When we pass away, our possessions and belongings must be distributed among the living. Under most circumstances, the order in which what we once owned is distributed depends on whether we left behind a will before dying. Dying without a last will and testament means dying without testament, or intestate.
Every state has its own rules and laws dictating how possessions and property are transferred when a person dies intestate. These rules make up a state’s intestate succession.
What is Intestate Succession?
Intestate succession is the order in which possessions and property in probate are distributed among the surviving next of kin.
Other rules that fall under intestate succession include the amount of time a surviving next of kin must outlive a decedent before they can inherit. If, for example, a person dies alongside their spouse, then their belongings will pass onto their children or other family members, rather than to each other.
But if one spouse survived the other for a period of time – 120 hours in California – they may still be an heir, meaning the portion of the preceding spouse’s estate that they are entitled to will flow into their estate.
What Assets are Passed Through Intestate Succession?
Intestate succession only applies to whatever is left behind and administrated through the probate process. This is important because it means that it does not apply to:
- The contents of trusts.
- Life insurance pay outs.
- Retirement account remainders.
- Accounts with designated beneficiaries.
- Properties with designated beneficiaries.
- Co-owned properties.
- And a few other examples.
The probate process is the process through which a person’s final wishes and testament are probated, or proven, in court. In the absence of a final testament, probate acts as the legal framework for the administration of a person’s estate after their passing.
A loved one or attorney is named administrator or executor of the decedent’s estate, and they are given certain powers to manage and document the process of evaluating the estate, communicating with beneficiaries and creditors, taking care of the decedent’s final financial obligations, settling costs and debts, sometimes filing the final tax return, and finally, distributing the remainder of the estate as per intestate succession.
The larger the estate, the longer the probate process. Smaller estates can be probated quickly, while estates under a certain value can even leverage a small estate affidavit to greatly expedite the process. Larger estates, on the other hand, may require a probate process upwards of a year.
In the absence of a will, anything that passes through probate is effectively distributed as per intestate succession.
Explaining Intestate Succession in California
California is a community property state. This means that any property acquired during marriage is owned by both spouses. When one spouse dies, all community property is transferred to the surviving spouse, with rare exceptions (such as foul play).
Everything owned outside of marriage is called separate property. If a person died unmarried, everything they own is separate, or individual property. Separate property is divided into different amounts depending on how many children the decedent had, if any.
If they were married with one child, half of their separate property would go to the spouse, and the other half would go to their child. If they were married with more than one child, a third would go to the spouse, while the remaining two thirds would be divided among the children in equal parts.
If a person dies without having been married and with no children or grandchildren, everything is distributed to their parents, even if they have surviving siblings. If there are no surviving parents, everything goes to the siblings. If there are no siblings, it goes one step further, to aunts and uncles, grandparents, and other next of kin.
Adopted children have the same right to intestate inheritance as biological children do, at least in the state of California, but an unmarried partner does not have the same rights as a spouse. A foster child that was never adopted usually cannot inherit, unless there is proof that you had a close parent-child relationship.
As the family picture gets more complicated, less nuclear, and more blended, things become more difficult to navigate. One of the greatest weaknesses of dying intestate is that you lose control over how your assets and belongings are distributed, and you have no way of knowing that what you leave behind goes to the people you love the most, let alone deciding who gets what.
In the very rare circumstance that there is no one left behind to claim an inheritance, your possessions will be claimed by the state.
Other Important Information
Aside from the 120-hour rule of survivorship, there are a few other intestacy rules that may play a role in the division of your estate after death. You may wonder if a half-sibling has the same right to inherit as a full sibling does, for example (they do).
If you have a relative who was born after you died (such as a child you conceived and never lived to see born), they do have the right to inherit. A cousin born after you died might not inherit any of your estate, but your unborn child would.
While it goes without saying, it should also be noted that there is a slayer rule in California. This means that any heir guilty of intentionally killing you will not receive their share.
Should You Get a Will?
Wills are perhaps the easiest way to avoid the difficulties that intestacy can present. You likely don’t even need a lawyer to get started. All you need is to be clear about your priorities and put them on paper.
With a concrete set of ideas for how you would like your estate to be divided, visit an estate planning professional and go over your options. Wills come in different shapes and sizes, and a comprehensive will can greatly reduce the stress and confusion that can arise when a loved one dies intestate. However, estate planning is more than just will writing. Consult an estate planning professional today to learn more.