Who gets my property if there is no will?
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UPDATED: Jul 16, 2021
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If a person dies without a will, known as dying “intestate,” the probate court appoints a Personal Representative, called an “Administrator” or “Administratrix,” to receive claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of that state.
The major difference between dying with a will or without one is that in a no will death, your state’s law determines the beneficiaries. With a will, your estate is distributed in accordance with the instructions provided in your will. State distribution laws vary somewhat, so check with an estate attorney.
If you are not sure why you should prepare a will, here is one example, legalese and all, which should convince you:
If the decedent was a California resident and dies without a will, California law regarding intestate succession applies to bank accounts, securities, real estate in California, and other assets. It does not apply to real property in another state where that state’s intestate succession laws apply. Succession under intestate laws differs, depending upon whether the decedent was single or married. If the deceased was single, the assets are distributed, according to the rights of inheritance, in the following order:
- Children, equally. If a child is deceased but had children, the child’s share goes to his or her children equally. If the decedent had three living children and no deceased children, each child would receive one-third of the assets. If there are two living children and one deceased child who had two children, each living child receives one-third and each child of the deceased child receives one-sixth (one-half of the third). In some but not all cases, foster children and stepchildren can inherit from foster parents or stepparents.
- If no living children, to the grandchildren, equally.
- If no children or grandchildren, to the great grandchildren, equally.
- Decedent’s parents equally, or to the surviving parent if one is deceased.
- Brothers and sisters equally (half-brothers and sisters are considered the same as full brothers and sisters) with provision that if any brothers or sisters are deceased, their share passes to their children equally.
- Grandparents, equally, or to the surviving grandparents if any are deceased.
- The descendants of grandparents, such as aunts, uncles and cousins.
- The descendants of a predeceased spouse (step-children).
- Parents or the surviving parent of a predeceased spouse.
- Descendants of the parents of a predeceased spouse, such as brother-in-law, sister-in-law or that person’s children.
- The next of kin or nearest relative.
- The next of kin or nearest relative of a predeceased spouse.
- If none of the above, to the State of California.
In addition to the above, a special provision in the California law holds that if a single person dies without a living spouse, children or grandchildren, and had previously inherited from a predeceased spouse, one who died before the deceased, anything previously inherited from that spouse goes back to the predeceased spouse’s nearest relatives. In other words, if your wife dies before you and you inherited her Mercedes Benz, and when you die, if you have no current spouse or children or grandchildren, that Benz is returned to your wife’s side of the family.
The right of inheritance for relatives of a predeceased spouse only occurs when real estate is involved and the two spouses die within 15 years of each other, or when there is personal property, defined as all assets other than real property, and both spouses die within a five-year period.
The rights of inheritance for a person who is married at death depend upon the nature of the assets owned. Assets can be community or quasi-community property, acquired during marriage either in or out of California, or separate property, which was owned before marriage or acquired during marriage by gift or inheritance. All community property and quasi-community property passes to the surviving spouse. Any separate property of the decedent is distributed to the surviving spouse or domestic partner and other relatives, depending on the relatives who survive, as follows:
- Spouse or domestic partner and children: One-half to spouse or domestic partner and one-half to one child if there is only one child. If there is more than one child, one-third goes to the spouse or domestic partner and two-thirds to the children, in equal shares.
- If there are no children or grandchildren: then one-half to the spouse and one-half to the decedent’s parents equally, or one-half to the surviving parent if one parent is deceased If there is a deceased child, the children of the deceased child take what would have been that child’s share. (If one child, as in no. 1 above, one-half, with one half still going to the spouse or domestic partner.)
- If there are no children, grandchildren, or parents of the deceased, then one-half goes to the spouse and one-half to the decedents’ brothers and sisters, equally (half-brothers and half-sisters share equally with full brothers and sisters). If there are deceased brothers or sisters, the children of the deceased brother or sister divide that parent’s share equally.
- If there are no children, grandchildren, parents, brothers or sisters, nieces or nephews, then all of the separate property passes to the surviving spouse.
If you are preparing to retire overseas, you may want to consider your will and the costs associated with your final resting place.
Do you need any more reasons to call an estate attorney today to prepare your will? You want to determine where your assets will go when you die and not leave the decision to the court.