Although a will is one of the most common estate planning tools, not everyone has when they die. With a will, individuals are able to establish exactly how they want their estate to be distributed upon their death. Without a will, however, an individual has no control over the distribution of their property. Instead, their estate will be divided up according to the laws of intestate succession in their state. In order to understand how these laws work, you should discuss it with your Los Angeles probate attorney.
What is “intestate succession?”
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.
As a Los Angeles probate attorney will tell you, if you die without a will in California, your assets will go to your closest relatives. 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. 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. 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
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 marriage.
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. Discuss these issues with a Los Angeles probate attorney.
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).
“Children” who do not inherit automatically
Foster children and stepchildren, whom you never legally adopted, do not automatically receive a share. However, a foster child or stepchild can inherit if he or she can prove that:
- 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.
A child who has been placed for adoption and legally adopted by another family will not receive a share of your estate. This does not include biological children adopted by your spouse. Children born outside of marriage, may receive a share if they prove that you acknowledged them and contributed to their support.
Other California Intestate Succession Rules
California has what is known as a “survivorship period,” which means a person must outlive you by 120 hours in order to inherit. “Half” relatives inherit from your estate as if they were “whole.” Relatives who are conceived before your death, but born after, still inherit as if they had been born while you were alive. Citizenship or immigration status does not affect rights of inheritance. Finally, 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.
Latest posts by Scott Schomer, Estate Planning Attorney (see all)
- What are the Advantages and Disadvantages of a Living Trust? - January 15, 2019
- Why Avoid Probate? - January 10, 2019
- When Do I Need a Tax ID Number for a Trust? - January 9, 2019