What happens if I die without a will or trust?

 In Blog, Estate Planning

In light of the recent tragic death of Prince, it’s helpful to look at the ramifications of an unfortunately common occurrence: Someone dying without a will or trust in place. The pop superstar left an estate valued at $300 million, but he did not have a trust, and no will has been found. If it’s true that he did not have an estate plan, then his estate will be distributed according to the laws of intestacy.

The term “intestate” refers to the condition of not having a will when one dies. A will (or a trust) would otherwise dictate what happens to a person’s property at death. Without one, the probate court will essentially split the property among certain surviving relatives.

In California, where your property goes depends on 2 factors: 1. Who your relatives are at the time of your death (those who end up inheriting your property are called your “heirs”), and 2. Whether the property is separate or community property. California is a community property state, which means that most property acquired during marriage belongs to both spouses jointly (unless certain exceptions apply).

With this in mind, here are some important intestacy rules to know that may affect where your property ends up when you die:

  • If you are married, your spouse inherits your half of the community property.
    • So, for instance, if you and your spouse own a house as community property, your spouse gets the entire house when you die
  • Your spouse gets everything (separate and community property) if you have no children, parents, or siblings
  • If you have a spouse and 1 child, each will get 1/2 of your separate property (spouse gets the community property)
  • If you have a spouse and more than one child, your spouse gets 1/3 of your separate property and your children get the remaining 2/3
  • Your children get everything if you have no spouse, parents, or siblings
  • Your parents get everything if you have no children, spouse, or siblings
  • Your siblings get everything if you have no spouse, children, or parents
  • If you have no siblings, your spouse and parents split your separate property
  • If your parents are gone, your spouse and siblings split your separate property
  • Your legally adopted children inherit just like biological children
  • If your biological children were adopted by someone else, they generally do not inherit from you (there are some exceptions)
  • Foster children and stepchildren may inherit, depending on the nature of the relationship
  • Children in utero at the time of your death inherit their share
  • Children conceived after your death with your genetic material may be able to inherit, depending on the circumstances

The rules get more extensive and complicated if your heirs are more remote relatives. If no heirs are found, ultimately your property will go to the state of California.

If you want to avoid the potential complications of intestacy, you should draft an estate plan to direct the disposition of your assets. At the very least, everyone should have a will, but most people can also benefit from a living trust. Even if your assets would be distributed in the same way, you still need an estate plan. Without one, your loved ones will have to go through the long and tedious probate process before they would be able to receive those assets.

Helix Law Firm can help draft a will or living trust

The estate planning you do now can make a huge difference in the lives of your loved ones after you’re gone. We can help you draft an estate plan that provides for them and avoids the hassle of probate.

If you’re interested in learning more about how Helix can help, please call us at (619) 567-4447 to schedule a free consultation.


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