Having a comprehensive estate plan is essential to controlling how one’s assets are distributed upon death. However, not everyone does this. Dying without a will subjects an estate to a process known as intestate succession. If a loved one has passed away without a will, you need to know what can happen to the estate assets.
At Loew Law Group, we help our clients plan for their legacies and provide for their relatives after they’re gone. We also step in to help administer estates, and determine who the proper beneficiaries are of a decedent’s estate. Finally, we provide legal services for heirs and next of kin who may make claims to the estate under California’s intestate succession laws.
What Is Intestate Succession?
To die “intestate” means to die without a validly executed will. “Intestate succession” is the comprehensive process that then applies to distribute the assets that would normally have been handled by a will. California’s Probate Code has established a series of laws that allow the heirs and next of kin of the decedent (the person who passed away) to inherit assets under intestate succession.
Is All Property Subject To Intestate Succession?
Some property does not pass by way of intestate succession. Instead, these assets pass through other means without the court’s assistance. These are some examples:
- Property held in a living trust
- Life insurance proceeds with a named beneficiary
- Bank accounts with a named payable on death beneficiary
- Retirement accounts with a named beneficiary (e.g. 401(k) and IRA)
- Jointly owned real estate with a right of survivorship
If you have questions about whether a particular asset will pass by intestate succession, ask a knowledgeable California probate attorney.
How Are Assets Distributed?
To determine how estate assets will be distributed without a will, there are a few key questions to ask: First, was the decedent married? Second, is the property at issue community property or separate property? California is a community property state. This means that there is a presumption that any property acquired during a marriage belongs to both spouses. Meanwhile, separate property is property that one of the parties acquired before the marriage, or by a gift or inheritance during the marriage, or using separate property funds.
As the following scenarios make clear, the process for distributing property by intestate succession can be very complicated. Be sure to consult an experienced probate attorney for more information.
If the decedent was married, his or her intestate assets may pass as follows:
- If there is only a surviving spouse and no issue of the decedent (that is, no children, grandchildren, great-grandchildren, etc.), and no parents, siblings, or issue of deceased siblings, then the surviving spouse receives 100% of the community and separate property.
- If there is a spouse and there are also surviving children of the decedent, or there are issue of deceased children, then the spouse receives 100% of the community property, and between one-half and one-third of the separate property, depending on the number of children. The remaining shares of the property are distributed in equal parts to the children or to the issue of deceased children.
- If there is a spouse, and there are no issue of the decedent, but there is a surviving parent or parents of the decedent, then the spouse receives 100% of the community property, and one-half of the separate property. The remaining one-half is distributed to the parent or parents.
- If there is a spouse, and there are no issue of the decedent, and no surviving parents, but there is a surviving sibling or siblings of the decedent, then the spouse receives 100% of the community property, and one-half of the separate property. The remaining one-half is distributed to the surviving sibling or siblings.
If the decedent was not married, his or her intestate assets may pass as follows:
- If there are surviving issue, then the issue receive 100% of the property and take equal shares if they are in the same generation.
- If there is a surviving parent or parents, but there are no issue, then the parents receive 100% of the property.
- If there is a sibling or siblings, but there are no issue and no parents, then the sibling or siblings receive 100% of the property, and take equally if they are of the same degree of kinship to the decedent.
- If there are grandparents or issue of grandparents (such as uncles, aunts or cousins of the decedent), but there are no issue, parents, or siblings of the decedent, then the grandparents (or grandparents’ issue if the grandparents did not survive), receive 100% of the property, taking equal shares if they are of the same degree of kinship to the decedent.
- If there is a predeceased spouse who had issue, but the decedent left no surviving issue, parents, or grandparents, or issue of a parent or grandparent, then the issue of the predeceased spouse receive 100% of the property, taking equal shares if they are of the same degree of kinship to the predeceased spouse.
- If there are next of kin (sometimes called heirs at law), but there are no surviving issue, parents, grandparents, or issue of a parent or grandparent, or issue of the predeceased spouse, then the next of kin receive 100% of the property, taking equal shares if they are of the same degree of kinship to the decedent.
- If there are parents of a predeceased spouse, or issue of the parents of a predeceased spouse, but there are no surviving issue, parents, grandparents, or issue of a parent or grandparent, or issue of the predeceased spouse, or any next of kin, then the parents of the predeceased spouse, or issue of the parents of the predeceased spouse, receive 100% of the property, taking equal shares if they are of the same degree of kinship to the predeceased spouse.
How Can Loew Law Group Help Me?
The intestate succession described above is automatic. But that doesn’t mean the process is simple. Heirs may argue over whether they were actually distributed the amounts required by law. Individuals may step forward claiming to be an heir or next of kin, while others dispute it. And in some cases, no one fits into the succession, so the assets are distributed to the state of California.
If you believe you may have legal authority to administer a decedent’s estate, you should seek out experienced attorneys right away to advise you on how to administer the estate, and to help you determine who may be entitled to a share of the estate.
And if you’re an heir, next of kin, or someone who believes you are entitled to a portion of an intestate estate, you deserve to know your rights. Loew Law Group is here for you. Give us a call today to learn more.
Loew Law Group estate planning lawyers serve clients throughout California, including Alameda, Belmont, Burlingame, Contra Costa, Foster City, Hillsborough, Marin County, Redwood City, Santa Clara County, Santa Cruz County, San Francisco County, and San Mateo County.