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It is estimated that 4 out of 10 Americans have no will or other estate planning document like a living trust.
It is crucial for those who own valuable assets like real estate and especially important for adults with children, to have a legal document that spells out instructions for the distribution of their property as well as custody of their children.
But what happens if you die without a will in the state of California? Who gets your property, and who makes this decision? Here are several things you should know.
When you die without a will (or other estate planning document), you die “intestate.” In other words, state law decides how your property is to be distributed regardless of your wishes. In some cases, the state can even take some of what you own.
The court’s decisions may cause conflicts of interest among family members and other people involved — but it does not matter, without a will, the state will act in accordance with the law.
When distributing property, the state will look at your next of kin. This would include your spouse, children, and surviving family members.
If the decedent is survived by a living spouse and has no dependents or other living relatives like brothers and sisters, the spouse receives all of your property.
If the decedent is survived by a living spouse and has dependents, the state will distribute property to your spouse and children.
The property gets distributed according to the number of children you have. For example, if you only have one child, ½ of your property goes to your spouse and the other ½ goes to your child. If you have more than one child, the state will distribute property according to each person’s fair share.
Not all property is subject to California’s intestate laws. If the person did create a trust, any property held within it would be excluded from probate. Other exceptions to this rule may include retirement accounts or other plans with named beneficiaries.
However, with no will, the state will consider the following, including whether the decedent owned separate property, community property, or both.
Separate property, or non-martial property, usually refers to anything you acquired before marriage but not always. For example, inheriting property during the marriage or anything you purchased with separate funds may be considered separate property. Also, any income you received from the separate property would be included. Nevertheless, state laws on what is deemed to be “separate” versus “community” property will vary.
Community property, or marital property, is anything acquired during the marriage that doesn’t fit under the “separate property” category. Such property may include a home you purchased with your spouse and other assets such as joint bank accounts, furniture, and other items. Once again, state laws will vary on what is “separate” and what is “community.”
If married without children or any other surviving relatives, the state will distribute all separate property to the spouse. But if you have children or other relatives, the surviving spouse may receive ½ or less depending on the number of children and/or relatives that are still around.
This is how separate property distribution works out under two scenarios: with spouse and without a spouse.
Surviving children only
Children receive all property and distributed evenly among them
|Surviving parents with no children or siblings||Parents receive all property|
|Surviving siblings but no children or living parents||Siblings receive all property|
|Surviving spouse but no children or other surviving relatives including, siblings, and parents||The spouse receives all separate and community property|
|Surviving Spouse with only one child (or grandchild)||The spouse receives all community property and ½ of separate property. The child or grandchild receives ½ of separate property.|
|Surviving Spouse with more than one child||The spouse receives all community property and ⅓ of the separate property. Remaining separate property is distributed among the children.|
Similar distribution models can take place when there are a spouse and other relatives that are not children.
For example, a person who has a spouse and surviving siblings but no children would have their separate property divided among the spouse and siblings. The spouse usually gets all community property and ⅓ of separate property. Children and other relatives like siblings and parents are only entitled to the decedent’s separate property. Grandchildren would also be included in these cases.
While dying without a will, or dying “intestate,” still means that your family members and spouse receive your property under the law, it may not always be the case. For example, even though your spouse may be entitled to community property, he or she still has to prove ownership.
It’s not difficult to see that things can become very complicated. But one thing is quite clear: when you don’t have a plan, you allow a government entity to take control of what you own. Most of us don’t want to let someone else make our decisions, but that’s exactly what happens when you don’t have a will.
Make sure you establish an estate plan that honors your wishes by speaking to an estate planning attorney who can help you devise an effective strategy. Still, have more questions?
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