If you die without a will, it means you have died “intestate”. Dying without a will in California means the state gets to determine how assets are divvied up after the person passes away. This includes any bank accounts, securities, real estate, and other assets you own at the time of death.

Real estate owned in a different state than where you resided will be handled under the intestacy laws of the state where the property is located. If the decedent is not a California resident but just owns real estate there, the California Probate Code intestacy succession laws dictate who inherits the belongings.

Having a last will and testament ensures that things are divided according to the deceased’s wishes. But if there is no will, you will need to know some key intestacy succession provisions about the probate code in California. The laws of intestate succession vary greatly depending on whether you were single or married, or had children. In most cases, your property is distributed in even shares to your “heirs,” which could include your surviving spouse, parents, siblings, aunts and uncles, nieces/nephews and even distant relatives in some cases. Generally, when no relatives can be found, the entire estate goes to the state.

The Purpose of a Last Will and Testament

A will is a legal document that explains exactly how a person would like his/her property and assets distributed when they die and who receives what. A clear and concise will helps heirs avoid any confusion and it speeds the process of distributing the estate. It can be set up so taxes are minimized. It also enables people with young children to ensure that their children are taken care of once they are gone.

A person writes a will while he or she is alive, and its instructions are carried out once the individual dies. The will names a still-living person as the executor of the estate and that person is responsible for administering the estate. The probate court typically supervises the executor to ensure that he or she carries out the wishes specified in the will. Any assets not already designated by a beneficiary, such as a life insurance policy or a qualified retirement plan, are not included as probate assets and pass directly to the beneficiaries.

Dying Without a Will

Once someone without a last will and testament dies, his/her assets will automatically be controlled by a probate court. Without a will, the probate court will distribute all the assets based on the laws of the state where the property is located. It does not matter to the court who “deserves” what, if the person who died made any promises about property or what the deceased person would have wanted done.

Besides money, there are often emotional issues involved. When someone dies, they may leave behind items that have sentimental value for other family members or friends. A last will and testament is one way to ensure family heirlooms are given to the people who value them. When a court is left to decide who gets what, that family heirloom may go to someone who does not value it as much as someone else would. The court can even establish guardianship arrangements based on its determination as to the best interests of the children. This is why a last will and testament is so important.

Probate can be expensive and time-consuming. Even with a relatively small and easy estate, probate may involve court fees and attorneys’ fees that will come out of the assets of the person who died. There can also be serious tax consequences for those who die without a will. With a legal last will and testament, there are ways to avoid unnecessary taxes and ensure heirs get as much of the assets as possible. 

What Happens if You Die Without a Will…

And You Are Single?

If you are single and childless, your parents will receive your entire estate if they are both living. Otherwise, it will be divided among your siblings (including half-siblings) and your surviving parent, if one parent has already died. If you have no surviving parents at the time of your death, then your entire estate will be divided among siblings, in equal parts. If there are no surviving parents, siblings, or nieces and nephews, then the relatives on your mother’s side would inherit one-half of the estate, and the relatives on your father’s side would inherit the other half.

If, on the other hand, you are single and have children, then your entire estate generally will go to your children, in equal shares. If any child has died before you, and that child has any children, then that child’s share will go to your grandchildren.

And You Are Married?

Depending on how your assets are owned when you die, your estate will either go entirely to your surviving spouse, assuming it is community/marital property. If it is your separate property, it may be split between your surviving spouse, siblings and parents. If you are married and have children with your current spouse, your entire estate will go to your surviving spouse. Otherwise, your surviving spouse will receive up to one-half of the estate, with the remaining portion passing to your surviving children from another spouse or partner.

And You Are in Domestic Partnership?

Special rules apply to domestic partners. A domestic partnership is a relationship between two individuals who live together and share a common domestic life, but are not married to each other. Since not all states recognize domestic partnerships, it is important to check the laws of your particular state to learn how property is distributed upon your death.

California is a community property state, which is a policy that only applies to spouses and domestic partners. This means that all property a couple receives during marriage becomes joint property. More specifically, each person becomes the owner of half of their community property, but also half of their collective debt, according to California inheritance laws.

Dying without a will can be devastating to unmarried couples who are living together. Since intestacy laws only recognize relatives, unmarried couples don’t inherit the property of the other partner when one partner dies without a will. Unless there’s a will which clearly states a person’s intentions when they die, the decedent’s property will be divided among relatives, depending on their relation to the decedent.

And You Are Not Survived by Spouse, Descendants, Parents, Siblings

If the deceased person dies without leaving a will and isn’t survived by a spouse, descendants, parents, or siblings, the property passes to any nieces and nephews. Otherwise, it passes to grandparents, aunts or uncles, great aunts or uncles, cousins, or to the children, or parents and siblings of a predeceased spouse. In the unlikely circumstance that the deceased person is not survived by any of the aforementioned individuals, the entire probate estate will escheat to the State of California.

Do You Need an Attorney for Help with Probate Issues?

A skilled and knowledgeable probate attorney will make the probate process easier and run much more smoothly. Timing is incredibly important, and state laws vary widely. A probate attorney can help you understand your state’s laws, and will ensure all deadlines are met. Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney.

If you would like some guidance as you go through the process, a probate lawyer can help. To schedule a meeting with an attorney from Olson Probate, please call 714-847-2500.