Tag Archives: Intestate

Dying without a Will in California

If a resident of California passes away without having an executing a will or revocable living trust, California has an entire set of laws in the Probate Code, known as “intestacy” to determine who will get your estate. The intestate laws have a series of questions to be answered do determine who can inherit the estate.

Whether or not the person is married is the first major question.

Persons Not Married At Death (Includes Single Persons, Divorced Persons, and Widows/Widowers)

If the person was not married the estate is inherited as follows:

1. If there were children in the same generation, they take equal shares of the estate.

2. If there were no children, grandchildren, great-grandchildren, etc; then the estate will be inherited by the parents of the deceased.

3. If the deceased does not have any living parents then the estate is given to the brothers or sisters of the deceased. If the brothers or sisters have passed away and had an “issue,” the issue will be able to inherit whatever amount would have been inherited if the brother or sister had been alive.

4. If there are no brothers or sisters the grandparents shall inherit the estate of the deceased.

5. If there are no living grandparents, the issue of the grandparents shall inherit the estate. This may entail the deceased aunts or uncles, and if there are no aunts or uncles then the decedent’s cousins may be entitled to the estate.

6. If there are no cousins then according to the Probate Code 6402, the estate shall be given to the next of kin in equal degree.

Persons Who Are Married At Death

If the person was married at death, then there are two sets of questions to ask to determine who will get that person’s estate.

First, the main question is whether the deceased owned community property, separate property or a mix of both types of property. A simple definition of community property is the assets and earnings that the deceased had earned during the time of the marriage and the separate property is the assets that were brought into the marriage in the beginning.  California has very diverse definitions of these and separate property and community properties may be intertwined and mixed together to provide some benefits. The following are the steps and rules that are to be followed;

1. The community property of the deceased shall go to the spouse, once a spousal property petition is established.

2. The separate property of the deceased shall be distributed as follows;

A. The spouse is entitled to the separate property if the deceased is not survived by parents, brothers or sisters, or children of a brother or sister that have passed away.

B. The spouse is entitled to half of the separate property if the deceased had only one child or had an issue of a child that had passed away.

C. The spouse is entitled to half of the separate property if the deceased had left no issue, but had left parents or an issue of the parents.

D. The spouse is entitled to one third of the separate property if the deceased had left more than one child.

E. The spouse is entitled to one third of the separate property if the deceased had left one child and the issue of one or more children.

F. The spouse is entitled to one third of the separate property if the deceased had left two or more issues of children.

These are the default rules if you do not have a will or revocable living trust in place. The intestacy laws show how important a will can be if you want your estate to go to people who are not listed in article (i.e., non-spouses, friends, distant relatives). Please contact Attorney Anthony Marinaccio at 818-839-5220 for more information.

Estate Planning for Childless Couples

The Wall Street Journal recently had an article entitled “Estate Planning for Childless Couples” that emphasizes the importance of different estate planning tools for your personal situation. I often tell people who do not have children that estate planning may have even more important repercussions for them than people with children because if you die without a will, the State of California decides who will inherit your estate through intestacy laws.

If you die without a will, you are said to have died “intestate.” The Probate Code sets forth who would receive your estate. If you die without a will only family members will be able to inherit (even long lost ones). Therefore, it is sometimes more important for persons without children to have an estate plan.

The Wall Street Journal article highlights why having a plan is important particularly if you want to leave your estate to close friends or a charity. Both categories would not receive anything if you die without a will. It would also be important to create a revocable living trust for the same reasons anyone should – namely to avoid probate.

It is also very important for childless couples to address a power of attorney and advanced healthcare directive because without one, decisions that need to be made if you are incapacitated will most likely be left to strangers.

For these reasons a couple that does not have any children should address all of these issues in their estate plan. Attorney Anthony Marinaccio can properly advise you for your particular situation if you have any questions or concerns. Please contact him at (818) 839-5220. 

Why Hiring an Attorney Can Save You Money on Your Estate Plan

Forbes has an interesting article, Careful, Thoughtful Drafting Essential in Estate PlanningIt provides an interesting glimpse into do-it-yourself estate plans with the advice of an attorney.

In California, a person can draft their own will in their own handwriting and can even draft a “statutory will” that is a fill-in-the blanks will (there are certain rules and exceptions to drafting your own wills). However, the advice of an attorney can be essential in drafting important documents to ensure property gets passed on properly to the people you want.

If a will is found to be invalid, California’ intestacy laws will apply, which may go against your original wishes. The article highlights the issue of leaving a blank on a form will and how it can cause a large problem. In this case, an heir died prior to the will drafter causing a dispute between the deceased’s brother and her nieces from another brother. There was also an issue of a handwritten codicil, or amendment to a will.

If the parties had spoken to an attorney when drafting their estate planning documents, they could have saved money and time that occurred during the legal dispute to determine who would receive the estate. The article highlights why spending a little money upfront can save significant legal bills in the future.