One of the purposes of estate planning is to prepare for your death and avoid intestate succession. The laws of intestate succession determine who gets what if you die without a will. In general terms, if you die without a will in California, your assets will go to your closest relatives. Here is what intestate succession is and how you can avoid it.
California’s Laws of Intestate Succession
If you die with surviving children, but no spouse, parents or siblings, your children will inherit everything in your estate. If you die with a surviving spouse, but no children, parents or siblings, then your spouse inherits everything. Your parents are next in line, meaning, if you have no surviving spouse, children or siblings, they will inherit. The same is true, if only siblings survive you.
If you leave a spouse and children behind, your spouse inherits all of your community property and one-half or one-third of your separate property depending on the number of children you have. Your children inherit one-half or two-thirds of your separate property.
If your spouse survives you, but you have no children, and your parents are still alive, your spouse inherits all of your community property and one-half of your separate property; while your parents inherit the remaining half of your separate property. The same division would apply if only your spouse and siblings survive you. There are a few caveats to the intestate succession laws.
The Spouse’s Share of your estate
In California, if you are married and you die without a will, the share your spouse receives, depends on whether you owned your property as separate property or community property. Community property is the property that is acquired while a couple is married. On the other hand, separate property is the property each individual acquired before marriage. There are two more exceptions: gifts and inheritances which are given to one spouse are considered separate property, even if acquired during marriage.
If you and your spouse are not divorced, but legally separated, at the time of your death, you your spouse will not be entitled to any of your property. In California, the rules for married couples also apply to registered domestic partners.
Children’s shares of a parent’s estate
The size of each child’s intestate share of your estate depends on how many children survive you, and whether or not you have a surviving spouse. In order for children to inherit, in California, they must be legal children, which includes biological children, adopted children, and children conceived by you, but not born before your death (posthumous children).
Foster children and stepchildren, whom you did not legally adopt, do not automatically receive a share. However, a foster child or stepchild can inherit if he or she can prove that your relationship began while the child was a minor and continued throughout your lifetimes, and you would have adopted the child if it had been legally possible.
Using wills and trusts to avoid intestate succession
Regardless of how old you are and how much money you may have, it is important to prepare yourself and your family for the chance that you may become incapacitated. You must also prepare for your inevitable death. Estate planning is the way to accomplish that. Wills and trusts are just two of the basic tools that can be used in your estate plan. Your estate plan needs to be customized to fit your unique goals and the future desires you have for your family.
Why planning ahead is important
Planning ahead is very important for several reasons. First, having a plan gives you a way to decide who you want to inherit your property when you die. You get to make that decision now. Second, through wills and trusts and other estate planning tools you have the chance to reduce estate taxes and probate fees as much as you can. Finally, in the event you ever become debilitated in some way, even if it is only temporary, your estate plan can provide a way for your family to take over managing your financial and medical matters, if necessary.
Wills and trusts have their own advantages and disadvantages
Both wills and trusts have their own pros and cons, depending on the needs of the client. A will gives you a way to name a guardian for your minor children, but a trust does not. A will can also identify funeral arrangements while a trust does not. However, a trust can be used to plan for disability and provide savings on taxes.
Download our FREE estate planning checklist! If you have questions regarding intestate succession, or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.