What Happens When a Person Dies Without a Will or a Trust? What is intestate?

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    When you pass away who will inherit your assets/your estate is dependent on a number of factors. One of the most important factors is how your assets are titled. If the asset was in a trust – it will be controlled by the terms of that trust. If the asset was held jointly with another person then it might be subject to the terms of that joint ownership and pass to the co-owner. If the asset had named beneficiaries as many life insurance and retirement accounts do then it will pass to those people.

    If you pass away and you have assets just in your name alone, without a will to say otherwise your estate will be subject to the laws of intestate succession.

    Under the Probate Code without a will who is entitled to your estate is spelled out in very particular detail. It is referred to as the Law of Intestate Succession. It will depend upon if you were married or not at the time of your death and if you were married it will depend upon the character of the property.

    A single person’s estate would pass to the following groups of people in the following order:

    1. If you had children – it will go to your children in equal shares. If any of your children predeceased you their portion would drop down and be divided equally amongst their surviving children and so on.
    2. If you were single but had no children then your estate will go to your parents. Even if your parents have divorced one half goes to your mother and one half goes to your father, or the survivor of them.
    3. If you are not survived by children or parents then your estate would go to your siblings in equal shares.

    The general order of succession for a single person is Children; Grandchildren; Parents; Siblings; Nieces and Nephews; Grandparents; Aunts and Uncles; Cousins and so on. At a certain point – but it does take awhile – without any living blood relatives your estate will escheat to the State of California.

    If you are married when you die without a will then the first question is what is the character of the property?

    Your community property – assets acquired during your marriage and not by gift or inheritance – will pass by intestate succession 100% to your surviving spouse.

    If you are married and you have no will and the character of the assets in question is your Separate Property – ie assets you brought to the marriage and kept separate or assets you acquired during your marriage by gift or inheritance will be divided as follows:

    If the decedent had 1 child then the asset will go ½ to the surviving spouse and ½ to the surviving child.

    If the decedent had more than one child then the asset will pass 1/3 to the surviving spouse and 2/3rds in equal shares to all the decedent’s children. So even if the decedent had 10 children the surviving spouse would receive 1/3 and the 10 kids equally share the remaining 2/3rds.

    If the decedent was married and had separate property but never had children or was not survived by children -then the surviving spouse will receive ½ and the other ½ will be distributed as described above – ie to the parents; siblings; nieces and nephews; grandparents; etc.

    This is why it is so important to make sure that you have created a comprehensive estate plan. Even just having a will to document WHO you want to inherit from you is an important minimum step. If you die intestate it will not matter what you told your family, friends and loved ones about who you wanted to leave your estate to. The law is the law and the only way to have your estate distributed to who you want and how you want is to create at minimum a will based estate plan and for reasons clarified in other notes more likely in a trust based estate plan.

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      1. I have read countless articles on this topic, yet not a single one addresses the issue of divorced parents. As you know, since nearly 50% of marriages end in divorce, it would be helpful if someone would outline this law for the other half of the population.

        • Actually – this article does address what happens to a single person’s estate if they did not have an estate plan. Single can be due to – never marrying; divorce or widowhood… Thanks

      2. angelique says:

        If my mother divorce and I’m her daughter how do I become a poe or executive???? I don’t believe she had a will

        • If your mother is alive – she needs to actively create legal documents in order for you to hold one of these roles. If she is not alive or not competent then you would apply through the court processes to help her or settle her estate.

      3. Don Siedenburg says:

        The question is: My wife passed away in a nursing home without a will. She has
        three live children from her first marriage and one child who is deceased. We were married for 30 years. I have initiated a negligence lawsuit through my attorney against the nursing home where she spent her last two years. It’s title is Estate of Siedenburg vs Shabbona (Illinois) Healthcare Center. If this suit be successful how shall the proceeds be divided after the State of Illinois Medicaid Department’s balance is satisfied.

      4. What happens if a person took over payments of her father’s house when he died, then a year later that person died…she had 3 kids, one 16 by one father 2 under 10 by another father…the house still has a good chunk left to pay on the mortgage. Can the ex with the 2 kids take the house?

        • As with most things – the answer is – it depends. The house still belongs to the predeceased father’s estate. His estate needs to be probated. If he only had the one heir then yes – her children will succeed to her interest. However, if the predeceased father had other heirs-at-law then the house will pass to them in proportion to their interest and the children will only succeed to their mother’s portion. The spouse or ex-spouse of the deceased mother have no legal rights unless she had a valid will leaving them something.

      5. If someone purchased vehicles with inheritance and titled the assets in his name only, and died without a will, are the vehicles Community or Separate property?

      6. Generally speaking if the one who died without a will was separated for 6+ months and initiating divorce proceedings…a lawyer was given money and the paperwork was in some degree completion….can that be taken into consideration in determining heirs. Separated spouse is not the surviving child’s biological mother. Thank you for sharing your knowledge.

        • Thank you for your question and your patience. A married couple is a married couple- until such time as a court order says otherwise. Therefore, even though the divorce was started – unless they had binding agreements about assets or inheritance rights OR there was a court order putting them back to their single status – then the decedent left a surviving spouse. What rights that person would have would depend on many factors; including – did the deceased have a valid will; what was the character of the assets the deceased owned; did the deceased have any surviving children; etc.

      7. So I live in NJ. My 3rd cousin from California died without a will. The estate sold for 2.4 million. My question is …How much will the state take out in taxes since my cousing didnt have a will?>>>>

        • Jim – there will be no estate or inheritance taxes in California – as California currently has no State Estate Tax law nor an Inheritance tax. The estate itself may need to settle up Income Taxes of the deceased, but those expenses come from the estate as a whole. Lastly, whether or not the great state of New Jersey will impose a tax on your inheritance is unknown by me as I am only licensed in CA. I suggest you speak to a knowledgeable CPA in your area. Thanks – Jen

      8. What would happen if a mother passed, had two surviving kids, but the older one is in prison? Who all the money go to the child who isn’t in prison? or would it still be equally distriputed?

        • The answer depends. Many states have laws that mandate that the incarcerated person’s share be offered to victim’s compensation or similar requirements. The person administering the estate should seek legal advice.

      9. CALIFORNIA: Married man purchased property as Single man sole and separate property during the time he was not living with wife. The wife never lived on the premises after his purchase. He later quit claim deed the property to Himself And a another woman. The wife went to probate court and was granted 75% ownership of the property. He has surviving children prior to his marriage whom where not granted anything. Is she really entitled to 75% of the property if he acquired while they were separated. They did not obtain a legal separation through the court just have not lived together for 20 years. Is his children entitled to anything?

      10. Kyle Bradshaw says:

        If your dad passes of cancer and your stepmother tells you he had no will. How are you to know if he has separate assets that would be divided?

        • Thank you for your patience. The answer is it depends… Basically you would have to gather information about his assets and see how he held title to them. If it is real estate then those records are public records and you could obtain a title report or similar report to determine how he owned it. If it is bank accounts, investment accounts etc. then it will be more difficult unless you have or had access to that information from him. If you have information that you strongly believe means that he did have substantial separate property just in his name then you would want to consult with a estate litigation attorney in your area to determine your rights and how to best protect your rights. Good luck

      11. i understood above. to be sure, however if a husband who chooses to have no will, in order to punish his wife: cars and home go to her because of co-ownership on papers/deeds; business goes to business partner with corporate 50/50 sub-chapter S; all remaining assets, bank accts, stocks, investments without designated beneficiaries, etc., and solely in his name, go to wife 1/3, three children 2/3. after probate/taxes,etc. yes?

        • Sorry for the delayed reply. The answer to your question is a little more involved. Title is a presumption – ie if something is held WITH another person then if in joint tenancy or community property – the presumption is it passes to the survivor, that presumption can be overcome if the facts are in support of a different result. If title is solely in one person’s name then the presumption is it is their separate asset. HOWEVER when people are legally married or registered – then what will really happen to that asset is dependent on is it the title holders Separate Property or is it really Community Property. IF it is really Community Property then without a will or trust saying otherwise it would all pass to the spouse but he or she would have to do paperwork to make it so & that paperwork might have to go through probate court.

      12. What if someone was single before and made a trust and have benefeciary. Then, he got married later on, is the recent spouse will have no benefits if a person died?

        • If the person who made the trust did not amend or update it after the marriage and then passed away leaving that spouse surviving – then the surviving spouse is considered an omitted or pretermitted spouse and they can file a claim to take against the estate. How much they may be able to claim will depend on many facts. If the person updates their estate plan to show that they are now married then the surviving spouse is not considered omitted.

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