CALIFORNIA INTESTACY LAW

No one likes to deal with the fact that someday they will pass on. Creating a will or a living trust and a pour-over will acknowledges that fact and most people prefer to avoid this as long as they possibly can. Sometimes, people wait too long. When this happens, California law, as interpreted by the courts, decides who will get the property of the person who passed on (“the decedent”) Here are some of the laws of intestacy (passing on without a valid will). In order to make this article readable and short, I am not going into specifics but just stating the law generally. For specific information, you should contact an attorney. Section 6400 of the California Probate Code states: Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part. If the decedent was married or had a domestic partner (pursuant to a Declaration of Domestic Partnership filed with the Secretary of State). For community property: The surviving spouse receives all of the decedent’s share of community property. For separate property: The surviving spouse or surviving domestic partner will receive all of decedent’s separate property if the decedent is not survived by issue (all his or her lineal descendants of all generations), parent, brother, sister, or issue of a deceased brother or sister. The surviving spouse or surviving domestic partner will receive one-half of decedent’s separate property: if the decedent leaves only one child or the issue of one deceased child; or if the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them. The surviving spouse or surviving domestic partner will receive one-third of the decedent’s separate property: if the decedent leaves more than one child; if the decedent leaves one child and issue of one or more deceased children; or where the decedent leaves the issue of two or more deceased children. If the decedent was not married and did not have a domestic partner the property will go to: the decedent’s issue (their shares to be determined by their generation, example: children, grandchildren, etc.); if there is no surviving issue, to the decedent's parent or parents equally; if there is no surviving issue or parent, to the issue of the parents or either of them (their shares to be determined by their generation); if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent (their shares to be determined by their generation). You can see how complicated this can get. The property of a decedent without a surviving spouse or surviving domestic partner or issue or parents or brothers and/or sisters or grandparents or aunts and/or uncles can go to the decedent’s cousins. And if none of these relatives survive the decedent, the decedent’s property can go to the issue of a precedeased spouse of the decedent. Under certain circumstances, the property of the decedent can go the parents of a precedeased spouse and if they don’t survive the decedent, to their issue. One more interesting note: Under California Probate Code Section 6407, relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent. It’s clear that the only way to be sure that your property will go to the people you want it to go to is to create an estate plan which will include at least a will and better yet, a living trust with a pour-over will (it pours any property you didn’t put into the living trust before death into the living trust). Considering the amount of control the government has over you while you’re alive, do you really want them to exert even more control after you passed on. You owe it to yourself and your family to take care of your estate planning as soon as possible. The information is this article is for informational purposes only and does not constitute nor is it intended to constitute legal advice.