Intestate Succession is a probate process used to distribute property and assets when there is no will on record in California, or when assets and property have not been assigned in the will on file. When you die without a will, some or all of your assets will be distributed to your remaining relatives based on relationship. When heirs and beneficiaries are not named, intestate succession takes over. Your heirs named by intestate succession could include your parents, spouse, children, aunts, uncles, nieces, nephews, or any other blood relative.
What Are the Intestate Succession Laws in California?
Intestate succession laws are found in sections 6400 through 6455 in the California state probate code. These laws dictate how much will be received and by whom. Here are some important rules to know about intestate succession:
Spouses do not automatically inherit all.
Spouses do not automatically inherit all of the property and assets unless there are no other relatives. In most cases, spouses receive half or less of community property and assets. The spouse will receive a smaller portion of separate assets.
People not related by blood can be named heirs through intestate succession.
If there is no surviving spouse and no other surviving blood relatives, the deceased spouse’s next of kin will receive your assets and property.
All children inherit equally.
Children who are half siblings are treated as full siblings for the purpose of dividing property and assets. Children receive half or more of the assets when there is a surviving spouse. When there is not a surviving spouse, the children inherit everything equally.
A named beneficiary that dies within 120 hours of the deceased is not considered.
Unless there are no surviving kin to inherit, a named beneficiary that dies within the 120-hour time frame is considered to have passed before the deceased. For example, if you left everything to your brother and you die together in a car accident, intestate succession distributes assets to your remaining heirs. If there are no remaining kin, the rules dictate that the assets transfer to the deceased beneficiary’s next of kin.
An estate could be added to the state’s coffers when there are no apparent heirs.
If probate is unable to locate any surviving kin, and no other rules apply, the estate is added to the state’s funds.
A few more rules:
Immigrants, regardless of legal status, may inherit based on the laws of intestate succession. If you die from nefarious means, the perpetrator who intentionally caused your death cannot inherit, even if they are named as a beneficiary.
When Does Intestate Succession Apply to an Estate in California?
Estates may be subject to intestate succession in whole or in part. In many cases, assets have a designated beneficiary to whom the asset transfers on death. This could include deeds, vehicle titles, life insurance policies, bank accounts, and more. Intestate succession does not apply to portions of the estate with surviving named beneficiaries.
Intestate succession applies to part or all of an estate when the deceased does not have a will naming heirs or beneficiaries. An estate could also be disposed of by intestate succession if the named heirs are no longer living at the time of the disposition of the estate.
What Assets are Included Under Intestate Succession?
In most cases, not all assets are included under intestate succession. There are several instances in which only some assets are distributed by this California probate law. Some of the assets that could be excluded from intestate succession and pass immediately to a beneficiary include:
- Life insurance policies with a named and surviving beneficiary.
- Vehicle titles with a transfer on death beneficiary.
- Real property deeds with a transfer on death beneficiary.
- Assets designated to go to a trust for a surviving beneficiary.
- Living trusts that transfer on death to a surviving beneficiary.
- Retirement accounts with transfer on death beneficiary.
- Bank accounts that are payable on death to a named heir.
- Property and assets owned jointly with a surviving owner.
The co-owner or surviving named heirs of these assets automatically receive them without going through probate regardless of whether or not you have a will. All other assets not designated in a will are subject to intestate succession rules.
What Does a Spouse Get When There Is No Will?
You might assume that your spouse will automatically get everything when you die without a will, but this is not always the case. When you have other surviving heirs, they may receive a portion even if your spouse survives. In most cases, spouses receive all of the community property from the marriage and a portion of the separate property assets dependent on other surviving heirs.
Here is the breakdown of how much a spouse can receive when there is no will:
- The spouse receives the entirety of the estate when there are no other living family members.
- The spouse receives half of the separate property when the deceased is survived by a spouse and one child or grandchild.
- The spouse receives one-third of the separate property when the deceased is survived by a spouse and two or more children.
- The spouse receives half of the separate property when the deceased has surviving parents.
- Likewise, if you have surviving siblings your spouse will only receive half of the separate property.
Community property includes most assets and property obtained during the marriage. Separate property are assets that the deceased held before the marriage. Gifts and inheritances are not considered marital community property. Your spouse will also automatically receive ownership of any jointly owned assets or property.
If your spouse is named as a beneficiary on assets or in a will, and they pass before you, and you do not have any surviving children or qualifying grandchildren, the estate will pass to their children, or barring surviving children the estate will be distributed to parents or next of kin accordingly.
What Do Children Get Under California Intestate Succession Laws?
Children and grandchildren of the deceased also typically receive a portion of the estate. When the descendant has no spouse, the surviving children are entitled to at least half of the estate. Adopted children are included as though they were the issue of the deceased. If your female spouse is carrying your child when you pass on, the child will receive a portion as though they were born while you were still living.
Children born outside marriage are considered equal beneficiaries if they can prove that you acknowledged them as your child and that you provided financial support. Grandchildren could also receive a portion of the estate when their parent, the deceased’s child, are themselves no longer living.
When there is only one child or qualifying grandchild and the spouse is surviving, the estate is divided evenly between child and spouse. However, if there is more than one child or qualifying grandchild, the children as a group receive 2/3 of the portion of the estate distributed by intestate succession.
What Happens if There is No Spouse or Children?
Intestate succession gets a bit trickier when there is no surviving spouse or children. When parents survive their child, the child’s estate is transferred to their parents. If there are no surviving parents, the estate is evenly distributed to the surviving siblings. Like children, siblings inherit equally even if they only share one parent.
When there are no surviving spouse, parents, children, grandchildren, or siblings of any degree the estate will pass to the next of kin. Aunts and uncles are considered next, then any surviving nieces or nephews. The intestate succession continues to consider heirs based on relationship, with more remote relatives receiving a smaller, or no portion.
If the probate court cannot find any other surviving heirs or beneficiaries, the estate escheats to the state of California. This rarely happens because the laws are designed to prevent it. However, it does happen that people pass without any living heirs and no will.
Do all Intestate Estates Have To Go To Probate?
No, but the majority of intestate estates in California do need to go through the probate process. However, smaller estates, typically those valued under $184,500, may be eligible for simplified procedures that bypass formal probate. Additionally, certain assets like joint accounts or property held in joint tenancy automatically pass to the surviving owner, avoiding probate altogether. For larger or more complex estates, probate is usually necessary to ensure proper distribution according to state laws.
What Are Common Problems with Intestate Succession?
The biggest problem with allowing intestate succession to determine how your estate will be distributed is that you have no opportunity to ensure that unrelated individuals receive a portion. For example, if you and your partner are not married or registered domestic partners, they will not receive any of your estate by the rules of intestate succession.
You may also have relatives that you do not want to inherit. If you don’t leave a will behind, these individuals could still receive a portion of your estate, creating a lengthy inheritance dispute. Many people cut relatives out of their will because they would not be responsible with the money. Sometimes concerns of substance abuse could influence this decision.Finally, intestate succession poses some complications when minor children are decided as heirs to your estate. An estate guardian must be named to control those assets and use them to benefit the child. The remaining inheritance is transferred to the child in full on their 18th birthday. This is true whether you have a will or a trust or not. If you are concerned about who might be named as estate guardian, naming one in a will is your best option. Creating a living trust may be another viable alternative.
Need Professional Help? Talk to an Expert Los Angeles Estate Attorney
The best way to avoid probate and intestate succession is to have a will or trust in place before your death. Naming beneficiaries and transfer on death heirs on particular assets not only avoids probate, but it also allows those assets to pass immediately. This is important when you have a surviving spouse or children who need those assets for their survival.
An expert Los Angeles estate attorney can help you plan for every eventuality. When a will is done right, it will cover every possible scenario that might land your estate in probate. Our estate attorneys have a proven record of helping people make their final arrangements. We can also help you set up living trusts and draft a living will or advance healthcare directive. Contact us today for a consultation to learn what estate documents you need to have in place.
