Intestate Succession

Someone who passes away without a will is called “intestate.” The California Probate Code provides rules for those who die intestate wherein the decedent’s property passes to his or her heirs. There are different rules that apply, depending on who is the next of kin.

Common Law Suicide

In Common Law, which is the law of England that was brought to the original colonies and later incorporated into state law, an intestate person who committed suicide falls under different rules than other intestate decedents. If a person committed suicide to avoid serving a punishment for a felony, the heirs got no property from the decedent; instead, the property would “escheat,” or go to the government. If a person committed suicide because of pain or just had no will to live, the real property (land and all that is attached) would pass to the heirs, while personal property (property other than land) would escheat to the government.

California, like most states, abolished this suicide rule. Today, the heirs of a person who commits suicide have the same rules as anyone else. Intestate suicide is the same as any other intestate death.

Community Property v. Separate Property

The California Probate Code distinguishes between community property and separate property. Community property is property accumulated after the marriage. It belongs to the “community,” which is both the husband and wife. This is applicable even if one spouse was a homemaker while the other spouse worked long hours at a corporate job.

Separate property is property that was brought into the marriage. Suppose two highly successful tech executives marry when both are well into their 40s. Prior to their marriage, each spouse accumulated a number of properties. In that instance, the property remains “separate” even upon marriage.

Note that property acquired via gifts and inheritance is separate property, even if such property is acquired during the marriage.

Chart for Intestate Succession

The California Probate Code provides that the following scheme is the order of inheritance with respect to intestate succession:

  • Spouse and no other heirs: Spouse takes all property
  • Children and no other heirs: Children take all property
  • Parents and no other heirs: Parents take all property
  • Siblings and no other heirs: Siblings take all property
  • Spouse and children: Spouse takes all community property and either ½ or a 1/3 of the separate property; children have no share in the community property and take either ½ or 1/3 of the separate property
  • Spouse and parents: Spouse takes all community property and ½ of separate property; parents take ½ of separate property
  • Spouse and siblings: Spouse takes all community property and ½ of separate property; siblings take ½ of separate property

This is only for intestate succession. If you execute a will, you generally have the option of leaving property to whomever you please.

Considering drafting a will? Setting up a trust? Speak with a Hayward Bay Area Estate Planning firm who is knowledgeable and experienced in wills and trusts. Speak with the Hayward estate planning law firm of Melanie Tavare.

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