One of the purposes of estate planning is to obtain control over the disposition of our worldly positions after our passing. By doing so, we can avoid the laws of intestate succession. These laws determine who gets what if you die without a will or trust. In general terms, dying intestate in California means your assets will go to your closest relatives. Here is what intestate succession means for your estate.
Basics of California’s intestate succession laws
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 that is community property. 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.
Spouse and children
If you leave a spouse and children behind, your spouse inherits all of your community property and one-half (if one chlld) or one-third (if two or more children) of your separate property. Your children inherit the other one-half or two-thirds of your separate property.
Spouse, but no children
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.
Community property in California
In California, if you are married and you die without a will or trust, the share your spouse receives, depends on whether you owned your property as separate property or community property. Community property is generally the property that is acquired while a couple is married. On the other hand, separate property is the property each individual acquired before marriage that has not been commingled. There are two basic exceptions: gifts and inheritances which are given to one spouse are considered separate property if not commingled, even if acquired during marriage.
Why you definitely need a will or trust
Many clients who have only a few possession, but do not own a home or vehicle, believe they have no reason to create a will or trust. What many clients fail to consider are the personal possessions that may have sentimental value. For instance, who do you want to get your family heirlooms, your wedding ring, your family photos? Something else to consider if you have children is who should be their guardian if you die while they are still minors. The same is true for your pets. If you die without a valid will or trust, the state will make all of these decisions for you.
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 legally recognized children, which includes biological children, adopted children, and children conceived by you, but not born before your death (posthumous children).
Different child statuses
Foster children and stepchildren, whom you did not legally adopt, do not automatically receive a share. However, a foster child or stepchild can often inherit if he or she can successfully 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.
What does into settling the estate
The final step in the probate process is closing the estate. This step involves submitting an accounting of all transactions taken by the personal representative with regard to the estate. The personal representative will file a petition with the court which summarizes the estate and reports all actions taken. The petition should also specify the fees owed to the personal representative and the estate attorney, if applicable. If there are no objections to the accounting and the court approves it, then an order will be entered by the court concluding the estate. After approval has been obtained, the personal representative can distribute the remaining assets to heirs.
If you have questions regarding dying intestate, 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.
- The Consequences of Not Having an Estate Plan - March 23, 2023
- Estate Planning for Same-Sex Couples: Key Considerations - March 21, 2023
- The Role of Trusts in Estate Planning - March 19, 2023
