Over half of all US adults do not have wills. Even among baby boomers (ages 54-71), roughly 60% of respondents have estate planning documents. It is only at around age 72 and older where the statistic jumps up to over 80% – yet as tragic as it may seem, about 20% of annual deaths occur in the under 65 demographic, meaning that a sizeable percentage of the American population is going to have to deal with the very real possibility of their entire estate going through the probate process, and their state’s intestate laws.
Regardless of your estate plans or your plans regarding inheritance, knowing what happens to a person’s belongings after their death in the absence of a legal document to clarify their will can be helpful. In California – as with the rest of the United States – a person’s death is succeeded by a probate process to determine that person’s estate, and how it should be distributed.
The 1990 Uniform Probate Code is used to determine this. This is a federal code, from which some states have built their own probate laws to tackle specific circumstances, based on previous local complications.
Explaining Intestacy Succession
In the United States, an individual’s net worth is composed of everything they own, minus any debts. When an individual passes on, this becomes their estate. The estate then is distributed among the individual’s kin, based either on intestate law or on their wishes, as per a valid legal document such as a will, a TOD/POD designation, a trust, etc.
If the decedent (person who passed away) has no estate planning documents to indicate how they wish their estate to be distributed, the estate instead passes through the probate process.
The specifics of probate – including the size of the estate, and how it affects options for an expedited process – depends on the state in which the decedent lived, and the state in which they held property. Most people only own property in the same state as their residency, but in cases where estates are composed of assets and property in several parts of the country, ancillary probate is scheduled to deal with these other bits of real estate.
By and large, intestate law declares that property passes first onto the spouse, and then onto the next of kin, in order of descendants, then parents, then parents’ descendants, and then parents’ ancestors (grandparents, grand uncles/aunts, etc.). If no next of kin or spouse exists, then the full contents of the estate will escheat to the government. This is incredibly rare, as the probate process is quite thorough and will consider even remote kin if no one else survives.
California Law When the Deceased Has No Will
California intestate laws are, like other state laws, based on the original probate code. However, there are a few additional things to consider. For one, understand that even without an extensive estate plan, you may already have estate planning tools in place. If you own a life insurance policy, chances are you have named a beneficiary for said policy – the life insurance proceeds will not pass through probate, instead going straight to the beneficiary/beneficiaries after death.
The same goes for other property and accounts with beneficiaries, including investment accounts, certain bank accounts, securities, retirement accounts, single-family homes, vehicles, and more.
Anything outside of these estate planning measures will go through the probate process as per intestate law, passing to your kin. If you are married with children, your spouse is entitled to all joint property, and up to half of your separate property. Everything else goes to the children. Without children, your spouse inherits everything. Without a surviving spouse, everything goes to the children. From there, it goes to your next available kin, first to your descendants (grandchildren, great-grandchildren), and then your parents and their kin.
If you are divorced, your spouse will not inherit the property. If you are legally separated but not divorced, they will not inherit your separate property. If you are split but not legally separated or divorced, they will inherit a portion of your separate property. Very simple estate planning tools can help you keep your property away from an alienated spouse.
Adopted children are treated just like biological children according to intestate laws, but the same does not apply to stepchildren and foster children, unless they can prove in probate court that they had a significant parent-child relationship with you, and provide evidence or cause that, had it been legally possible, you would have adopted them.
If you have a child who is born after you die, they are also entitled to a share of your estate.
Other things to consider include the fact that if your relative dies with but after you, their estate only inherits a portion of your estate after 120 hours. Otherwise, your estates remain separate. If your relative is convicted of killing you with intent, then they do not receive any share of your estate.
The Case Against DIY Wills, Other Legal Documents
Do-it-yourself (DIY) legal documents have become incredibly popular as of late, especially for simpler documents. They offer customers the opportunity to subvert the usual costs of hiring an attorney to help draft and advise on certain matters.
The pros are simple. Lower upfront cost, and less hassle. But the cons are far more significant. Even something as relatively simple as a last will and testament requires an in-depth understanding of local estate law, and the exact circumstances behind an estate.
For more complicated estates with larger tax rates and serious management costs, other estate tools exist to create a smooth inheritance process – with the added caveat that it is neither easy nor simple to prepare these tools without years’ worth of knowledge and experience.
Regarding cost, it is true that it is generally cheaper to purchase an online template than it is to hire an attorney to draft estate planning documents. However, the while the short-term costs show a clear victor, the long-term costs make DIY tools far less palatable. Even a single clerical error can lead to thousands and thousands of dollars in legal fees, as many have experienced. Law firms and independent lawyers specialized in will drafting, living trusts, and other various estate planning services may charge more than the average legal service online, but the difference in safety and quality speaks volumes.
Before you make a choice, consider also that even the most sophisticated online portal for legal documents make it clear that their documents and articles are in no way a replacement for the work and advice of legal professionals – who have had a long and hard look at your estate, and your possibilities.
It is unethical and illegal to dole out legal advice without establishing a client-attorney relationship, and any legal information accrued online serves to help clients better inform themselves on the broad details of estate planning, before approaching a professional for the more specific input necessary to begin the estate planning process.