A question clients often ask us is what happens if someone dies without a will, trust, or any estate plan here in California? This is a scenario we call “intestacy” or where someone has died “intestate”—intestate means without testamentary documents like a will or trust. Intestate succession laws attempt to distribute property to the person’s next closest relatives.
The first thing we need to determine when someone dies without a will is what is the gross value of all their property that does not have a valid succession plan. In 2023, if the total assets are less than about $184,500, there is a simplified procedure we can use to distribute assets to the person’s next closest relatives.
If the person has assets beyond the small estate limit, or most commonly, if they own a home here in California regardless of whether there is still a mortgage, then someone has to go to probate court and petition to be appointed as the deceased person’s personal representative.
When someone is appointed as a personal representative, they essentially step into the shoes of the person who passed away and are responsible for managing all of their affairs. The representative would need to collect and inventory all estate assets, pay any taxes or debts, provide accounting of these items to the probate court and distribute remaining assets as directed by the court. The personal representative can even be named in a lawsuit if the deceased person incurred any sort of liability before they passed away, or they can file a lawsuit on behalf of the estate is certain cases.
Intestacy laws determine the breakdown for who gets what assets and how much they receive.
If the person was married, their spouse inherits 100% of any community property assets. In California, community property very generally means anything acquired by a married person during their marriage except for certain gifts, inheritances, or sometimes income that is traceable to a separate property source. There are additional rules that apply to separate property percentages depending on what other family members or descendants survive you.
If you are unmarried when you die, any children or potentially grandchildren or other descendants would split your estate. If someone passes away with no descendants, then we look for parents, followed by siblings, then nieces and nephews, and so on until we find the person’s next closest relatives.
If we can’t find any relatives, then eventually the property would go to the state.
Some assets would not be subject to this process even without an estate plan.
Those could include:
- Property that has been transferred to a living trust
- Proceeds from life insurance that has a named beneficiary
- Funds held in any financial account that has a named beneficiary or joint owner, or
- Any property owned jointly with another surviving individual as community property with the right of survivorship or joint tenants.
The problem with intestate succession and probate in California.
The problem with intestate succession and probate in California is you are unable to decide how your property will be distributed, the process is lengthy and expensive, and all proceedings are public record, making your estate is available to any creditors who want to claim your property. When it comes down to it, with intestate succession, you don’t get to make any decisions about how your estate is distributed. The government makes all of those decisions for you.
The good news is that with proper planning, we can avoid this scenario and make the process as easy as possible for your loved ones. If you have any additional questions about estate planning in California, please feel free to reach out to our office, the McGovern Law Group.
