To put it simply, dying intestate means you don’t have a will. Did a close relative die without a Will? While you will encounter some complexities, if you know the rules, you can navigate them.
How will the estate be distributed in the absence of a Will? To start with, many assets aren’t passed by Will, such as:
- Life insurance proceeds.
- Real estate, bank accounts, and assets are held in joint tenancy/community property with the right of survivorship.
- Property held in a living trust.
- IRAs, 401(k)s, and retirement plans — assuming a beneficiary was named.
- Payable-on-death bank accounts.
- Stocks or other securities are held in a transfer-on-death account.
- Real estate or vehicles are held with a transfer-on-death deed or title document.
State law provides a list of folks who are eligible to fill the role of administrator — the term used in California for the person in chagre of the estate (An executor is the same as an administrator, but an executor serves if the decedent left a Will and an administrator serves if he or she left no Will). Most states make the surviving spouse or registered domestic partner the first choice. Adult children usually are next on the list, followed by other family members.
If you’ve been chosen to serve as the administrator, you’ll follow the intestate laws for inheritance rules: spouses, registered domestic partners and blood relatives inherit. Unmarried partners, friends, and charities get nothing.
The surviving spouse gets the largest share, splitting the inheritance with the children. If there are no children, the spouse receives all the property. More distant relatives inherit only if there’s no surviving spouse and there are no children. In some circumstances where no spouse or children are alive, the children of a predeceased spouse may inherit. If no relatives can be found, the assets may go to the state.
All states have rules that bar certain people from inheriting, based on past actions. For example, someone who criminally caused the death doesn’t profit from it. A parent who abandoned or refused to support a child or committed certain crimes against a child cannot inherit from that child.
There are some thorny questions you may find yourself wondering about. For example, if the couple had separated before the spouse died or if divorce proceedings had begun, the issue of whether the surviving member is still considered a surviving spouse may have to go before a court.
What about common law marriage? Not every state recognizes this — under most circumstances, California would not recognize common-law marriage. However, there is no longer any confusion about same-sex married couples; their situation is exactly the same as any other married couple, in every state.
Interestingly, couples registered as domestic partners or civil union partners and not married may not have all the rights and responsibilities of married people.
Let’s turn to children — many state statutes use the term “issue” to describe who inherits in the absence of a Will, meaning direct descendants. Legally adopted children inherit, but what about stepchildren? Not usually. Foster children? They normally do not inherit as children of foster parents. Adoption situations can further complicate the situation.
In the case of underage children requiring a guardian, the judge will have to make the decision of who will care for the minors until the reach age 18.
How To Avoid Dying Interstate:
Creating an estate plan with a qualified elder law attorney that includes a valid will that distributes all of your property to your heirs is the easiest way to avoid dying intestate.
Southern California’s Premier Estate Planning and Tax Law Firm
If you have additional questions or concerns regarding your estate plan, tax planning or controversy, probate, or elder law, contact the experienced and trusted team at Sandoval Legacy Group, A division of Holstrom Block & Parke, A Professional Law Corporation, by calling (951) 787–7711 to schedule an appointment. No other law firm in Southern California has the knowledge and experience relating to estate planning, special needs planning, elder care, probate, conservatorships, business succession planning, tax planning, and trust administration as our lawyers and paralegal staff.