You might be surprised to learn that, as common as a will may be, many people do not have a will in place when they die. Wills are invaluable tools in estate planning which allow you to determine exactly how you want your property to be distributed after your death. If you do not have a will, then your estate will be distributed according to the law in your state. The concept of dying without a will is referred to as “intestate succession.”
What is “intestate succession?”
Dying “intestate” means dying without a will. Every state has its own set of laws and rules regarding how to handle a person’s estate if they die without a will. These laws typically address which descendants are in line to receive your property, who has priority, and the rights that your spouse would have to your estate. These laws are known as the laws of intestate succession. In California, if you die without a will, your assets will go to your closest relatives.
Distribution of your estate in California
If you die with a surviving spouse, but no children, parents or siblings, your spouse will inherit everything. If you have a spouse and children who survived you, the spouse will inherit all of your community property and a portion of your separate property. Your children will also inherit a portion of your separate property.
If 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. It would be the same if only your spouse and siblings survive you.
If you die with surviving children and no spouse, your children will inherit everything. Your parents are next in line and then your siblings.
What is Community Property
In community property states, property purchased during the marriage, as well as money earned by each spouse, is considered community property. That means the property is owned equally by both spouses. The same is true for debts that are incurred during the marriage – they are considered the debts of the couple. Upon the death of one spouse, all community property now belongs to the surviving spouse. The only exception would be if there was a will that instructed otherwise.
California couples can have separate ownership
However, married couples can still have separate ownership in property. On the other hand, separate property is the property each individual acquired before marriage. There are two exceptions: gifts and inheritances which are given to one spouse are considered separate property, even if acquired during marriage.
How many states are community property states?
There are currently nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska is unique in that it allows couples the option to make their property community property. So, Alaska is considered an opt-in community property state.
Child heirs and their intestate shares
The portion of each child’s intestate share of your estate depends on two factors: (1) how many children survive you, and (2) whether you have a surviving spouse. In California, a child can only inherit from you through intestate succession if they are your biological children, adopted children, or children conceived by you, but not born prior to your death (posthumous children).
Some children do not inherit automatically
Foster children and stepchildren who have not been legally adopted, do not automatically receive a share. In some cases, a foster child or stepchild can still inherit if the following can be proven:
- your relationship with the child 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.
If you have a child that was legally adopted by another family (not your spouse, that child does not receive a share of your estate. A child who was born outside of your marriage may receive a share if they can prove that you acknowledged them and contributed to their care and support.
Miscellaneous California rules
Here are a few intestate inheritance rules that may apply to your situation:
- California has a “survivorship period,” which requires that the person who inherits must outlive you by 120 hours.
- “Half” relatives inherit from your estate as if they were “whole.”
- Relatives who are conceived before but born after your death still inherit.
- Citizenship or immigration status does not affect rights of inheritance.
- California’s “slayer rule” says that someone who “feloniously and intentionally” kills you will not receive a share of your property.
If you have questions regarding intestate succession, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696. Join us for a free seminar!
Latest posts by Scott Schomer, Estate Planning Attorney (see all)
- What is a Pet Trust and Why Would I Need One? - March 24, 2019
- What Are the Most Important Things I Need to Know About Estate Planning? - March 23, 2019
- What is an Asset Protection Trust? - March 22, 2019