Estate of John Kenly, Deceased, Betty B. Kenly, Personal Representative - Page 14

                                                 - 14 -                                                   
            Bard property) at the time of his death.2  We must decide                                     
            whether, at the time of decedent's death, the interest in the                                 
            Bard property was decedent’s separate property or community                                   
            II.  Relevant Law                                                                             
                  A.  State Law                                                                           
                  We look to State law to determine property rights.  Estate                              
            of Rowan v. Commissioner, 54 T.C. 633, 639 (1970) (citing                                     
            Commissioner v. Estate of Bosch, 387 U.S. 456 (1967)).  “The                                  
            realty of a decedent is disposed of in accordance with the laws                               
            of the state in which it is located.”  In re Herbert’s Estate,                                
            109 P.2d 729 (Cal. Ct. App. 1941); cf. Cal. Civ. Code sec. 755                                
            (West 1982) ("Real property within this State is governed by the                              
            law of this State, except where the title is in the United                                    
            States.").  The Bard property is located in California, and,                                  
            consequently, we must look to California law to determine how it                              
            passed on decedent’s death.  If the Bard property was decedent's                              
            separate property, then one-third of his interest in that                                     
            property passed to petitioner under the intestate succession law                              

            2     The record is ambiguous as to whether, at the time of                                   
            decedent's death, the Bard property was owned by the Windmill                                 
            Ranch partnership (the partnership).  Petitioner clearly believes                             
            that the Bard property was not owned by the partnership, although                             
            she has not proposed a finding to that effect.  At trial,                                     
            respondent's counsel stated that she had no knowledge that the                                
            Bard property had ever been deeded to the partnership.  We shall                              
            assume, without deciding, that the Bard property was not owned by                             
            the partnership.                                                                              

Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011