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How property is distributed in California when there is no Will

While it is true that most people know what a will is and the importance of doing one to pass on your properties from generation to generation, most families don’t know how property is distributed in California when there is no Will.

There are multiple options available for a legal estate succession. Your children or beneficiaries can inherit your estate in California following the legal procedures, the most widely used are Wills and Living Trusts.

With a Will, you tell the court what you want to happen with your estate after you pass. Your home and the rest of your estate will go through probate, a court-supervised process where a judge distributes your assets.

Now, if you want to avoid probate and pass your estate directly to your beneficiaries, a California Living Trust is the way to do it. Living trust forms are available online for you to fill out, and they provide the added benefit of avoiding probate. They create a legal entity that holds title to your property and allows it to be transferred to your beneficiaries through a Trustee that you designate yourself. Living Trusts avoid the expensive and lengthy probate process.

For more information, you can visit the California Revocable Trust requirements.

How property is distributed in California if there is no will, i.e. laws of intestate succession:

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
  • Children of surviving spouse:
    • All of your community property to your surviving spouse, and
    • If only one child, then one-half (1/2) of your separate property to your spouse and the other one-half (1/2) to your surviving children according to their per stirpes share
    • If more than one child, then one-third (1/3) of your separate property to your surviving spouse and the other two-thirds (2/3) to your surviving children according to their per stirpes share
  • Children not of the surviving spouse (for example your children from a previous marriage):
    • One-half (1/2) of your community property, one-third (1/3) of your life estate in separate property, and one-third (1/3) of your life estate in personal property to your surviving spouse, and
    • the other one-half (1/2) of your community property, two-thirds (2/3) of your life estate in separate property, and the other two-thirds of your life estate in personal property split equally among the surviving children or to their children according to their per stirpes share
  • No children and both of your parents of deceased:
    • All of your community property, one-half (1/2) of your separate property, to your surviving spouse, and
  • The other one-half (1/2) of your separate property to your siblings equally or to their children according to their per stirpes share. If no siblings, then all to your surviving spouse
  • No children, but at least one of your parents survives you:
    • All of your community property and one-half (1/2) of your separate property to your surviving spouse, and
  • The other one-half (1/2) of your separate property split equally among your surviving parents
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) or to their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 21620), andChildren, born or adopted, and grandchildren of any deceased child (Section 21610)
    • Surviving spouse must be given one-half (1/2) of your community property (Probate Code Section 100)
  • Children, born or adopted, and grandchildren of any deceased child (Section 21610)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced surviving spouse, unless will expressly provides for divorced surviving spouse (Probate Code Section 6122)
  • You get married without changing your will that does not provide for your new spouse:
    • Revokes will as to surviving spouse, but surviving spouse may still be entitled to shares under state intestate law (Probate Code Section 21610)

Witnesses:

  • Minimum number of witnesses required: Two (Probate Code Section 6110); If patient is in a skilled nursing facility, then a third witness who must be a patient advocate or ombudsman (Probate Code Section 4701)
  • Are witnesses allowed to be beneficiaries?: Yes (Probate Code Section 6112)
  • Requirements to be a witness, witnesses must:
    • Be an adult,
    • Not be appointed as your agent, healthcare provider, an employee of your healthcare provider, operator or employee of a residential care facility for the elderly,
    • not be related to you by blood, adoption, or marriage,
    • not be entitled to anything in your will, and
    • If patient is in a skilled nursing facility, then a third witness who must be a patient advocate or ombudsman (Probate Code Section 4701)

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