Trusts, Estate Planning & Probate
Matters relating to wills, trusts and other devices to dispose of property during lifetime and at death, including the process of administering estates for individuals who die with or without wills, and procedures used to protect assets against claims of creditors.
Estate Planning – One of the most frequently asked questions is: “What happens if I die without a will?” A person dying without a will is subject to Probate Code Section 6400. In effect, this statute states that should any person die without a will, the property passes according to the statutory scheme. The following exemplifies the effect California law would have on a person dying without a will.
Please note that the examples which follow should not be used as a definitive answer to any person’s legal situation. These examples should not be taken as a substitute for legal advice in any way. They are merely a method of illustrating the effect a lack of estate planning can have. Be sure to consult with qualified attorneys.
Person Married with No Children
Person not married with Children
Married with No Children
Surviving spouse takes one-half of community property. Probate Code Section 6401(a).
In other words, any property that can be classified as community property (property acquired during marriage), the other spouse inherits the entire property. For example, a house is purchased is during marriage with community funds. Husband dies. The surviving wife inherits his one-half interest in the house and has her one-half interest as well. She now owns the entire house.
As for the Separate Property, that passes entirely to the spouse if the decedent did not leave any children, parent, brother, sister, or any nephews or nieces. Probate Code Section 6401(c)(1)
The surviving spouse inherits one-half where decedent leave only one-child, a parent or that parent has another child. Probate Code Section 6401(c)(2)
Finally, where the surviving spouse inherits one-third where the decedent leaves more than one child; or has one child and grandchildren of a pre-deceased child; or has grandchildren by two or more pre-deceased children. Probate Code Section 6401
Unmarried with No Children
Shares pass equally to Parent or Parents. Probate Code Section 6402(b)