Dying Without a Will in the State of California
When a person dies without a will, it is known as dying intestate. Under the rules of intestacy, only certain people can inherit. If someone makes a will, but it turns out the will is not legally valid, California rules of intestacy decide how the estate will be distributed. California law requires a person to be at least 18 years old to make a will. The signature of the maker of the will must be witnessed by two people who will also sign the will (these witnesses must be disinterested parties, rather than individuals who will benefit from the will).
California does allow holographic (handwritten) wills; if you prepare a handwritten will, your signature does not need witnesses. California residents can also use what is known as a statutory will, which is a specific form. The blank spaces of the form are filled in, and the bottom is signed by the maker, with two witnesses. Additions or deletions to a statutory will can invalidate the will. An attorney-prepared will is usually the right option for most people to avoid having the will declared invalid.
So, if a person dies intestate, whether because there is no will or because the will is declared invalid, a California probate court will supervise the transfer of the decedent’s assets and property through the probate process. There are certain assets which may pass automatically, without any assistance from a California court. This includes various jointly-held assets or accounts, accounts with a named pay-on-death beneficiary, proceeds from a life insurance policy, some retirement accounts with a designated beneficiary, and some jointly-owned real estate.
Aside from assets which pass outside of probate in the state of California, most assets of a person who dies without a will in the state of California will go through California probate prior to being distributed according to California intestacy laws. These laws are as follows:
- If the decedent was married at time of his or her death, then the first thing to determine is which property is community property. California is a community property state, therefore most property acquired during the marriage is considered community property. Separate property which was acquired by the decedent before the marriage, any gifts or inheritances acquired by the decedent before or during the marriage, or property acquired following a separation by the decedent and his or her spouse, will be distributed according to California intestacy laws.
- If a decedent was married at the time of his or her death and had no children, grandchildren, parents, siblings or nieces and nephews, then the surviving spouse will receive 100 percent of the community property as well as all the decedent’s separate property.
- If the decedent was married and has children or grandchildren, then the surviving spouse will receive all the community property, and between one-half and one-third of the separate property (depending on the number of children). The remaining one-half to two-thirds of the decedent’s separate property will be distributed equally between the decedent’s children, or the grandchildren if a child is deceased.
- If the decedent was married, has no children, but has living parents, then the surviving spouse will receive all the community property, and half of the decedent’s separate property. The remaining half of the decedent’s separate property will be distributed to the decedent’s parents.
- If the decedent has a spouse, no children and no living parents, then the surviving spouse will receive all the community property and half of the separate property. The remaining half of the decedent’s separate property will be divided equally between the decedent’s siblings.
- If the decedent is not married and has children, then all the decedent’s property will be divided equally between the children (or, in the event a child has died, then that share goes to his or her children).
- If the decedent is not married and has no children, but does have living parents, the parents will receive all the decedent’s property.
- If the decedent is not married, has no children and has no living parents, then the siblings of the decedent will receive all the decedent’s property.
- If the decedent is not married, has no children, has no living parents and has no siblings, the grandparents of the deceased will receive all the decedent’s property.
- If the decedent had a spouse who was already deceased, and has no children, no living parents, no siblings, no grandparents or issue of grandparents, then the children of the predeceased spouse will receive all the decedent’s property.
What Is The Probate Process When an Individual Dies Without a Will in California?
If a person dies without a will in the state of California, the probate process is much the same as when a person dies with a will, with a few additions. The probate court will appoint a personal representative, known as the administrator. The administrator will receive all legal claims against the estate, pay creditors and manage other expenses owed by the estate. These expenses could be a judgment against the estate, unpaid bills, outstanding loans or court costs. Next, the decedent’s heirs will be identified; if no heirs can be located, the estate will default to the state of California. After paying taxes and expenses and identifying legal heirs, the probate court will identify the assets to be distributed as well as who the assets will be distributed to. Any property or assets which is not disposed of via a will or right of survivorship will be distributed.
How the Gullotta Law Group Can Help
An experienced estate planning attorney from the Gullotta Law Group can ensure that you have an expertly prepared estate plan and can avoid the issues associated with dying intestate. We will discuss your financial situation, your real and personal property, your estate planning goals and the needs of your loved ones should the unthinkable happen, working closely with you for a California estate planning solution that is right for you. We will work closely with you to ensure your loved ones are not left with undue expenses and will help you determine what estate planning tools are right for you and your situation, whether a will, a living trust, a testamentary trust or powers of attorney. We will help you anticipate and avoid adverse tax effects and will do everything in our power to make this experience as simple as possible. Contact the Gullotta Law Group today!