Intestate succession is the term to describe the process for handling an individual’s estate when that person dies without a last will and testament. It is how the state determines who is to inherit what from you if you pass away. When someone in California dies without a will and has no known heirs, a public administrator is appointed to administer the estate and determine who the heirs are. Often, the public administrator will use the estate’s funds to hire an heir searching firm to find the nearest surviving relatives. Sometimes the nearest surviving relatives are the decedents 4th or 5th cousins. Programs such as Ancestry.com have made it relatively easy to find heirs for most people – heirs the decedent didn’t even know existed. If no relatives can be located in very rare cases, the state can obtain all of the individual’s assets through escheat. Escheat is the legal reversion of property to the state upon the owner’s dying without legal heirs.
While a last will and testament or a trust can be legally challenged in court, California’s intestate succession laws cannot be challenged.
When Intestate Succession Applies
In California, intestate succession applies when an individual dies without a will. In these instances, the decedent’s relatives will be entitled to receive a portion of the estate. Assets that don’t normally go through a will, such as retirement accounts, may be subject to intestate succession laws if they do not have a named beneficiary.
Examples of assets that do not pass through intestate succession include:
- Property that has been transferred to a living trust
- Proceeds from life insurance that has a named beneficiary
- Funds held in an IRA, a 401(k), or other types of retirement account with a named beneficiary
- Payable-on-death bank accounts
- Securities held in a transfer-on-death account
- Vehicles held in a transfer-on-death account
- Property owned jointly with another individual in joint tenancy as community property with the right of survivorship.
These types of assets pass to either the co-owner, in cases such as jointly-held property, or the beneficiary named on the account. This asset transfer occurs whether or not you have a will.
Determining Heirs Using California Intestate Succession Laws For Unmarried Individuals
Heirs are individuals entitled to receive property of another individual upon that person’s death. Named heirs are those found in a will. In the absence of a will, the state of California will determine the decedents’ heirs based upon familial relationships. Heirs will inherit property based on rules of descent and distribution.
In an intestate situation, the surviving spouse receives all of the community property and a portion of the separate property based on a predetermined formula set out in probate law. If the decedent was not married but has children, then the children will inherit everything equally. If the individual is unmarried with no children, but his/her parent(s) is alive, then the parent(s) will inherit everything. In cases where an individual is unmarried and has no surviving children or parents, the siblings would inherit everything equally. Under this circumstance, if the person has no siblings, the grandparents would then inherit the property. If there are no grandparents, the decedent’s aunts or uncles would be next in line to inherit the estate, followed by cousins. Provided that no suitable family has yet been identified, the Probate Code section 6402 allows the estate to be distributed to next of kin in equal degree, which would capture distant relations. In California, the term “spouse” includes registered domestic partnerships.
Determining Heirs Using California Intestate Succession Laws For Married Individuals
If the decedent was married at the time of their death, it is important to distinguish between two different types of assets by California law. Community property is defined a the assets acquired during the marriage from earnings or salary. Separate property is defined as assets brought into the marriage when the decedent was married and inheritances and gifts to the decedent. There may be a certain exception to these definitions, but they are generally used to apply to most scenarios.
Many couples choose to blend all of their assets, so they are considered community property and transfer to the surviving spouse at death. If there is separate property, the surviving spouse will inherit all of it or a portion of it depending upon how many other close family members are entitled to the assets under California’s intestate succession laws. If the couple is legally separated at the time of the death, the surviving spouse may or may not be entitled to any inheritance, depending on the terms of the separation agreement.
If the decedent has a spouse and one child at the time of death (or one grandchild in instances where the child is no longer alive), the spouse will inherit half of the separate property. The child or grandchild would receive the other half of the separate property. If the decedent has a spouse and two or more children (or grandchildren of a deceased child), the spouse will receive one-third of the separate property, and the remaining two-thirds would be divided equally among the children (or grandchildren). In the absence of children or grandchildren, the separate property would then be divided 50-50 to the spouse and the decedent’s parents. If parents are no longer alive, the assets would be split 50-50 between the spouse and the decedent’s siblings (or the children of deceased siblings).
Determining Children For Intestate Succession In California
Children are entitled to a portion of the separate property assets when a parent dies without a will. And while this may seem straightforward, families are becoming increasingly complex. Therefore, there are several issues to remember when considering children for intestate succession.
- Legally adopted children are entitled to the same rights as biological children.
- Foster or stepchildren may be eligible as heirs if they can prove all of the following: (1) the relationship began when they were minors; (2) the relationship continued throughout their lifetimes; and (3) the foster or step-parent would have adopted them, if possible.
- A biological child legally adopted by another family is not entitled to any inheritance from his or her biological family.
- Children born after the decedent’s death are considered heirs.
- Children born outside of marriage may still receive a portion of the estate if they can prove the decedent acknowledged them as children and contributed to their care.
- Any child born to the decedent’s wife or female member of a registered domestic partnership during the marriage is assumed to be the decedent’s child and entitled to a share.
- Grandchildren are only legally entitled to a portion if their parent (the decedent’s child) is not alive to receive the parent’s portion.
While these topics address most issues within California’s intestate succession laws, there are intricacies within the law that may or may not be relevant depending upon the unique factors of any particular case. For instance, a person must outlive the decedent by 120 hours to be eligible to inherit any property.
The bottom line is that intestate succession can get complicated very quickly. Unfortunately, these laws are often not in alignment with the decedent’s actual wishes and intentions. And while nobody wants to consider their imminent demise, it’s better to plan for it far ahead of time. You can have peace of mind knowing that your wishes will be carried out with a legal and valid estate plan.
Contact the Law Offices of Janet L. Brewer today to find out more about creating a plan to honor your last wishes and avoid California’s intestate succession laws.
