If you die without a valid will, the probate court will distribute your assets in accordance with California’s intestate succession law. Intestate succession law attempts to distribute property roughly based on next of kin, except with respect to out-of-state real estate.
If you suspect that your rights will be affected by probate proceedings for someone who died “intestate” (without a will), you will need at least a rudimentary understanding of California probate and intestate succession law. You are likely to need some outside assistance as well.
What to Do When Someone Dies Without a Will
The first thing to do when someone dies without a will is to initiate probate proceedings. You do this by submitting the deceased’s death certificate to the probate court in the deceased’s county of residence. Anyone can do this. Even without a valid will, the probate court will appoint an estate representative. This person will need to take the following actions, among others:
- File a final personal income tax return for the deceased;
- File an income tax return for the estate itself;
- Pay federal estate taxes if the estate owes any (only about 0.5 percent of all estates are wealthy enough to owe estate taxes);
- Collect and inventory all estate assets;
- Pay all estate debts;
- Provide an accounting to the probate court; and
- Distribute estate assets as directed by the court (in accordance with California intestate succession law).
If the deceased owned out-of-state real estate, a court in that state will distribute it in accordance with its own intestate succession law.
Filing a Spousal Property Petition
If your spouse died intestate while you were married to them, you will be entitled to some or all of their estate. You need to file a California Spousal Property Petition with the probate court to prove that you are the spouse. You do this by filling out and filing Form DE-221, describing the property, and explaining why it belongs to you or should legally pass to you.
The Disposition of Non-Probate Assets
It is likely that not all of the deceased’s assets will go through the probate process. If the assets in question are not probate assets, the assets will pass under their own terms. The following types of property are not probate assets:
- Property held in joint tenancy: Assets held in joint tenancy, typically real estate, do not go through probate. Instead, they go to the other joint tenant(s).
- Assets in a living trust: Assets held in a living trust continue to be administered in accordance with the terms of the trust even after the death of the deceased.
- Retirement accounts and life insurance policies: Assets such as IRAs, 401ks, and life insurance policies tend to name particular beneficiaries. It is the beneficiaries who own the asset after the death of the deceased, not the person who would take it under intestate succession.
- Payable on Death (POD) Accounts: Bank accounts and other assets designated as “payable on death” revert to named beneficiaries when the deceased dies.
- Marriage/Community Property: Assets titled as community property with the right of survivorship do not go through probate. Instead, they revert to the other named spouse.
- Life Estates: A life estate is a right in real estate that is extinguished upon the death of the person who holds that right. If the deceased held a life estate, it ceased to exist at the moment of their death.
The Probate Consequences of an Intestate Death
The distribution of the estate of someone who died without a will depends on surviving relative’s relationships to the deceased. The rules can get quite complex.
If the Deceased Was Married at the Time of Death
If the deceased was married when they died, 100 percent of their community property will go to the surviving spouse (community property typically represents the majority of a married deceased’s property). The court will distribute the deceased’s separate property as follows:
- If the deceased had no children, grandchildren, parents, siblings, nieces, or nephews, the surviving spouse will take all of the deceased’s separate probate assets.
- If there is one surviving lineal descendent of a parent or parents’ issue, the separate property will be divided 50-50 between the spouse and the lineal descendent, parents, or their issue.
- If the deceased is survived by more than one lineal descendent, the surviving spouse gets one-third, while the surviving lineal descendants of the oldest generation split the rest.
- More complex rules apply if the deceased died without a spouse, children, or grandchildren.
If the Deceased Was Unmarried at the Time of Death
If the deceased was unmarried when they died, the court will distribute probate property as follows:
- The deceased’s children will split the probate property. If any of the deceased’s children died before the deceased did, that child’s children will split their deceased parent’s share.
- More complex rules apply if the deceased left no spouse or direct descendants.
Beware of Hidden Complexities
Typically, the oldest generation with surviving children will inherit the property. If the court cannot identify anyone entitled to inherit the property, the state of California will take possession of the property. Keep in mind that these rules are complex, with many subtleties and nuances.
Take Decisive Action Before It’s Too Late
Your rights might be affected by the intestacy of someone close to you. You might, for example, be someone who would probably stand to inherit under a valid will, but not under California intestacy law. On the other hand, you might be someone who would inherit under intestacy laws but not under a valid will. Either way, you are likely to need a California probate lawyer to help you make the most of your circumstances.
Fear not. The experienced California probate lawyers at Barr & Young know how to stand up and fight for your rights, both in and out of court. We won’t let anyone take advantage of you. Please feel free to contact us online, by telephone at (925) 660-7544, or by making an appointment at our offices in Danville. We meet regularly with clients from Livermore, Oakland, Pleasant Hill, Pleasanton, Richmond, San Francisco, and Walnut Creek.