected, designated and recorded, or in case the homestead was selected by the surviving s pouse out of the

rom Which Selected; Duration; Subjec tion to Administration. (a) If no home stead has been selected, designated and recorded, or in case the homestead was selected by the surviving s pouse out of the separate property of the decedent, the decedent not having joined therein, the Superior Court of Guam, on petition therefor and in the manner hereinafter provided, must select, designate and set apart and cause to be recorded a home stead for the use of the surviving spouse and minor children, or, if there be no surviving spouse, then for the use of the minor child or children. Such homestead select ed, designated and set apart and caused to be recorded by the Superior Court may be referred toas a Aprobate homestead. @ (b) The Aprobate homestead @referred to in subsection (a) of this Section shall be selected, designated and set apart out of the community property , or out of property to which Section 1101 of this Title is applicable, or ou t of r eal property owned in common by the decedent and the person or persons entitled to have the homestead set apart; or, if there be no communi ty property , or no property to which Section 1101 of this Title is applicable, or no real prop erty

ent and the person or persons entitled to have the homestead set apart; or, if there be no communi ty property , or no property to which Section 1101 of this Title is applicable, or no real prop erty owned in c ommon by the decedent and the person or persons entitled to have the homestead set apart, then out of the separate property of the decedent. (c) If the Aprobate homestead @selected, designated and set apart under the provisions of this Section is the se parate property of the decedent, the Superior Court can set it apart only for a limited period, to be designated in the or der, and in no case beyond the lifetime of the surviving spouse, or, as to a child, beyond its minority; and, subject to such homestea d right, such property remains subject to adminis tration. SOURCE: California Probate Code, § 661 (as amended through 1957); Guam Law Revision Commission. COMMENT : Sections 2409 and 2411 cover the so -called Aprobate homestead. @ Like the declared homestea d, this ty pe of homestead is purely a creature of statute, and exists for precisely the same purposes as the declared homestead.

cover the so -called Aprobate homestead. @ Like the declared homestea d, this ty pe of homestead is purely a creature of statute, and exists for precisely the same purposes as the declared homestead. Note that, as before, the court has no discretion as to whether to grant a Aprobate home stead@; once the proper peti tion is filed, the court must select a home stead for the surviving family . § 241 1. Ownership of Property Set Aside. When proper ty other than a homestead selected and recorded during the lifetime of the dece dent, is set apart to the use of the decedent's COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 6family , in accordance with the provisions of this Chapter, such property , if the decedent left a surviving spouse and no minor child, is the property of such surviv ing spouse; if the dece dent left also a minor child or children, one -half (2) of such property b elongs to the surviving spouse and the remainder to the child or in equal shares to the children; if there is no surviving spouse, the whole belongs to the minor child or children. SOURCE: Probate Code of Guam (1970), § 667.

pouse and the remainder to the child or in equal shares to the children; if there is no surviving spouse, the whole belongs to the minor child or children. SOURCE: Probate Code of Guam (1970), § 667. COMMENT : See Comment to § 2409 , supra. § 2413. Successor to Holder of Homestead Right. A person succeeding, by purchase or otherwise, to the interest of a surviving spouse in a homestead which has been declared in the lifetime of the decedent, shall have the same right to apply to the Superior Court for an order setting aside the homestead to him as is conferred by law on the person whose interest he has acquired. SOURCE: Probate Code of Guam (1970), § 668. § 2415. Family Allowance: Right to Allowance; Prefer ence in Payment; Time of C ommencement. The decedent's surviving spouse, minor chil dren, and adult children who are physically or mentally incapacitated from earning a living and were actually dependent in whole or in part upon the decedent for support, are entitled to such reason able allowance out of the estate as shall be necessary for their maintenance according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent

ason able allowance out of the estate as shall be necessary for their maintenance according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent estate, must not continue longer than one (1) year after gran ting letters. Such allowance must be paid in preference to all other charges, except funeral charges, expenses of the last illness and expenses of administration, and may , in the discretion of the Superior Court, take effect from the time of the dece dent's death. SOURCE: California Probate Code, § 680 (as amended). COMMENT : The only difference between § 680 of the Probate Code of Guam and the amended version of § 680 of the California Probate Code is that the Califor nia version adds decedent's adult chil dren who are incapable of earning a living and were dependent on the decedent, as people who are entitled to a family allow ance. Given the underlying purpose of Chapter 24 --to allow the family unit to continue to function as normally as possible after t he decedent's death --such a provision seems only fair .COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 7§

on as normally as possible after t he decedent's death --such a provision seems only fair .COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 7§ 2417. Family Allowance: When May be Granted; Continuance; Modification; No Stay on Appeal. (a) The allowance provided in Section 2415 of this Title may be granted by the Superi or Court before the inventory is filed, in which case it shall continue until modified by the Superior Court. After the inventory is filed the Superior Court may grant such allowance, or may modify any allowance made before the filing of the inventory , upon the petition of any person interested, and a hearing after notice is given in the manner provided in Section 3401 of this Title. (b) Notwithstanding any other provision of law , no stay shall be had of the payment of any allowance provided in Section 2415 of this Title, or of any installment thereof, pending appeal from an order relating thereto. If the Superior Court of Guam, acting under the provisions of Section 942 of the Code of Civil Procedure, dispenses with or limits the security required of the person who appeals such order, it may in its

e Superior Court of Guam, acting under the provisions of Section 942 of the Code of Civil Procedure, dispenses with or limits the security required of the person who appeals such order, it may in its discretion required that the person in whose favor the allowance provided in Section 2415 of this Title was made provide security such as that required of a personal representative under the provisions of Subchapter B of Chapter 2 0 of this Title, to the effect that if the order ap pealed from, or any part thereof, be so modi fied or reversed that such allowance, or any part thereof, proves to be unwarranted, the same shall, unless deducted from any final or partial distribution ord ered in fa vor of the person in whose favor such allowance was awarded, be repaid and refunded into said estate, and, if not so repaid and refunded within thirty (30) calen dar days after the Superior Court shall so order following such modification or reve rsal, judgment may be entered therefor, on the motion of the personal representative of said estate, in favor of such personal representative and against the person in whose favor such allowance was made and the sureties, if any , on his undertaking or

of the personal representative of said estate, in favor of such personal representative and against the person in whose favor such allowance was made and the sureties, if any , on his undertaking or othe r form of s ecurity as provided in this sub section, for such amount, together with interest and costs. SOURCE: Subsection (a): Probate Code of Guam (1970), § 681. Subsection (b): Califor nia Probate Code, § 684 (as amended); Guam Law Revision Commission. COMMENT : The Probate Code of Guam (1970) con tained no provision concerning stays of family allow ance upon appeal. The Commis sion has thus added subsection (b), which is based on a similar provision of California law (although it is somewhat less complex than the California version), to fill that void.COL12010615GCA ESTATES AND PROBATE CH.24SUPPORT OF FAMILY:HOMESTEAD AND EXEMPT PROPERTY ,FAMILY ALLOWANCE 8§ 2419. Family Allowance: Where Persons Entitled Have Other Support. If any person otherwise eligible for the allowance provided in Section 2415 of this Title has a reasonable main tenance derived from other sources, and there are other persons entitled to such allowance, the allowance shall be granted only to those who

ovided in Section 2415 of this Title has a reasonable main tenance derived from other sources, and there are other persons entitled to such allowance, the allowance shall be granted only to those who have not such maintenance. SOURCE: California Probate Code, § 682 (as amended). COMMENT : The equivalent section of the Probate Code of Guam (1970) has been altered in order that it comport with the revised provisions of § 2415. If, for example, a mentally incapacitat ed adult child of the decedent lives in a public institution and is reasonably provided for by that institu tion, then the prov isions of § 2419 allow the court to grant a family allowance only to such other eligible persons --e.g., the surviving spouse, minor children --as might need it. § 2421. Costs. The costs of all proceedings provided for in this Chapter must be paid by th e estate as expenses of administration. SOURCE: Probate Code of Guam (1970), § 683. ----------