When a loved one passes away, one of the first practical steps that should be taken is to search for the decedent’s Last Will and Testament. What happens though if you cannot find a Will? Surveys indicate that over half of all Americans do not have even a basic estate plan in place, making it equally likely that your loved one did not execute a Will prior to his/her death. If that is the case, it means that he/she died “intestate” which is a legal term meaning without a Will. When a decedent leaves behind an intestate estate, the California rules of intestacy determine what happens to the decedent’s estate assets.
Who Oversees the Probate of an Intestate Estate?
A “testate” estate refers to the estate of a Testator who did leave behind a valid Last Will and Testament upon death. An “intestate” estate refers to the estate of someone who did not execute a Will prior to death. The “Executor” is the person named by the Testator in his/her Will to oversee the probate of the estate. If a decedent dies intestate, any adult can volunteer to oversee the probate process, subject to court approval, and is referred to as the “Administrator.” For the most part, an Executor and Administrator perform the same duties and have the same responsibilities during the probate of an estate.
What Is Included in an Intestate Estate?
A decedent’s estate includes all assets, tangible and intangible, that the decedent owned, or in which the decedent had an ownership interest, at the time of death. Not all of those assets, however, may be probate assets. Assets are categorized as probate or non-probate assets and only probate assets are required to go through the probate process. Non-probate assets bypass probate and can be distributed to the intended beneficiaries and/or legal heirs right away. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Assets held in accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Funds held in certain retirement or pension accounts
Who Inherits under the California Rules of Intestacy?
When a decedent leaves behind an intestate estate, the California intestate succession laws dictate what happens to the decedent’s assets. Those laws dictate that the estate assets be distributed as follows if the decedent left behind:
- Children but no spouse – children inherit the entire estate
- Spouse but no children, parents, siblings, or nieces or nephews – spouse inherits the entire estate
- Parents, but no children, spouse, or siblings – parents inherit the entire estate
- Siblings, but no children, spouse, or parents – siblings inherit the entire estate
- Spouse and one child or grandchild — spouse inherits all community property and 1/2 of separate property
- Spouse and two or more children — spouse inherits all community property and 1/3 of separate property and the children inherit 2/3 of separate property
- Spouse and one child and one or more grandchildren from a deceased child — spouse inherits all community property and 1/3 of separate property and children inherit 2/3 of separate property
- Spouse and two or more grandchildren from a deceased child — spouse inherits 1/3 of separate property and children inherit 2/3 of separate property
- Spouse and parents — spouse inherits all community property and 1/2 of separate property and parents inherit 1/2 of separate property
- Spouse and siblings, but no parents — spouse inherits all community property and 1/2 of separate property and siblings inherit 1/2 of separate property
In the event that the decedent did not leave behind any of the above-referenced surviving relatives, the law looks for more distant relatives to inherit the estate. If no survivors can be identified, the estate may eventually escheat to the State of California, meaning the state effectively inherits the estate assets – one of many reasons to not leave behind an intestate estate.
Contact Us
Please download our FREE estate planning checklist. If you have additional questions about the California rules of intestacy, contact us at the Northern California Center for Estate Planning & Elder Law today by calling (916)-437-3500 or by filling out our online contact form.
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