If you want your estate to be protected for your loved ones, as nearly everyone does, then you must have an estate plan. Without estate planning, your family will likely face overwhelming tax burdens, as well as other unwanted consequences. You may also be leaving many of the decisions regarding your estate to the court instead of making them yourself. But, with the help of one of our Los Angeles estate planning lawyers, you can create the perfect plan.
Estate planning allows your assets go to your intended beneficiaries
Possibly the most basic reason for having an estate plan is to keep your property from ending up with someone you don’t want to have it. The reality is, if you don’t make the decision now about who should receive your assets, the court will do it for you. The primary purpose of an estate plan is to designate which of your heirs should receive which assets. If the court is required to do this for you, it can take years to complete and often leads to ugly family disputes.
What happens if you die without a will or estate plan?
When a person dies without a will, there are specific laws in each state that address the disposition of that person’s assets to their spouse and/or heirs. These laws include laws of descent and distribution and marital rights in the estate, which apply to a surviving spouse. Collectively, these laws are referred to as the laws of intestate succession.
Generally speaking, if you die without a will in California, your assets will go to your closest relatives. 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. 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 Spouse’s share in California
Also 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 exceptions: gifts and inheritances which are given to one spouse are considered separate property, even if acquired during the marriage. But, what happens if both you and your spouse die at, or near, the same time?
What does “simultaneous death” mean for your estate plan?
When it comes to estate planning and inheritances, “simultaneous death” refers to the situation where two people die at the same time, or very nearly at the same time, and one is entitled to a portion of the other’s estate. Unfortunately, this situation most commonly occurs as a result of an accident, homicide or murder-suicide.
What happens in cases of simultaneous death in Los Angeles?
Our Los Angeles estate planning lawyers understand what happens when a simultaneous death occurs involving Los Angeles residents. Typically, when there is any evidence at all that one party survived the other, even by just a few minutes, then the estates would be distributed in that order. However, California Probate Code provides that if it cannot be established by “clear and convincing evidence” that one person survived the other, then the property of each person is distributed as if that person had survived the other.
The Uniform Simultaneous Death Act
The Uniform Simultaneous Death Act is a uniform act that has been passed in some states to alleviate the problems that result from simultaneous death. According to the Act, if two or more people die within 120 hours of one another, and there is no will or other estate planning document that specifically addresses this situation, then each person is considered to have predeceased the other. This is true unless the end result would be an intestate estate escheating to the state. In other words, the 120-hour rule does not apply if the estate would end up in the hands of the state. California has not adopted the Uniform Simultaneous Death Act.
How to get around the problem of simultaneous death
It is a good idea to include provisions in your estate plan that will address the possibility of simultaneous death. Our Los Angeles estate planning lawyers can help with this task. In many cases, a simple clause in a will indicating that your property be distributed as though each person had predeceased the other.
If you have questions regarding simultaneous death, or any other estate planning issues, please contact the Los Angeles estate planning lawyers at the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.