If you die without establishing your beneficiaries in a will and/or trust, California law will dictate who inherits your estate. This is often a source of confusion because often married people just assume that their spouse will get everything or maybe that their children will get it all. In reality, without a will it’s usually a bit of both.
In California, any community property goes to your surviving spouse, while your separate property will be divided between your surviving spouse and your children. If you don’t have children, your separate property will either all go to your surviving spouse or will be divided between your surviving spouse and another relative, depending on which relatives are alive.
How Do I Know if I have Community Property or Separate Property?
California is a community property state. This means that while you live here, any earnings or income that you acquire during your marriage, and any assets that you buy with said earnings or income (absent a marital agreement saying otherwise) is community property. Assets that you owned prior to marriage, or that you acquire by gift or inheritance during your marriage, are by default your separate property. It can get a little tricky when funds get commingled, in other words, when you mix together separate and community property funds. If it’s not easy to trace, and the amount is enough that it would really matter in a sudden death or divorce situation, you may want to think about having a family law attorney help you with a post-nuptial property agreement to clarify things.
If you are married and all of your property is community property, your surviving spouse will be entitled to everything.
As to your separate property…
Who Gets My Separate Property
Scenario: If You are Married with Children
If you are married with children, your separate property will be divided between your surviving spouse and your children in the following ways:
- If you have one child, your spouse gets half and your child gets half.
- If you have two or more children, your spouse gets one-third and your children split the other 2/3 in equal shares.
In either of the above scenarios, if you have a deceased child but they left a surviving child or children, those surviving grandchildren will take their parent’s share. It starts to sound a little complicated, but essentially replace the word “child” above with “child or descendant of a deceased child.” This is what is known as per stirpes succession.
You’ll find all of these succession rules in California Probate Code Section 6401.
Please note, step-children do not count as children under the probate code unless they are legally adopted. Keep this in mind if you have a blended family and make sure you get your estate planning in place!
Scenario: If You Are Married Without Children or Descendants
If you are married without children and without any surviving descendants, then your spouse will get everything BUT ONLY IF you do not have a surviving parent, brother, sister, niece or nephew.
If you do have a surviving parent, brother, sister, niece or nephew, then your surviving spouse must share with them, in that order:
- Surviving parents get first dibs. They will get half and your spouse gets half. If you have one surviving parent, they will get the entire half.
- Siblings are next. If you don’t have any surviving parents but you do have one more surviving siblings, they will get half (split equally amongst them), and your spouse will get the other half.
- Nieces and nephews are in line after that. If you don’t have any surviving parents, and don’t have any surviving siblings, but you DO have one or more surviving nieces or nephews, they get half (split equally amongst them), and your spouse gets the other half.
Scenario: If You Are Not Married And Have Children
If you are not married but leave surviving children, then your entire estate will go equally to your surviving children and descendants of any deceased children.
Keep This in Mind if Your Children are Minors
If any of your children are minors, keep in mind that they won’t be able to receive and manage their own inheritance until they turn eighteen. The court will appoint an individual to serve as Guardian of the child’s Estate to manage the assets on their behalf until then.
Scenario: If You Are Not Married And Do Not Have Children or Descendants
In the event that you die and you weren’t married and don’t have surviving descendants, your nearest living natural heir will be entitled to your estate. Ever heard of heir hunters? This is why that exists.
Your nearest living natural heir is determined by a fun chart called the Table of Consanguinity. I had to memorize a lot of it in law school. Now, I just look at it if I need a refresher. Basically, you go down each column, and then right to the top of the next column and down, etc, until you find someone or a “class of someones” alive.
If you need to use the table to look past the first three columns, you are either a probate attorney or you really need to do some estate planning to make sure your estranged second cousin doesn’t get your estate.
If You are a Rightful Heir to an Estate, Here’s What you Need to Do
If your spouse, parent or relative dies and you are the rightful heir of some or all of the estate under these rules, what do you do? Your name won’t appear on the title by magic. The right approach will depend on who you are and your relation to the decedent.
If it’s all Community Property and You’re the Spouse
If it was your spouse that passed away, and all of the property in question is community property, you can petition the court with a simplified probate procedure called a spousal property petition. In the petition, you describe the property in question and the facts that support it passing to you as the surviving spouse. In as little as one hearing, you can get a court order to then submit to the financial institution holding the asset to get that asset transferred to you.
While a spousal property petition is simpler and less of an ordeal than full probate, it is still a very technical, paperwork-heavy process. There are still a lot of rules you need to follow, like serving proper notice to certain individuals before the hearing. While it may be possible to figure out without a lawyer using self-help assistance, utilizing an experienced lawyer who knows the local rules and quirks of the court to prepare the paperwork and appear in court for you can certainly make your life easier.
If There Are Other Beneficiaries, To Probate you Go!
If someone dies with a probatable estate and it’s not all going to the spouse, you’re likely going to need to go through a full probate procedure in order to get those funds distributed to the beneficiaries.
In order to be appointed as the personal representative of a decedent’s estate, you must be an adult, US resident, and have priority (or be nominated by the person(s) who have priority). Persons related to the decedent are entitled to be appointed in the following order:
- Surviving Spouse (unless a divorce has been filed and they live apart)
- Children
- Grandchildren
- Other issue
- Parents
- Brothers and sisters (including half brothers and sisters, but not stepbrothers and stepsisters)
- Surviving Spouse pending divorce
- Issue of brothers and sisters (nieces and nephews)
- Grandparents
- Issue of grandparents (aunts and uncles first, then cousins)
- Children of a predeceased spouse
- Other issue of a predeceased spouse
- Other next of kin
- Parents of a predeceased spouse
- Issue of parents of a predeceased spouse
- Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person
- Public Administrator
- Creditors
- Any other person (neighbors, friends, other non-relatives)
If you are one of multiple heirs and someone else petitions for probate first, you can either (a) object, and try to get appointed yourself, or (b) go with it, and you will have rights, such as notice before all hearings, copies of petitions, right to an accounting, etc. Being an administrator can be a headache and a lot of work, and while they can earn a sizeable fee, it may not be something you want to take on.
Exceptions
Keep in mind, you may not need to petition for probate or even do a spousal property petition if any of the following are true:
- The assets in question fall below the probate threshold, currently $166,250 as of the time of this writing in 2022 (in that case you can instead use a small estate affidavit);
- All assets in the name of the decedent have a surviving joint tenant or beneficiary, or enough assets do such that it results in everything else being worth less than the probate threshold value; or
- The decedent executed a valid trust and there is a general assignment that will allow the trustee to use what is known as a Heggstad petition instead of a full probate to get those assets transferred into the trust.
