Jim Porter: What happens to your property if you die without a will?
Special to the Sun
TRUCKEE/TAHOE, Calif. and#8212; There are all sorts of reasons to have a will or a trust. You can sometimes avoid probate, you can specify where you want your property to go, you can choose guardians for your children, save taxes, avoid family bickering, and on and on.
At a minimum, if you have assets or children you should have a will or a trust. Thatand#8217;s my take.
What happens to your property if you die without a will or a trust, which we lawyers call dying and#8220;intestateand#8221;? Do your assets automatically go to the Great State of California? Thankfully no. The California Probate Code has a series of statutes on intestate succession starting around section 6401. Those codes spell out in considerable detail what happens to your property when you take your leave without leaving a will.
When not married
Letand#8217;s keep this simple. Here are the rules if you die intestate (no will or trust) and you are not married. There is an order and#8212; top to bottom. Follow along:
1. To the decedentand#8217;s (dead personand#8217;s) children, who share equally.
2. If there are no children or childrenand#8217;s children living, the estate goes to the decedentand#8217;s parents.
3. If there are no living parents, the estate is distributed to the and#8220;issue of the parents,and#8221; which means to the decedentand#8217;s brothers and sisters, and if they are deceased, then to their children.
4. If there are no brothers or sisters or their kids, the decedentand#8217;s grandparents inherit the property.
5. If there are no living grandparents, then the decedentand#8217;s aunts and uncles and then on to the cousins, and on and on, sometimes to distant cousins (but not as far as kissing cousins and#8212; my feeble attempt at humor).
Separate or community property
To know where your property goes if you are married when you die, you have to determine whether the property is community property or separate property. Community property are assets acquired during marriage and#8212; generally from earnings or salary. Separate property are assets brought into the marriage when the decedent got married and inheritances and gifts to the decedent during the marriage.
E.g., if after you are married you inherit property or someone gives you a car, and you keep it in your name, it is your separate property.
Remember, assets can switch from separate to community if commingled in a bank account or if both names are put on title. Bottom line, it is not always clear when property is community or separate.
Hereand#8217;s where the intestate dead personand#8217;s community property goes:
1. The decedentand#8217;s community property goes to the surviving spouse (who already owns the other half of the community property).
If you die without a will your separate property is distributed as follows, again in descending order:
1. The surviving spouse receives all of the separate property if the decedent has no
children or parents or brothers or sisters.
2. The surviving spouse receives one-half of the property if the decedent had only one child or grandchild.
3. The surviving spouse receives one-half of the separate property if the decedent left no children or grandchildren but left parents or brothers or sisters.
4. The surviving spouse receives one-third of the separate property if the decedent left more than one child.
5. The surviving spouse receives one-third of the separate property if the decedent left one child and one or more grandchildren.
6. The surviving spouse receives one-third of the separate property if the decedent left two or more grandchildren with predeceased parents.
As you can see the Probate Code spells out a defined order of who gets what if you die without a will or a trust. If you have real property held in joint tenancy, the decedentand#8217;s half will go to the other owner and#8212; not to the heirs.
Todayand#8217;s column is a gross simplification, so be forewarned. Your best bet is to discuss with a lawyer whether a will or a trust would be a good idea. You never know when it will be too late. Pun intended.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.
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