9th Dec 2012
No one can predict when he or she will die. It is this unpredictability of death that makes the creation of a will or living trust while the person is alive imperative. A will is a legal document that enables the person to designate who his heirs will be and how much of his estate will go to what heir. When a person dies without leaving a will, he then lets the state do the apportioning of his estate according to its law. In California, this is calledintestate succession law.
Intestacy is simply a formula the state uses to determine the order of succession or transfer of an estate in the event of a person’s death and he dies without a will.
Intestacy is relatively simple when a person dies without a surviving spouse. His estate is then divided equally among his children. If he does not have children, then his estate is divided equally among his grandchildren or great-grandchildren (known as “issues” in probate law). If he does not have any issues, then his estate goes to his parents. If the parents are deceased, the estate then goes to his siblings (known as the “issues of the parents”).
Matters become complicated when the decedent or the person who dies is married. Since California is a community property state, all of the decedent’s community property is immediately transferred to the surviving spouse. Community property is those property and assets which are considered conjugal or shared by the married partners, from the day of their marriage up to the time of their separation.
In California, married partners also have separate property. These are assets which the partner owns prior to the marriage or gifts, donations or inheritance they received. These are considered separate from the community property and the surviving spouse will not automatically receive these. If there are no other heirs or children, then the spouse will get all of the surviving property as well. However, if the decedent has one child or heir, then the spouse gets 50% of the separate property. If the decedent has more than one child or heir, then the spouse receives 33% of the estate. (The other heirs divide the remaining estate equally.)
The State of California is very specific and explicit as to who will receive a share of the intestate estate. However, it is expected that many individuals will present themselves as heirs to the decedent especially if the person leaves a very large estate. If you are one such heir, you should consider hiring an experienced wills and trust attorney to protect your interest.
The statutory transfer of the estate to legally designated heirs will not be applied if the person dies with a legally binding will. Hence, it is of the person’s best interest to draft a will so that he – and not the State of California – can determine who gets what part of his estate when he dies.