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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
.
These Articles are
to give the reader a general description of certain areas of the law. Legal
advice is necessary to apply these legal concepts to your particular
situation. The Reader should obtain competent legal advice before
relying on the Articles.
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