What Happens If You Die Without a Will?

So what happens if you die without a will? This may have been a question in your mind for quite some time now.

Read further to find out the answer.

Introduction

Each one of us knows how important it is to plan for the future — the one that is going to exist after we are gone. We know that we need to have things put in place so that our loved ones are taken care of and our assets go where we want them to so that everyone will be ok.

There are many different ways to handle your estate planning, though it often comes down to having a will or a trust put in place.

So, what happens if you die without a will? What happens if you thought you still had time to handle your estate planning, but time ran out too soon? 

Intestate: Defined

In California, intestate – or dying intestate – is the legal term or phrase for a person who dies without an estate plan. Without a will, the state has to have a plan to handle the decedent’s estate. And it comes down to the California Laws of Intestate Succession in order to determine the inheriting heir.

Narrowing down the familial status and such of the deceased individual can help narrow down who this heir is. Once it can be determined, this court will monitor the transfer of the estate to this person as it all goes through the probate process.

What is Probate?

When you die, the legal process to handle the distribution of your estate is called probate. If you have a will, this will be the time when the courts will review it to determine its validity and authenticity.

During the probate process, any financial situations with outstanding debt and creditors will be cleared up and the property and assets will be distributed either according to your will, if you have one, or according to the intestacy laws of California.

The entire probate process can take a long time to go through – sometimes even over a year. This ties up all your assets and often leaves your family without access to them. This is why it is so important to consider estate planning.

Discuss your options with an attorney as even having a will does not always guarantee that your property will stay out of probate.

How Asset Distribution is Decided By the Court

As we discussed, the California Intestate Succession is responsible for guiding the courts in asset distribution. It follows these guidelines:

If the decedent was married:

The courts will determine which property is community property and which is not. According to the community property laws in California, there is a legal presumption that property acquired during the marriage is considered community property. Property acquired before the marriage, inherited, or purchased with separate funds is separate property. Just so that there is no question, the remaining spouse can complete the California Spousal Property Petition.

If survived only by a spouse, the spouse receives 100% of both the community property and the separate property. However, if there are surviving children, parents, siblings, and other heirs, the separate property will be equally divided among everyone.

If the decedent was unmarried:

If the decedent does not have a spouse at the time of death, then there is no community property to be shared. Rather, the property would then be distributed in the following way:

• If there are lineal children, grandchildren, great children, and so on, then 100% of the property will be divided, with equal shares amongst those in the same generation.
• If a parent or both parents are alive, they will receive 100% of the property, if no lineal children, etc.
• If there are siblings, but no parents or lineal children, then 100% of the property will be divided amongst the siblings (with percentage based on the degree of kinship).
• If there are grandparents, but no parents, lineal children, or siblings, then 100% of the property would be shared with them or equally divided amongst the lineal children of the grandparents.
• As this progresses, the generation with the oldest surviving children will be the ones who will inherit the property if there are no living spouses, parents, children, or siblings.
• If there are lineal children from a predeceased spouse, and no surviving lineal children, parent, grandparent, etc. then the lineal children of the predeceased spouse will receive 100% of the property, divided in equal shares based on kinship.
• If there are parents of the predeceased spouse or children of the predeceased, with no surviving lineal children, parent, grandparent, etc., then the parent of the predeceased spouse will receive 100% of the property, divided in equal shares based on kinship.
• Finally, if the next of kin is living, and there are no surviving lineal children, parents, grandparents, or predeceased spouse, then the next of time will receive 100% of the property, divided in equal shares based on kinship.

Assets Exempt from the California Intestate Succession

There are certain pieces of property that are exempt from having to go through the probate process. In general, it comes down to the way in which the assets are titled. For instance, those accounts that are held jointly with another party or those that have a beneficiary listed.

This can include:

• Bank accounts held jointly.
• Property jointly owned.
• Life insurance policies.
• Retirement accounts with a designated beneficiary.

Hire a Lawyer, Plan Your Estate

Having a simple will in place does not necessarily keep your property out of probate. And, it is quite likely that what the state decides to do with your property after you die doesn’t coincide with what you would have intended.

Don’t let this happen to you. Hire a lawyer now and begin your estate planning. Life is short and it can be gone in an instant. Preparing today for your future ensures that everything you have worked for in your lifetime lands in the hands of the exact person you choose.

Of course,  you want to make sure it is done properly and legally — so having an attorney on your side to handle drawing up the documents and discussing your exact wishes can give you the confidence that what you want to happen after you are gone, will.