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CALIFORNIA LAW REVISION COMMISSIONSTAFF MEMORANDUMStudy L-4130.1August 15, 2018Memorandum 2018-36Disposition of Estate Without Administration: Dollar Amounts(Public Comment)This study addresses Probate Code provisions that provide procedures forthe disposition of a small estate or portion of an estate without probateadministration. The provisions typically restrict the use of these procedures toestates or assets under a certain dollar amount.The Commission circulated a tentative recommendation that proposedupdating the dollar amounts to reflect cost-of-living increases since those valueswere last modified. In addition, the tentative recommendation proposes anautomatic adjustment procedure, so that the values will be subjected to anadministrative adjustment every three years to reflect cost-of-living increases.The Commission received one written comment, from Retired Judge ArnoldH. Gold, which is attached as an Exhibit to this memorandum. In addition, thestaff spoke informally with the Judicial Council staff regarding this proposal andthe role of the Judicial Council in calculating and publishing the adjusted dollaramounts. This memorandum discusses these comments. It also discusses a fewminor issues related to the draft recommendation.Unless otherwise noted, all statutory references in this memorandum are tothe Probate Code.COMMENT FROM RET. JUDGE ARNOLD H. GOLDJudge Gold1 writes to express concern that one aspect of the proposedlegislation is ambiguous. His concern is described below, after a brief summaryof the relevant portion of the proposed legislation.The proposed legislation would require the Judicial Council to calculate andpublish adjusted dollar amounts. The adjustment calculation and publicationwould occur every three years on April 1st. The adjusted dollar amounts arecalculated using the change in the consumer price index data “from the1. Judge Gold’s comment is attached to this memorandum. See Exhibit p. 1.–1–
December three years prior to the adjustment to the December immediatelypreceding the adjustment.”2Since the adjustment occurs in April, Judge Gold rightly notes that “[t]hreeyears prior to the adjustment is not a December, it is an April.”3 Judge Goldrecommends that this ambiguity be eliminated by using the phrase “theDecember that is 40 months prior to the adjustment.”4Judge Gold’s proposed language is consistent with the intent of the proposal.To avoid any possible confusion, the staff recommends that therecommendation be changed to use the language proposed by Judge Gold inSection 890. Using Judge Gold’s language, subdivisions (a) and (b) of proposedSection 890 will read (with changes from the original proposal shown instrikeout and underscore):(a) On April 1, 2022, and at each three-year interval ending onApril 1 thereafter, the dollar amounts specified in Chapter 6(commencing with Section 6600) of Part 3 of Division 6 and inDivision 8 (commencing with 13000) in effect immediately beforethat date shall be adjusted as provided in subdivision (b).(b) The Judicial Council shall determine the amount of theadjustment based on the change in the United States city average ofthe “Consumer Price Index for All Urban Consumers,” aspublished by the United States Bureau of Labor Statistics, from theDecember three years that is 40 months prior to the adjustment tothe December immediately preceding the adjustment, with eachadjusted amount rounded to the nearest twenty-five dollars ( 25).Does the Commission approve of this change?JUDICIAL COUNCIL’S ROLE IN COMPUTING AND PUBLISHING ADJUSTED DOLLARVALUESAs indicated above, the proposed law would task the Judicial Council withcalculating and publishing the adjusted dollar amounts every three years for theaffected provisions of the Probate Code. The staff spoke informally with theJudicial Council staff about the proposal. The Judicial Council staff did not raiseconcerns about their role in adjusting the dollar amounts.2. See proposed Section 890(b).3. Exhibit p. 1.4. Id.–2–
ADDITIONAL ISSUESPossible Erroneous Cross-ReferenceThe tentative recommendation included a Note seeking comment on apossibly erroneous cross-reference in Section 13602. The Commission received noformal comments on this issue. During an informal staff conversation, theJudicial Council staff raised new issues that suggest a broader cross-referencechange (which would require amending a provision that is not currently affectedby the recommendation) may be the appropriate reform.In short, the cross-reference issue seems to be more complicated than itinitially appeared. Fortunately, this issue can be addressed more broadly later aspart of the Commission’s ongoing study of Probate Code issues. Rather thanexpanding this recommendation to properly coordinate the cross-references, thestaff proposes that the recommendation maintain a tight focus on the dollaramount adjustments and make no change to the cross-reference in Section 13602.Does the Commission approve of this approach?Minor Changes to Draft RecommendationIn preparing the draft recommendation, the staff identified several minorclarifying changes and stylistic revisions that have been incorporated into theattached draft.Need for Update of Dollar AmountsThe staff also wants to note that the dollar values contained in the draftrecommendation reflect cost-of-living changes up through December 2017. Inorder to sync up the adjustment schedules for these dollar values with theadjustment schedule for the dollar values for the exemptions from theenforcement of money judgments in the Code of Civil Procedure, these dollarvalues will need to be updated to reflect changes through December 2018. Thestaff is planning to make this update in mid-January 2019 (after the release of theDecember 2018 data).APPROVAL OF RECOMMENDATIONWith the caveat that the dollar values contained in the draftrecommendation will need to be updated as described in this memorandum,does the Commission approve the attached draft (as is or with modifications)–3–
as a final recommendation for submission to the Legislature and publicationin the Commission’s official reports?Respectfully submitted,Kristin BurfordStaff Counsel–4–
HoN. ARNOLDH.TELEPHONE(213) 891-1501CoLDFACSIMILE(323) 822-0912JUDGE OF THE SUPERIOR COURT, RETIREDPRIVATE DISPUTE RESOLUTIONEMAIL10842 ALTA VIEW DRIVEJudgeagold@aol.comSTUDIO CITY, CALIFORNIA 91604-3901June 8, 2018California Law Revision Commissionc/o King HaU L \\' SchoolDavis, CA 95616Re: Your #L-4130.1 Tentative Recommendation reDisposition of Estate WithoutAdministration - Dollar AmountsLadies and Gentlemen:I have only one comment concerning the above-described TentativeRecommendation:It seems to me that the phrase "the December three years prior to theadjustment" at line 14 on proposed new Probate Code Section 890 is ambiguous: Threeyears prior to the adjustment is not a December, it is an April.The use of the phrase "the December that is 40 months prior to theadjustment" in place ofthe ambiguous phrase would eliminate the ambiguity.Sincerely yours,)!. -
#L-4130.1STATE OF CALIFORNIACALIFORNIA LAWREVISION COMMISSIONSTAFF DRAFTRECOMMENDATIONDisposition of Estate Without Administration:Dollar AmountsAugust 2018California Law Revision Commissionc/o King Hall Law SchoolDavis, CA 95616530-752-3620 commission@clrc.ca.gov
SUMMARY OF RECOMMENDATIONThe Probate Code provides several options for estates or portions of estates to beconveyed without requiring a full probate proceeding. Many of these provisionsthat allow disposition of an estate without administration include a dollar limit,authorizing use of the procedure only where the value of the relevant assets is lessthan the specified amount.The Commission concluded that, unless the dollar amounts were adjusted toaccount for inflation, the availability of these procedures would decrease over timedue to inflation. This, in turn, could effectively require more estates to beadministered in probate.The Commission believes that these disposition without administrationprocedures are a useful tool and their availability should be preserved. Therefore,the Commission recommends adjusting the dollar amounts to reflect the cost-ofliving changes due to inflation since these amounts were last adjusted. TheCommission also recommends that these amounts be adjusted and publishedadministratively triennially (every three years) going forward.This recommendation was prepared pursuant to Chapter 150 of the Statutes of2016.
STAFF DRAFT ) August 15, 2018DISPOSITION OF ESTATE WITHOUTADMINISTRATION: DOLLAR AMOUNTS1BACKGROUND212The Probate Code contains a number of provisions that permit an estate or aportion of an estate to be collected without administration (or with substantiallysimplified administration). Some of these procedures are limited to estates orassets below a specified dollar amount.These procedures are helpful to heirs and beneficiaries of small estates, as theprocedures make it possible to avoid the delays and costs associated with probateadministration.1 In addition, these procedures lessen the burden on courts andallow judicial resources to be directed to matters requiring greater judicialoversight.2The Commission studied the dollar limits for these procedures to determinewhether those dollar limits need to be adjusted.13SCOPE OF THE ISSUE14The Commission’s study of this topic focused on procedures that permitcollection of an estate or assets of a decedent without administration or withsubstantially simplified administration that are subject to a maximum dollar limit.In particular, the Commission focused on the following provisions of the 82930JJ J Small Estate Set-Aside (Sections 6600-6615). These provisions allow thedecedent’s spouse and/or minor children to petition the court to set thedecedent’s estate aside for them. The procedure is only applicable when thevalue of the estate (subject to specified exclusions3) does not exceed 20,000.Affidavit Procedure for Collection or Transfer of Personal Property(Sections 13100-13116). These provisions permit a decedent’s successor4 tocollect certain property without administration, when the gross value of thedecedent’s real and personal property in this state does not exceed 150,000(subject to Section 13050, described below).Transfer of Real Property Without Administration (Sections 13150-13158).Under these provisions, a court may order the transfer of real property to a1. See Senate Committee on Judiciary Analysis of AB 1305 (June 6, 2011), p. 4.2. Id.3. See Prob. Code §§ 6602, 6609.4. See id. § 13006.–1–
STAFF DRAFT ) August 15, 201812345678910111213J J decedent’s successor5 if the gross value of the decedent’s real and personalproperty in this state does not exceed 150,000) (subject to Section 13050,described below).Affidavit Procedure for Real Property of Small Value (Sections 1320013210). These provisions allow a decedent’s successor6 to record a courtcertified affidavit, to transfer title to the decedent’s real property to thesuccessor. The provisions only apply if the gross value of all real property inthe decedent’s estate located in California does not exceed 50,000 (subjectto Section 13050, described below).Collection by Affidavit of Compensation Owed Deceased Spouse (Sections13600-13606). These provisions allow a decedent’s surviving spouse tocollect salary or other compensation owed by an employer for personalservices of the deceased spouse, of 15,000 or less.20Probate Code Section 13050 provides a rule for calculating the value of thedecedent’s property, which is used to determine the availability of certainprocedures described above. In that calculation, Section 13050(c)(2) excludes upto 15,000 of unpaid compensation owed to the decedent.This recommendation addresses only the dollar amounts noted above.This recommendation does not address and the Commission takes no position onthe suitability of dollar amounts in other provisions of the Probate Code.21PROBLEM22These procedures for simplified administration and disposition of administrationare subject to dollar limits, as indicated above. These dollar limits serve animportant function by balancing the need for judicial oversight with the need forjudicial economy and the avoidance of unnecessary administration.7 The dollarlimits represent a considered choice in which the Legislature struck a balancebetween these important, competing policy concerns.Over time, changes in the cost of living could shift the policy balance struck bythe Legislature. As the cost of living increases, the purchasing power of thesedollar limits will be lower. Fewer estates and assets will qualify to use theseprocedures and would, instead, require administration in a full probate proceeding.As such, “[t]he Legislature has regularly reemphasized the importance ofmaintaining this balance by adjusting the applicable limits regularly over time.”814151617181923242526272829303132335. Id.6. Id.7. Senate Committee on Judiciary Analysis of AB 1305 (June 6, 2011), pp. 4-5.8. Id at 5.–2–
STAFF DRAFT ) August 15, 20181RECOMMENDATION220The Commission recommends that the dollar amounts contained in Chapter 6(commencing with Section 6600) of Part 3 of Division 6 and Division 8(commencing with 13000) of the Probate Code be adjusted to reflect the cost-ofliving increases since these amounts were previously changed.9In addition, the Commission recommends that an automatic cost-of-livingadjustment mechanism be added to the Probate Code to provide for periodicadministrative adjustment of the dollar amounts and publication of those adjustedamounts going forward.10 This automatic adjustment mechanism (proposedProbate Code Section 890) is modeled after Code of Civil Procedure Section703.150, which provides for automatic adjustment of the dollar amounts forexemptions from the enforcement of money judgments.As with Code of Civil Procedure Section 703.150, proposed Probate CodeSection 890 would assign the Judicial Council the task of adjusting the dollaramounts and publishing those adjusted amounts.Proposed Probate Code Section 890 uses the same triennial cycle for adjustingthe relevant dollar amounts as Code of Civil Procedure Section 703.150.11 Usingthe same triennial cycle (once every three years, as specified) would appear tominimize the administrative burden of performing these adjustments for thedifferent statutory provisions.21RELATED TECHNICAL CHANGES22The Commission also recommends making the following related 26272829JAmend Sections 13101, 13152, 13200, and 13601, which prescribe thecontents of documents to be used to collect assets under different proceduresat issue in this recommendation. These sections are amended to ensure thatthe adjusted dollar amounts are used in the forms, as appropriate, and the listof adjusted dollar amounts, prepared by Judicial Council, is attached to therelevant form.9. The Commission considered which cost-of-living index to use for calculating theadjustment amounts: either the United States Bureau of Labor Statistics Consumer Price Index forAll Urban Consumers (USBLS Index) or the California Consumer Price Index (CCPI). TheCommission selected the USBLS Index because this index has been used recently for updatingdollar values in the Probate Code. See CLRC Minutes (Dec. 2017), p. 15; CLRC StaffMemorandum 2017-58, pp. 5-7.10. See proposed Prob. Code § 890.11. The dollar amounts contained in the proposed legislation will need to be updated to reflectthe cost-of-living adjustments through the end of 2018 in order to properly coordinate theadjustment schedule of proposed Probate Code Section 890 with the adjustment schedule used inCode of Civil Procedure Section 703.150.–3–
STAFF DRAFT ) August 15, 2018123456789101112JJRepeal Section 13600(e), which provides a cost-of-living adjustment of thedollar limit for collection of unpaid compensation by a surviving spouse.That provision does not assign responsibility for making the adjustment. Nordoes it provide a mechanism for publication of the adjusted amount. Therelevant dollar amounts will now be subject to adjustment and publicationunder proposed Probate Code Section 890.Amend Sections 13601 and 13602 to conform to Section 13600(d), whichspecifies that a surviving spouse of a deceased firefighter or public safetyofficer is exempt from the dollar limit for collection of unpaidcompensation.12The Commission also proposes miscellaneous technical changes to conform tostandard drafting practices, as indicated in the proposed legislation.12. See 2002 Cal. Stat. ch. 733, § 2.–4–
STAFF DRAFT ) August 15, 2018ContentsProb. Code § 890 (added). Periodic adjustment of dollar amounts . 7Prob. Code § 6602 (amended). Petition to set aside estate . 7Prob. Code § 6609 (amended). Court order to set aside estate . 8Prob. Code § 13050 (amended). Exclusions in determining property or estate of decedent orits value . 9Prob. Code § 13100 (amended). Collection or transfer of personal property without probate . 10Prob. Code § 13101 (amended). Contents of affidavit or declaration to collect or transferpersonal property without probate . 10Prob. Code § 13151 (amended). Petition for order determining succession to real property . 12Prob. Code § 13152 (amended). Contents of petition for order determining succession toreal property . 12Prob. Code § 13154 (amended). Court order determining succession to real property . 14Prob. Code § 13200 (amended). Contents of affidavit for collection of real property of smallvalue . 15Prob. Code § 13600 (amended). Authority to collect salary or other compensation . 17Prob. Code § 13601 (amended). Contents of affidavit or declaration and proof of identity tocollect salary or other compensation . 18Prob. Code § 13602 (amended). Payment of salary or other compensation by employer . 19–5–
STAFF DRAFT ) August 15, 2018–6–
STAFF DRAFT ) August 15, 2018PROPOSED LEGISLATION123456Prob. Code § 890 (added). Periodic adjustment of dollar amountsSECTION 1. Part 21 (commencing with Section 890) is added to Division 2 ofthe Probate Code, to read:PART 21. PERIODIC ADJUSTMENT OF DOLLARAMOUNTS§ 890. Periodic adjustment of dollar amounts22890. (a) On April 1, 2022, and at each three-year interval ending on April 1thereafter, the dollar amounts specified in Chapter 6 (commencing with Section6600) of Part 3 of Division 6 and in Division 8 (commencing with 13000) in effectimmediately before that date shall be adjusted as provided in subdivision (b).(b) The Judicial Council shall determine the amount of the adjustment based onthe change in the United States city average of the “Consumer Price Index for AllUrban Consumers,” as published by the United States Bureau of Labor Statistics,from the December three years prior to the adjustment to the Decemberimmediately preceding the adjustment, with each adjusted amount rounded to thenearest twenty-five dollars ( 25).(c) Beginning April 1, 2022, the Judicial Council shall, after adjusting theamounts as directed in subdivision (b), publish a list of the current dollar amountsfor the provisions identified in subdivision (a), together with the date of the nextscheduled adjustment.(d) Adjustments made under subdivision (a) do not apply when the decedent’sdeath preceded the date of adjustment.26Prob. Code § 6602 (amended). Petition to set aside 2333435Comment. Section 890 is comparable to Code of Civil Procedure Section 703.150. It providesfor periodic cost-of-living adjustments for dollar amounts contained in certain provisions of theProbate Code.SEC. 2. Section 6602 of the Probate Code is amended to read:6602. A petition may be filed under this chapter requesting an order setting asidethe decedent’s estate to the decedent’s surviving spouse and minor children, or oneor more of them, as provided in this chapter, if the net value of the decedent’sestate, over and above all liens and encumbrances at the date of death and over andabove the value of any probate homestead interest set apart out of the decedent’sestate under Section 6520, does not exceed twenty thousand dollars ( 20,000)eighty-four thousand two hundred seventy-five dollars ( 84,275), as adjustedperiodically in accordance with Section 890.–7–
STAFF DRAFT ) August 15, 2018123456Comment. Section 6602 is amended to adjust the dollar amount contained in this section. Theadjusted amount reflects cost-of-living increases since the amount was last changed. See 1976Cal. Stat. ch. 1028, § 2 (amending former Prob. Code § 640, which was the predecessor to thissection); see also 1986 Cal. Stat. ch. 783 §§ 9, 23; Recommendation Relating to Small Estate SetAside, 18 Cal. L. Revision Comm’n Reports 1101 (1986). The dollar amount is subject toperiodic cost-of-living adjustments going forward. See Section 890.7Prob. Code § 6609 (amended). Court order to set aside 31323334353637383940414243SEC. 3. Section 6609 of the Probate Code is amended to read:6609. (a) If the court determines that the net value of the decedent’s estate, overand above all liens and encumbrances at the date of death of the decedent and overand above the value of any probate homestead interest set apart out of thedecedent’s estate under Section 6520, does not exceed twenty thousand dollars( 20,000) eighty-four thousand two hundred seventy-five dollars ( 84,275), asadjusted periodically in accordance with Section 890, as of the date of thedecedent’s death, the court shall make an order under this section unless the courtdetermines that making an order under this section would be inequitable under thecircumstances of the particular case.(b) In determining whether to make an order under this section, the court shallconsider the needs of the surviving spouse and minor children, the liens andencumbrances on the property of the decedent’s estate, the claims of creditors, theneeds of the heirs or devisees of the decedent, the intent of the decedent withrespect to the property in the estate and the estate plan of the decedent asexpressed in inter vivos and testamentary transfers or by other means, and anyother relevant considerations. If the surviving spouse has remarried at the time thepetition is heard, it shall be presumed that the needs of the surviving spouse do notjustify the setting aside of the small estate, or any portion thereof, to the survivingspouse. This presumption is a presumption affecting the burden of proof.(c) Subject to subdivision (d), if the court makes an order under this section, thecourt shall assign the whole of the decedent’s estate, subject to all liens andencumbrances on property in the estate at the date of the decedent’s death, to thesurviving spouse and the minor children of the decedent, or any one or more ofthem.(d) If there are any liabilities for expenses of the last illness, funeral charges, orexpenses of administration that are unpaid at the time the court makes an orderunder this section, the court shall make such orders as are necessary so that thenecessary orders for payment of those unpaid liabilities are paid.(e) Title to property in the decedent’s estate vests absolutely in the survivingspouse, minor children, or any or all of them, as provided in the order, subject toall liens and encumbrances on property in the estate at the date of the decedent’sdeath, and there shall be no further proceedings in the administration of thedecedent’s estate unless additional property in the decedent’s estate is discovered.Comment. Section 6609 is amended to adjust the dollar amount contained in this section. Theadjusted amount reflects cost-of-living increases since the amount was last changed. See 1976–8–
STAFF DRAFT ) August 15, 201812345Cal. Stat. ch. 1028, § 3 (amending former Prob. Code § 645, which was the predecessor to thissection); see also 1986 Cal. Stat. ch. 783 §§ 9, 23; Recommendation Relating to Small Estate SetAside, 18 Cal. L. Revision Comm’n Reports 1101 (1986). The dollar amount is subject toperiodic cost-of-living adjustments going forward. See Section 890.Subdivision (d) of Section 6609 is amended to make technical changes.67Prob. Code § 13050 (amended). Exclusions in determining property or estate of decedent orits 1323334353637383940414243SEC. 4. Section 13050 of the Probate Code is amended to read:13050. (a) For the purposes of this part:(1) Any property or interest or lien thereon which that, at the time of thedecedent’s death, was held by the decedent as a joint tenant, or in which thedecedent had a life or other interest terminable upon the decedent’s death, orwhich that was held by the decedent and passed to the decedent’s surviving spousepursuant to Section 13500, shall be excluded in determining the property or estateof the decedent or its value. This excluded property shall include, but not belimited to, property in a trust revocable by the decedent during his or her lifetime.(2) A multiple-party account to which the decedent was a party at the time of thedecedent’s death shall be excluded in determining the property or estate of thedecedent or its value, whether or not all or a portion of the sums on deposit arecommunity property, to the extent that the sums on deposit belong after the deathof the decedent to a surviving party, P.O.D. payee, or beneficiary. For thepurposes of this paragraph, the terms “multiple-party account,” “party,” “P.O.D.payee,” and “beneficiary” are defined in Article 2 (commencing with Section5120) of Chapter 1 of Part 2 of Division 5.(b) For the purposes of this part, all of the following property shall be excludedin determining the property or estate of the decedent or its value:(1) Any vehicle registered under Division 3 (commencing with Section 4000) ofthe Vehicle Code or titled under Division 16.5 (commencing with Section 38000)of the Vehicle Code.(2) Any vessel numbered under Division 3.5 (commencing with Section 9840)of the Vehicle Code.(3) Any manufactured home, mobilehome, commercial coach, truck camper, orfloating home registered under Part 2 (commencing with Section 18000) ofDivision 13 of the Health and Safety Code.(c) For the purposes of this part, the value of the following property shall beexcluded in determining the value of the decedent’s property in this state:(1) Any amounts due to the decedent for services in the Armed Forces of theUnited States.(2) The amount, not exceeding fifteen thousand dollars ( 15,000) sixteenthousand three hundred twenty-five dollars ( 16,325), as adjusted periodically inaccordance with Section 890, of salary or other compensation, includingcompensation for unused vacation, owing to the decedent for personal servicesfrom any employment.–9–
STAFF DRAFT ) August 15, 201812345Comment. Section 13050 is amended to adjust the dollar amount contained in this section. Theadjusted amount reflects cost-of-living increases since the amount was last changed. See 2011Cal. Stat. ch. 117, § 3. The dollar amount is subject to periodic cost-of-living adjustments goingforward. See Section 890.Paragraph (a)(1) of Section 13050 is amended to make technical changes.6Prob. Code § 13100 (amended). Collection or transfer of personal property without probate21SEC. 5. Section 13100 of the Probate Code is amended to read:13100. Excluding the property described in Section 13050, if the gross value ofthe decedent’s real and personal property in this state does not exceed one hundredfifty thousand dollars ( 150,000) one hundred sixty-three thousand one hundredfifty dollars ( 163,150), as adjusted periodically in accordance with Section 890,and if 40 days have elapsed since the death of the decedent, the successor of thedecedent may, without procuring letters of administration or awaiting probate ofthe will, do any of the following with respect to one or more particular items ofproperty:(a) Collect any particular item of property that is money due the decedent.(b) Receive any particular item of property that is tangible personal property ofthe decedent.(c) Have any particular item of property that is evidence of a debt, obligation,interest, right, security, or chose in action belonging to the decedent transferred,whether or not secured by a lien on real property.2627Prob. Code § 13101 (amended). Contents of affidavit or declaration to collect or transferpersonal property without 333435363738394041Comment. Section 13100 is amended to adjust the dollar amount contained in this section.The adjusted amount reflects cost-of-living increases since the amount was last changed. See2011 Cal. Stat. ch. 117, § 4. This dollar amount is subject to periodic cost-of-living adjustmentsgoing forward. See Section 890.SEC. 6. Section 13101 of the Probate Code is amended to read:13101. (a) To collect money, receive tangible personal property, or haveevidences of a debt, obligat
This study addresses Probate Code provisions that provide procedures for the disposition of a small estate or portion of an estate without probate . See id. § 13006. STAFF DRAFT ) 15, 2018 August - 2 - 1 decedent's successor5 if the gross value of the decedent's real and personal
