California Estate Planning: What Happens if You Die Without a Will?

Jun 20

, Carroll Law Office

Do you need a will? According to one survey, as much as 64% of Americans don’t have one. Yet, if a person dies without a will (that is, intestate), their money and assets are distributed according to the probate laws of their state. Such distribution is called a probate process and is overseen by a judge.

However, having one’s wealth divided and distributed through the probate process has some major downsides. First, it is usually lengthy, which means that the surviving relatives are often unable to access the assets of their deceased family member for an extended period of time. If that person was one of the household’s key economic providers, it may put the family through great financial and emotional stress. On the other hand, in the probate process, a person’s wealth may be distributed contrary to their wishes and in a way that does not reflect their relations with their relatives.

How exactly, then, are a person’s money, assets, and possessions divided among their relatives if they die without a will? In this blog post, we will explore the basics of California intestate succession laws.

Community Property vs. Separate Property

The law makes a distinction between community property and separate property in a marriage. Community property is what was acquired during the time of the marriage. Separate property refers to what was acquired before the marriage, as well as personal gifts, inheritance, and property acquired after a couple has separated. Moreover, property bought for separate property funds is also considered separate property.

If Legally Married at the Time of Death…

If the deceased person is survived by both the spouse and the children, the spouse will inherit all of the community property and ½ or ⅓ of the separate property—depending on the number of children—while the rest will be inherited by the surviving children or their issues (that is, lawful descendants).

If the deceased person is survived by the spouse and there are no surviving children or their issues, the spouse will inherit all of the community property and ½ of the separate property. The other half of the separate property will be awarded to the closest living relatives of the decedent, in the following order:

• Parents
• Siblings (if the parents are deceased)
• Siblings’ children (if the siblings had died before the decedent)
• Grandparents (if neither parents, siblings, or siblings’ children have survived the decedent)

If the spouse is the only surviving relative of the decedent, she will inherit both the community property and all of the deceased person’s separate property.

If Not Married at the Time of Death…

If the decedent wasn’t married, all of their property will be divided into equal parts between the surviving issues of the same generation—such as children, grandchildren, great-grandchildren, and so on. A number of additional inheritance succession rules govern the probate process if there are no surviving issues.

Minor Children in the Intestate Estate…

If no will has been drawn and the deceased is not survived by the spouse, there is usually no nominated guardian to take care of the surviving minor children. In this case, a judge will decide who will become the guardian of the decedent’s children. In most cases, a court will appoint grandparents as legal guardians of the children. If grandparents have died, however, the court will appoint one of the closest living relatives—the one who, in the court’s opinion, is the best suited for the role.

Contact Carroll Law Office for Assistance Today!

If your loved one died without a will and an estate plan in place, it is likely that you need legal assistance to settle the estate. At Carroll Law Office, a team of experienced and reliable attorneys will answer your questions and help you solve any legal issues related to the intestate succession you may be having. Please contact us today to schedule a free consultation on your case.