Intestate Succession in California or What Happens If You Die Without a Will or Trust

INTRODUCTION:

Dying without a will is termed dying “intestate” legally and when that occurs the laws of the State allocate who is to inherit what from you…and if you die without relations, the State of California can obtain all your assets by the process known as “escheat.”   As one client put it after a meeting in which we discussed the effect of intestate succession in California, “If more people knew how stupid the laws of intestate inheritance was, they’d all sign wills.”

The laws are not complex and this outline will indicate to you what happens if you die without a valid Will and/or Trust.

 

BASIC LAW OF INTESTATE SUCCESSION IN CALIFORNIA:

Intestate succession provides as follows under state statute:

         1.  The first question is whether the decedent (the person who died) was married.

              A.      If the decedent was not married, the estate is distributed as follows:

1.       To the decedent's children, who take in equal shares if they are in the same generation.

2.       If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents.

3.       If there are no parents living, the estate is distributed to the "issue of the parents."  If the decedent had brothers or sisters, they will inherit the estate.

4.       If there are no brothers or sisters, the decedent's grandparents will inherit the estate.

5.       If there are no grandparents, then the "issue of the grandparents" will inherit the estate.  This could include the decedent's aunts and uncles, or if there are no aunts and uncles, the decedent's cousins.

6.       If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to "next of kin in equal degree," generally meaning more distant cousins.

              B.  If the decedent was married, the first question is whether the decedent owned community property, separate property, or a combination of the two. Community property is generally defined as the assets acquired during marriage from earnings or salary. Separate property is generally defined as assets brought into the marriage when the decedent married, inheritances to the decedent, or gifts to the decedent.  (California case law provides many exceptions to these definitions, and assets can change from community to separate property, or from separate to community, by combining assets, by improving separate property with community property, or by written agreement of the spouses, for example.)

Check with a lawyer as to your particular assets before making any important decisions.

                   1.  The decedent's community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership.

                   2.  The decedent's separate property is distributed as follows:

                            a. The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or

                                sister.

                            b. The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.

                            c. The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.

                            d. The surviving spouse receives only one-third of the separate property if the decedent left more than one child.

                            e. The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.

                            f. The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.

If no spouse or kin can be located, the estate is transferred, in whole, to the State of California for its own use.

Note that all of the above considerations are irrelevant if the decedent had a will or living trust. The reader is invited to review the web articles on Wills and Trusts for a full description of how those alter the above set procedures