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Laws of Intestacy in California - Werner Law

Laws of Intestacy in California

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: May 10, 2022

Intestacy laws determine who gets what after death, if no valid last will and testament was left behind. Intestacy refers to dying intestate, or without a testament of one’s final wishes regarding the contents of one’s estate. In general, intestacy laws dictate the succession in which a person’s relatives inherit their assets and personal property. […]

Intestacy laws determine who gets what after death, if no valid last will and testament was left behind. Intestacy refers to dying intestate, or without a testament of one’s final wishes regarding the contents of one’s estate.

In general, intestacy laws dictate the succession in which a person’s relatives inherit their assets and personal property. Every state has its own probate laws and associated intestacy laws. This means succession is a little different from state to state. Even when states share certain laws – such as California and Texas both being community property states – there can be significant differences in the way an estate is inherited after death.

Intestacy Succession in California

Intestacy succession in California can be summarized as follows: 

  •   If you leave behind children and no spouse, your children get everything.
  •   If you leave behind a surviving spouse but no children, your spouse gets everything.
  •   If you leave behind no children, siblings, or spouse, but your parents are alive, your parents get everything.
  •   If you leave behind no children, parents, or spouse, but your siblings are alive, your siblings get everything.
  •   If you leave behind a spouse and one child/grandchild, your spouse inherits all community property and half of the remaining estate.
  •   If you leave behind a spouse and more than one child/grandchild, your spouse inherits all community property and one third of the remaining estate (the rest goes to your children/grandchildren).
  •   If you leave behind a spouse and parents, but no children, your spouse inherits all community property and half of the remaining estate.
  •   If you leave behind a spouse and siblings, but no parents or children, your spouse inherits all community property and half of the remaining estate.

The rules for spouses also apply to domestic partners in California. If you are legally separated but not divorced, your spouse may not be entitled to their share of the estate. 

While the concept and execution of intestacy laws remain the same in most states, there are state-to-state differences. Intestacy laws in California are different than intestacy laws in New York State.

For example, California is a community property state, while New York is not. This can have an impact on how an estate is divided after death, as nearly all property obtained during marriage is co-owned by both spouses, meaning the surviving spouse claims all community property, in addition to their portion of the estate. 

In New York, on the other hand, the surviving spouse inherits either everything, or if there are children, the surviving spouse inherits half of the total balance of the estate and the first $50,000. 

Intestacy laws can get confusing when properties are owned in multiple states. When managing an estate, it is always in your best interest to coordinate with a legal professional, and an estate planning professional. 

When Are Intestacy Laws Relevant? 

Intestacy only becomes relevant when there is no will. If a person dies without a will, then a probate court must follow the state’s intestacy laws in the distribution of their probatable assets.

This also includes lost or invalid wills. If a will was created through coercion or faked, for example, and no other will exist, then the estate is distributed as per intestacy laws.

On paper, many people would agree with the way intestacy laws divide an estate. But there is no way to truly know whether you’d be happy with the way your estate is divided upon death without taking matters into your own hands. 

Intestacy laws may divide your estate equally among your children, without consideration for whom gets what, or which child took care of you the most throughout your twilight years. 

Even if you have a poor relationship with your parents and are estranged with them, they will be prioritized over your closest friends if no other relatives remain. 

When intestacy laws take the wheel, your estate may be brutally divided and distributed without consideration for what you may have wanted – because without a valid will, the probate court has no real knowledge of what your wishes might have been. Wills are simple to create and notarize – and it pays to review and redo your will every few years. Don’t wait until it’s too late. 

What About Trusts and Other Estate Plans?

There are limits to what goes through probate, which means that not everything is subject to intestacy laws. If you do not have a valid will, but you do have certain other estate planning measures in place, those will take priority.

For example, a trust is a legal entity that holds assets and properties “in trust” for a beneficiary, through the management of a designated trustee. Anything in a living trust is placed within the trust while you are still alive.

While a revocable trust lets you retain ownership rights and keeps the value of the asset within your estate, the trustee’s job is to oversee the distribution of the asset to its rightful beneficiary – as per your instructions – upon your death or incapacity. The asset does not pass through probate and is not subject to intestacy laws.

The same goes for other properties and assets with designated beneficiaries. If a bank account is labeled “payable upon death” to your nephew, the remainder of what is on your account will be transferred to your nephew’s bank account upon your death, rather than the coffers of the estate. Properties with a transfer on death (TOD) deed are transferred to their designated beneficiary as well.

Some things cannot be passed on through a will in the first place. The remainder of a retirement savings account, the proceeds of a life insurance policy, or property held in joint tenancy with a surviving co-owner will automatically pass on to the respective owners or designated beneficiaries upon death – no probate, no intestacy laws. 

What If There Are No Surviving Relatives? 

If you die without a will and no surviving relatives, the contents of your estate will be held by the state for a period of time until an heir is found, or someone claims their inheritance. This is known as escheatment.

While the Office of the California State Controller allows visitors to search through a database of unclaimed properties, most of these are reported by businesses on accounts or clients who have gone inactive for long periods of time, rather than property escheated through probate. It is very rare for the government not to find someone related to you after you die.

Without a comprehensive estate plan, the division and distribution of your assets is out of your hands after death. Wills, trusts, and other estate planning tools help you assert control over who gets what, and lets you ensure that your loved ones receive what they are entitled to, including distant relatives and friends.


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