While planning your estate, it is only natural for you to wonder what would happen if you died without completing your will. In such cases of what are called “intestate succession,” the state of California has a very specific set of procedures. These will come into effect and determine the fate of the estate.
An intestate succession occurs when either the will is missing or the court has determined the will to be invalid. In these situations, the estate goes through probate. This can take several months or even years, depending on the circumstances. It will also carry a plethora of court costs and legal fees. During this process, the court determines which of your relatives will inherit your estate.
During an intestate succession, the assets that are owned solely in the deceased’s name are the primary subject of the transfer. These assets include everything that would typically be designated by a will.
Many items may not be addressed in a will, although this will depend on the nature of the assets in question. Anything that had an otherwise designated owner or designee will still be honored if its designation is considered valid.
Some assets that are not transferred include any communal property or property that has joint ownership. This applies to real estate, bank accounts, cars, retirement accounts, and other assets. These may have joint ownership designated by the deceased.
Before death, securities and bank accounts can be set as payable-on-death or transferable-on-death. These assets will automatically transfer to the designated individual 40 days after the passing of the deceased. Similarly, life insurance automatically pays to the person listed as the beneficiary, rather than to your estate, if you have designated one.
Lastly, assets can be transferred to a trust before death. A beneficiary of the trust will gain access to it as dictated by the terms of the trust.
In California, there is a pre-established order of succession. The exact individuals who will inherit will depend on who is alive, whether you were married, and whether you had children.
The first inheritor of property is your spouse. If both your spouse and children are alive at the time of your death, the spouse will receive between one-half and one-third of your property. This portion will depend on how many children and grandchildren you have. Any remaining assets will be distributed between the children and grandchildren.
If you are married, but do not have children, then the state will determine whether you have any surviving siblings, parents, nieces, or nephews. These people will receive half of your property, split between them, with the rest being given to your spouse. If the spouse is the sole survivor, they will receive all the property in question.
If you are unmarried when you die, but you have children, they will receive all your property. This applies to both biological children and legally adopted children. If there are no children still alive, then it passes down to the grandchildren.
If you have no spouse or children, then your estate will pass to your parents, your siblings, your grandparents, and then on to even more distant relatives.
In intestate successions, your estate will stay within your family tree, unless it is truly impossible to identify a relative. The state will start with the most direct legal and familial ties. Then, they will work outward from there until they reach a legally acceptable outcome.
However, it is important to remember that the probate process and court costs can significantly diminish what your heirs will receive. Also, the court may not make the same determinations you would have made for yourself. Planning your estate yourself may seem daunting. However, there can be a great deal of comfort in knowing precisely where your assets will go after your passing.
A: Who inherits if there is no will depends on who is alive at the time of your death. If you are married, your assets will go to your spouse first. If your spouse has also passed, they will then go to your children and grandchildren. Beyond that, they go to your parents and then to your siblings or grandparents. If none of your immediate family is alive, then the state continues out along your family tree from there.
A: Probate is a very time-consuming process in California. It usually takes at least several months. If the process is going to take longer than a year, the probate attorney is required to file federal estate taxes. This can extend the process up to 18 months, or even longer, depending on the specific conditions applying to the estate.
A: Most estates must go through the probate process. However, there are certain circumstances where probate can be avoided. One such circumstance occurs with particularly small estates. You can also effectively pre-settle an estate by:
A: An estate worth less than $150,000 can avoid the probate process and be transferred to the beneficiaries. The death certificate must be presented along with appropriate supporting documentation. If 40 days have passed since the decedent died, then all assets can be transferred to the beneficiaries through a small estate affidavit.
If you or a loved one is currently thinking about planning their will, has encountered the absence of a will, or has other questions regarding inheritance, contact us at Davis Toft. We can help you with your specific situation or answer any questions you might have.