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The Law Of Intestate Succession In California: What Happens When You Do Nothing

There are default laws that come into effect when one “does nothing” about organizing one’s assets and passing them on to loved ones according to a specific plan.  Therefore, to take no action is to make an affirmative decision to have the state arrange your affairs according to the laws in effect when you pass on (i.e. if you fail to plan, the state will give you the plan it thinks is best for you).

The statutory scheme that determines who will receive your assets where there is no will or trust is called “intestate succession”. The purpose of intestate succession statutes is to distribute the decedent's wealth in a way that approximates how the average person would have designed his or her estate plan had that person had a will. However, this default law can differ dramatically from what the person really would have wanted. Furthermore, even where it is known what the person intended through some other means, no exceptions are made where no valid will exists.  To put it plainly, the law frowns upon people who have not created a will for themselves and does not make it easy to administer an estate in that case.

If a person dies intestate (without a will), the state where the decedent resides makes the rules as to who inherits the decedent's property. The only exception is with regard to real property. Real estate is controlled by the laws of the state where the real property is located.  California law regarding intestate succession applies to bank accounts, securities, real estate in California, and other assets.

As you will see from the discussion below, the law of intestate succession also varies depending upon whether the decedent was single or married at the time of passing on. It will undoubtedly make your brain spin, but give it a patient read and see how it squares with your own wishes.

What happens if you are a single person

If you are unmarried when you die, the assets go to the following people, in order:

1. Children, equally. If a child is deceased but had children, the child's share goes to his or her children equally. If the decedent had three living children and no deceased children, each child would receive one-third of the assets. If there are two living children and one deceased child who had two children, each living child receives one-third and each child of the deceased child receives one-sixth (one-half of the third). In some but not all cases, foster children and stepchildren can inherit from foster parents or stepparents.

2. If no living children, assets go to the grandchildren equally.

3. If no children or grandchildren, assets go to the great grandchildren, equally.

4. If there are no great grandchildren, assets go to the decedent's parents equally, or to the surviving parent if one is deceased.

5. After that, assets go to brothers and sisters equally (half-brothers and sisters are considered the same as full brothers and sisters) with provision that if any brothers or sisters are deceased, their share passes to their children equally.

6. If none of the above persons are available, then assets go to grandparents, equally, or to the surviving grandparents if any are deceased.

7. Then to the descendants of grandparents, such as aunts, uncles and cousins.

8. Next in line are descendants of a predeceased spouse (step-children).

9. Then to parents or the surviving parent of a predeceased spouse.

10. After that to descendants of the parents of a predeceased spouse, such as brother-in-law, sister-in-law or that person's children.

11. The next of kin or nearest relative.

12. The next of kin or nearest relative of a predeceased spouse.

13. If none of the above, to the State of California.

Additionally, there is a special provision in the law that if a single person dies without a living spouse, children or grandchildren, and had previously inherited from a predeceased spouse, what was previously inherited from that spouse goes back to the predeceased spouse's nearest relatives. In other words, it will not be passed on to the single person’s kin.

The right of inheritance for relatives of a predeceased spouse only occurs when there is real estate involved and the two spouses die within fifteen years of each other, or when there is personal property (all assets other than real property), and both spouses die within a five-year period.

What happens if you are married

The rights of inheritance for a person who is married at death depends upon the nature of the assets owned. Assets can be community or quasi-community property (acquired during marriage either in or out of California) or separate property (owned before marriage or acquired during marriage by gift or inheritance).

All community property and quasi-community property passes entirely to the surviving spouse.

Any separate property of the decedent is distributed to the surviving spouse and other relatives, depending on the relatives who survive, as follows:

1. Spouse and children: One-half to spouse and one-half to one child if there is only one child. If there is more than one child, one-third goes to the spouse and two-thirds to the children, in equal shares.

2. If there are no children or grandchildren (if there is a deceased child, the children of the deceased child take his or her share), then one-half to the spouse and one-half to the decedent's parents equally, or one-half to the surviving parent if one parent is deceased.

3. If there are no children, grandchildren, or parents of the deceased, then one-half goes to the spouse and one-half to the decedents' brothers and sisters, equally (half-brothers and half-sisters share equally with full brothers and sisters). If there are any deceased brothers or sisters, the children of the deceased brother or sister take that parent's share, equally.

4. If there are no children, grandchildren, parents, brothers or sisters, nieces or nephews, then all of the separate property passes to the surviving spouse.

On the surface, none of this sounds very unreasonable, and the above-described scheme may in fact reflect how many people want their assets distributed.  But among the limitations of dying without a will or trust are:

• no avoidance of probate if your estate is beyond a certain amount

• the probate process may well be even more cumbersome, as extra efforts (and cost) will have to be expended to locate all the relevant parties and to appoint an executor, etc.

• no option of leaving a gift to a relative that is not in the chain of distribution under intestate succession, nor to any friend or charity.

• the inability to make customized arrangements for  children or spouses or other relatives or friends with special needs (an offspring with a disability or with no capacity to manage money wisely),

• no opportunity to choose the guardian for your minor children,

• your minor children receiving their entire inheritance at 18.

• your assets for your minor children being divided equally, with no provision for the possibility of one child needing more because of serious illness or disability.

• no planning for the reduction of tax liability if your estate is large, so that more of your estate can go to your loved ones 

• no choosing an executor outside the legal order of preference (spouse, child)

The above is not an exhaustive list of the possible drawbacks of dying without a will or trust.  It is just enough to get you thinking about your own life-profile and goals for your loved ones. Given the unforeseen results of not planning, it is not surprising that volunteer attorneys in the various bar associations draw up plans free of charge for the most indigent of persons to avoid them becoming incapacitated or dying without having expressed their wishes. It is a gift to yourself and to your loved ones to speak your mind about what matters most to you.

© Aida M. del Valle.  All Rights Reserved.