If someone dies without a will or trust, he or she dies "intestate" and the laws of intestate succession are used to determine who will inherit the decedent's estate (tangible and intangible property) that is not subject to non-probate transfers such as POD bank accounts and real property held in joint tenancy. This determination is made by analyzing the decedent's familial background.
A. The first question is whether the decedent (the person who died) was married at the time of his or death.
1. If the decedent was not married at the time of his or her death, the estate is distributed as follows:
a. To the decedent's children, who take in equal shares if they are in the same generation.
b. If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents.
c. If there are no parents living, the estate is distributed to the "issue of the parents." If the decedent had siblings, they will inherit the estate.
A. The first question is whether the decedent (the person who died) was married at the time of his or death.
1. If the decedent was not married at the time of his or her death, the estate is distributed as follows:
a. To the decedent's children, who take in equal shares if they are in the same generation.
b. If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents.
c. If there are no parents living, the estate is distributed to the "issue of the parents." If the decedent had siblings, they will inherit the estate.
d. If there are no siblings, the decedent's grandparents will inherit the estate.
e. If there are no grandparents, then the "issue of the grandparents" will inherit the estate. This could include the decedent's aunts and uncles, or if there are no aunts and uncles, the decedent's cousins will take.
f. If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to "next of kin in equal degree," generally meaning more distant cousins.
B. If the decedent was married, the first question is whether the decedent owned community property, separate property, or a mixture of the two.
Community property is generally defined as the assets derived from community labor (both husband/wife) during marriage. For example, job earnings while the decedent was married would be considered community property.
Separate property is generally defined as assets brought into the marriage by the decedent, the decedent's inheritance, or gifts to the decedent. For example, if the decedent inherited $10,000 from his uncle, such would be considered the decedent's separate property.
However, California law provides many exceptions to these definitions, and assets can change from community to separate property, or from separate to community property, or from the separate property of one spouse to separate property of the other spouse. This is known as transmutation. For example, in order to transmute property from community to separate, one spouse would need to make an express declaration stating that he or she is transmuting the property from community to separate.
Ultimately, if the decedent was married at the time of death, the property will be distributed as follows:
1. The decedent's community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership. This is a much faster and cheaper version of regular probate.
2. The decedent's separate property is distributed as follows:
a. The surviving spouse receives all (100%) of the separate property if the decedent is not survived by issue, parents, siblings, nieces or nephews.
e. If there are no grandparents, then the "issue of the grandparents" will inherit the estate. This could include the decedent's aunts and uncles, or if there are no aunts and uncles, the decedent's cousins will take.
f. If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to "next of kin in equal degree," generally meaning more distant cousins.
B. If the decedent was married, the first question is whether the decedent owned community property, separate property, or a mixture of the two.
Community property is generally defined as the assets derived from community labor (both husband/wife) during marriage. For example, job earnings while the decedent was married would be considered community property.
Separate property is generally defined as assets brought into the marriage by the decedent, the decedent's inheritance, or gifts to the decedent. For example, if the decedent inherited $10,000 from his uncle, such would be considered the decedent's separate property.
However, California law provides many exceptions to these definitions, and assets can change from community to separate property, or from separate to community property, or from the separate property of one spouse to separate property of the other spouse. This is known as transmutation. For example, in order to transmute property from community to separate, one spouse would need to make an express declaration stating that he or she is transmuting the property from community to separate.
Ultimately, if the decedent was married at the time of death, the property will be distributed as follows:
1. The decedent's community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership. This is a much faster and cheaper version of regular probate.
2. The decedent's separate property is distributed as follows:
a. The surviving spouse receives all (100%) of the separate property if the decedent is not survived by issue, parents, siblings, nieces or nephews.
b. The surviving spouse receives one-half (50%) of the separate property if the decedent had only one child, or issue of a deceased child.
c. The surviving spouse receives one-half (50%) of the separate property if the decedent left no issue, but left parent(s) or their issue.
d. The surviving spouse receives only one-third (33%) of the separate property if the decedent left more than one child.
e. The surviving spouse receives only one-third (33%) of the separate property if the decedent left one child and the issue of one or more deceased children.
f. The surviving spouse receives only one-third (33%) of the separate property if the decedent left the issue of two or more deceased children.
Intestate succession is the default rule. It does not apply if the decedent had assets that fall outside of probate, a house held in joint tenancy for example, a trust or a will. Furthermore, courts are reluctant to invalidate a will so as to trigger intestate succession.
c. The surviving spouse receives one-half (50%) of the separate property if the decedent left no issue, but left parent(s) or their issue.
d. The surviving spouse receives only one-third (33%) of the separate property if the decedent left more than one child.
e. The surviving spouse receives only one-third (33%) of the separate property if the decedent left one child and the issue of one or more deceased children.
f. The surviving spouse receives only one-third (33%) of the separate property if the decedent left the issue of two or more deceased children.
Intestate succession is the default rule. It does not apply if the decedent had assets that fall outside of probate, a house held in joint tenancy for example, a trust or a will. Furthermore, courts are reluctant to invalidate a will so as to trigger intestate succession.
