One of the purposes of estate planning is to prepare for our deaths. One reason a probate lawyer needs to know about the probate code is to understand the laws of intestate succession. These laws 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 our estate planning lawyers think you need to know about intestate succession.
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 all community property, but not all separate 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.
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 your children. 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 generally the property that is acquired while a couple is married through the efforts of either spouse. On the other hand, separate property is the property each individual acquired before marriage. There are two common exceptions: gifts and inheritances which are given to one spouse are considered separate property, even if acquired during the marriage.
If you and your spouse are not divorced, but legally separated (not just living separately), at the time of your death, your spouse will not be entitled to any of your property. In California, the rules for married couples also apply to registered domestic partners. If you have questions about the spouse’s share, let us know.
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.
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. We can explain what happens with the settling of the estate.
The danger of thinking you don’t need a will.
Many clients who have only a few possessions, but do not own a home or vehicle, believe they have no reason to create a will. 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 will, the state will make all of these decisions for you.
Download our FREE estate planning checklist today! If you have questions regarding intestate succession or any other estate planning matters, please contact us at the Northern California Center for Estate Planning and Elder Law for a consultation. You can contact us either online or by calling us at (916) 437-3500. We are here to help!
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