Law review: What happens if you die without a will? |

Law review: What happens if you die without a will?

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. That’s my take.


What happens to your property if you die without a will or a trust, which we lawyers call dying “intestate?” 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 or a trust.


Let’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 — top to bottom — of where your property goes. Follow along:

1. To the decedent’s (dead person’s) children, who share equally.

2. If there are no children or children’s children living, the estate goes to the decedent’s parents.

3. If there are no living parents, the estate is distributed to the “issue of the parents,” which means to the decedent’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 decedent’s grandparents inherit the property.

5. If there are no living grandparents, then the decedent’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 — my feeble attempt at humor).


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 — 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 co-mingled 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.


Here’s where the intestate dead person’s community property goes — remember, no will or trust:

1. The decedent’s community property goes to the surviving spouse (who already owns the other half of the community property).

If you die without a will or trust, 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 decedent’s half will go to the other owner — not to the heirs.

Today’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 licensed in California, with offices in Truckee and Tahoe City, and Reno. These are Jim’s personal opinions. Jim’s practice areas include real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or


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