When a person dies without a will or trust, their estate enters the Probate Process and becomes subject to the laws of intestate succession. This means that if you die without a will, the Probate Code determines what will happen to your estate.
Here is how the Probate Process unfolds if you die without a will or trust:
First, any children will receive equal shares of the deceased’s estate. If you have no children and your parents are still living, then your estate will go to your parents. If the parents are divorced, then half of the estate will go to the mother while the other half will go to the father. Any living siblings of the deceased will receive shares of the estate in equal amounts. The order of who receives shares of the estate are children, grandchildren, parents, siblings, nieces, nephews, grandparents, aunts and uncles, and then cousins. If there are no blood relatives, the estate will be given to the state’s government.
Assets that were acquired during the marriage are considered ‘community property’ not gifts of inheritance. All this type of property, therefore, goes to the living spouse. If the deceased is married but has no will, and the assets are the property that was brought into the marriage or acquired during the marriage as gifts or inherited assets, which therefore means they will be considered ‘separate property.’
The process for the division of separate property is very different than community property. If the deceased has a living spouse and a living child, then half of the separate property will go to the spouse and half to the child. Should the deceased have more than one child, they will all receive 2/3rds of the estate divided amongst themselves while the surviving spouse will receive the remaining 1/3rd of the estate. If the deceased was married and has separate property but no children, then the spouse will receive half of the assets while the other half will be distributed to living parents, siblings, nieces and nephews, as well as grandparents.
Starting Early is Important
The situations you just read show how difficult the division of your estate can be if you don’t have a will or trust. That’s why it is so important to start planning your estate before you become ill, begin hospice care, or reach a point in your life where you are unable to complete a will.