What happens if you pass-away without a Will?
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Intestacy laws come into play when a California resident passes away without leaving a will or trust. The person dies “intestate” and the laws of intestate succession are used to determine who will inherit their estate. In determining heirs, the first question to answer is whether or not the decedent (the person who died) was married.
When a deceased party has property it will be distributed according to statutes, primarily by the law of descent and distribution and others dealing with marital property and community property (all going to a surviving spouse). In probate the administration of the estate of a person without a will is handled by an administrator (usually a close relative, the spouse, a close associate), or a public administrator if there is no one willing to act, since there is no executor named in a will. The administrator must petition the court to be appointed and must post a bond from an insurance company guaranteeing that it will pay the value of the assets he/she/it may steal or misuse.
Intestate succession is a legal procedure used by a California probate court decides who is entitled to share in a deceased person’s estate because the deceased person either did not leave a valid Will or Trust or did not include their entire estate in a Will or Trust.
If the decedent was not married, California Intestacy laws provide that the decedent’s estate to be distributed as follows:
- Decedent’s issues (children, grandchildren, great-grandchildren) who are of the same generation take equal shares.
- Decedent’s parents take decedent’s estate if there are no living issues.
- Issue of parents if there are no living parents – decedent’s brothers and/or sisters will inherit the estate. If there are deceased brothers and sisters, and they had issues, those issues will inherit the share of the estate that the deceased brother or sister would have inherited.
- Decedent’s grandparents will inherit the estate if decedent has no brothers or sisters.
5. Issue of the grandparents will inherit the estate if there are no living grandparents – decedent’s aunts and uncles.
- Decedent’s cousins will inherit if there are no aunts and uncles.
- In general, the oldest generation that has surviving issue will inherit, but if there are deceased issue in that generation, their issue will inherit their share.
- Decedent’s next of kin in equal degree will inherit if decedent has no cousins.
Decedent’s community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership.
Decedent’s separate property is distributed as follows:
- The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or sister.
- The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
- The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
- The surviving spouse receives only one-third of the separate property if the decedent left more than one child.
- The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
- The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.
The surviving spouse takes the decedent’s entire estate, 100%, if there are no surviving children. The decedent’s property that is not passed to the surviving spouse it is distributed in the following order:
- Equal shares to children.
- Equal shares to parents.
- Equal shares to siblings.
- Equal shares to grandparents.
- Equal shares to issues of grandparents.
- Equal shares to next-of-kin by degree of relationship.
- To the State of California.
Surviving Spouse Share
The surviving spouse receives all of decedent’s community property and part of separate property. The remaining separate property will be distributed to children, grandchildren, parents, grandparents, siblings, nieces, nephews or other close relatives.
If the decedent was not married, the assets will be distributed to the next-of-kin in the order described under Intestacy Distribution. The court will ultimately decide who gets your estate and how to divide it if you die without a valid Will.
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