Probate Law v. Criminal Law

When a widow or widower passes away intestate (without a will) and they are the sole titleholder to real estate, the property passes first to their children, if any, in equal shares. Probate Code §§ 6400, 6402. Assuming their are children, they have a legal interest in the property as an heir. For example, if there are 5 surviving kids, each would have a 20% ownership interest in the property. They would still need to undergo formal probate to transfer ownership. Still, their ownership in the property vested the moment their parent passed away. Probate Code § 7000. However, a recent unpublished appellate opinion emphasized the difference between probate law and criminal law for burglary purposes.

People v. Perkins, Case # MCR045896, Madera County Superior Court.

The defendant had been convicted of burglary and other crimes, which resulted in an 11-year prison term. One issue on appeal was whether the "defendant had a possessory interest in his deceased mother's house, entitling him to enter when he did."

Since the defendant's mother had passed away intestate, the defendant, as a child, had a legal interest in the property. However, the appellate opinion stressed that the defendant did not have a possessory interest in his late mother's home. That is, the defendant did not live at the residence. According to the opinion, the mother did not allow the defendant in the house except to make an occasional phone call. She only permitted the defendant to keep two garbage bags filled with personal possessions on the back porch. Lastly, the defendant broke into the home through a window (a good sign that you don't live there as most people would opt for the standard door route). Therefore, even though he had a legal interest in the property, as an heir to his mother's estate, he did not have a possessory interest in the property. Since a burglary conviction stems from a lack of a possessory interest, which the defendant did not have, his conviction was upheld on appeal.

This case cited People v. Smith (2006) 142 Cal.App.4th 923 for the proposition that having legal ownership is not the same as having a possessory interest. In that case, a husband was convicted of burglarizing a home which he and his estranged wife owned jointly. (suffice to say a rather messy divorce).