and Probate Law Firm
What Happens to My Assets if I Pass Away Without a Will or Trust?
In the State of California, there are very specific statutes that govern who is to receive what property when an individual passes away. Informally referred to as “inheritance laws” these statutes go into depth as to who is entitled to what assets when an individual passes away. This article will help to provide you with key guidance regarding these laws and how they may apply to your specific situation and whether you may want to enlist the help of an experienced Folsom estate planning lawyer.
“Intestacy” and Inheritance Laws
The first legal term that we will introduce you to is “intestacy”. This refers to when an individual passes away without a will or trust. That individual would be deemed “intestate” and “intestacy laws” will govern. Conversely, if an individual leaves behind a will or trust, that person would be deemed “testate”.
As such, the most important point to take into consideration when discussing inheritance laws is whether or not the deceased was “intestate” or “testate” – i.e. left behind a will or trust. If the person died without a will or trust, the intestacy laws provide “default” rules that prescribe a certain percentage of a decedent’s assets to certain members of the decedent’s family. Conversely, if a person died with a valid will or trust, these documents takes precedence over the intestacy laws and the terms of the will or trust will govern.
The Default Inheritance Laws
If an individual does indeed die intestate (i.e. without a will or trust), then state law gives preference according to whether or not that individual died with a spouse. If the decedent did have a spouse, then preference is given to the spouse. If the individual died without a spouse, then children and family members are given preference. In this case the preference would be first the decedent’s children, then parents and then finally siblings. If the decedent had no family members at the time of death, the estate would go to the State in what is known as “escheat.”
Please find below a summary chart for intestacy:
|Decedent Left Behind
|Spouse and no children
|100% to spouse
|Spouse and one child
|100% of community property to spouse; separate property equally split between spouse and child*
|Spouse and two or more children
|100% of community property to spouse; 1/3 of separate property to spouse; 2/3 of separate property equally split among children
|Spouse, parents, no children
|100% of community property to spouse; 1/2 of separate property to spouse; 1/2 of separate property to parents
|Spouse, siblings, no children, no parents
|100% of community property to spouse; 1/2 of separate property to spouse; 1/2 of separate property to siblings
|No spouse but did have children
|100% to children
|No spouse, no children but did have parents and siblings
|100% to parents
|No spouse, no children, no parents but did have siblings
|100% to siblings
* California is a community property state, meaning that any property accumulated during the course of a marriage is deemed to be jointly owned by the two spouses. This is the case regardless of who “earned” the money to purchase such assets. Given the preferred role that spouses are given to community property, they also are in a preferred role for inheritance of the community property. Separate property, on the other hand, refers to assets that were owned prior to marriage or inherited during the marriage. The spouse does not have a preference in the inheritance of these assets.
The State of California has written into law very specific statutes that prescribe which family members will inherit which assets when an individual passes away. However, if the decedent left behind a validly executed will or trust, which is generally drafted by an experienced Folsom estate planning lawyer familiar with California intestacy laws, then the decedent’s wishes will govern.
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