The term “intestate succession” is used by legal professionals and court systems to describe the process of distributing a person’s assets if they die without a will or trust in place. This process takes place in probate courts and can become a tremendous expense for heirs and beneficiaries in terms of time, energy and money.
It is always best to have some type of will or trust in place, clearly expressing your wishes about how all of your assets (money, investments, property, collectibles, sentimental items, etc.) get distributed after you die. Ultimately, with intestate succession, the state makes all the decisions according to a stringent inheritance structure, which may not align with your preferred choices or what you verbally expressed to loved ones when you were alive.
How Does California Divide Assets Without a Will?
If your loved one recently died without a will, we highly advise looking for an experienced probate attorney to guide you through the intestate succession process. The small investment you make can save invaluable time, energy, and unnecessary estate fees or taxes that could apply otherwise.
It’s important to understand that California’s intestate succession laws differ from other states because each state has its own probate laws. Also, knowing a bit about California law may also surprise you when it comes to who gets what if your loved one dies without a will or trust in place – especially if you have a divorced or blended family (more on that below).
Intestate laws are complex, so we will highlight some of the clearest and most common ways a person’s assets get distributed by a probate court.
Creating a Basic Will Is Easy & Protects You From Intestate Succession
Estate planning does not have to be complicated. In fact, for many people – especially those without amassed wealth or long lists of properties and assets – a complete will or trust can be established in just one or two sessions with an estate attorney. A bit of preparation on your end and a small investment in a session or two is all it takes to protect your estate from landing in the hands of the wrong person or people.
Types of Assets Excluded From Intestate Succession Laws
There are some exceptions about which assets are not included in probate. These include:
- Any assets already accounted for in legal trust documents.
- Life insurance benefits with a named beneficiary.
- Any financial accounts (checking, savings, retirement, investment, etc. with a named beneficiary or “payable on death (POD)” recipient(s).
- Securities held in a “transfer on death” account.
- Jointly owned property.
- Anything that falls into California’s community property laws (a living spouse inherits everything that isn’t stated otherwise in POD or “transfer on death” accounts).
Order of Inheritance Relies on Familial Relationship
Judges and attorneys in the California probate courts honor community property laws first and then move down a succession of heirs that rank in terms of the family tree and descendent categories.
A surviving spouse inherits all (in most cases)
Again, outside of any assets that fall into the above bullet points, a surviving spouse inherits the entirety of their deceased spouse’s estate. This is because California is a “community property state.” Once two people are legally married, any income, assets, or other valuable interests are shared 50/50. If there is no prenuptial agreement in place, and the deceased person never created a last will and testament or a detailed trust, this may also include the entire roster of separate property (assets that fall outside of the community property clause).
This can be very complicated if it’s a second marriage or a blended family where children and/or step-children are involved, especially if children from the previous marriage feel entitled to assets now assigned to their step-parent. If you are divorced and remarried, it is essential that you protect your interests and preferences by creating your will. It’s one of the best gifts you can give to your loved ones because it almost eliminates any ability to successfully contest your wishes.
Children are the next to inherit
Without a living spouse, children are the next to inherit in most probate proceedings. There are a few things worth noting here:
- The court does not distinguish between present and estranged children. The son you have dinner with every week is viewed as equally entitled to your estate as the daughter you haven’t seen in years.
- A person’s biological and adopted children are viewed equally. However, an adopted child is not considered an heir to their biological parent’s estate unless they were named in a will, trust, or POD/TOD account.
- Children and step-children are often held equally. Another fact that may surprise you is that the court recognizes step-children as equally entitled to a share of the assets in certain cases. For this to happen, it must be proven that the child came into the step-parent’s life as a minor and maintained a continuous relationship with the deceased through their lifetime.
- Foster children may be viewed as beneficiaries. As with step-children, the court often recognizes a foster child’s right to an inheritance if they maintained a relationship with the deceased foster parent through their lifetime and that the foster parent would have adopted the child if it were legally possible.
- Any child born before wedlock is considered an heir in most cases. It must be proven the decedent knew of the child’s existence and participated in their cost of care as a minor.
- A biological child(ren) born after the decedent’s death is considered heirs. This is the case when a father dies during the pregnancy or in cases where children are born using IVF.
It’s also worth noting that grandchildren may inherit their parent’s portion of the estate if the descendant’s child (the grandchild’s parent) died before their parent.
Parents are third in the succession lineup
If you die without a spouse or child, but a parent is still alive, your parent inherits the entirety of the estate. Just as estranged children are viewed equally as the children present in your life, estranged parents are viewed equally as parents who are present.
We have seen absolutely heartbreaking cases where a person died without a legal will and a parent who is an addict, inflicted serious trauma on the child(ren), or abandoned the family and inherited everything while siblings and beloved family friends stand by in horror. Again
If you die without a will in California and you have no spouse or living parent, the court moves on to siblings. This is another area where things can get messy, especially in families where siblings do not necessarily get along. Worse, we’ve also seen situations where siblings who are quite close wind up in arguments so heated and damaging that close bonds are severed.
How does the court determine percentages of an estate?
While there are exceptions, the courts stick to fairly flat and even asset distributions. So, for example, if you die:
- Without a spouse or any other heirs: assets become the property of the estate (this is after probate professionals seek far and wide for cousins, nieces, nephews, etc.).
- With no spouse but three children: the estate is evenly divided between the children.
- Spouse and one child or children: spouse inherits all community property and 50% of separate property. The rest of the separate property is evenly divided between children.
This list could go on and on. However, the court makes the final decisions about who your assets transfer to and in what percentage of the total.
Avoid California Intestate Succession
Creating a legally valid last will and testament or thoughtfully prepared trust is the only sure way to avoid California intestate succession if your assets stretch beyond POD, TOD, or accounts with clearly stated beneficiaries. Tseng Law Firm is here to walk you through the process. Contact us to schedule a free consultation and learn more about how our services can support your lasting testament.