Dying without a will (dying intestate), can be time-consuming, costly, and confusing for those you leave behind. Whereas making your will can be fairly easy to do and with not much time and cost involved. The following are descriptions of what happens when a person dies without a will. I hope it will inspire you to make sure you (and your spouse) each have a valid will. This will be a gift to those you care about and are leaving behind.

What are the consequences? Your state has a plan for you!

If you die without a valid will, a probate court will distribute your assets for you, in accordance with your state’s “intestate” law.

  • Each state may differ in their Intestate law.
  • Intestate succession law attempts to distribute property roughly based on next of kin, except with respect to out-of-state real estate.
  • No charities are included in intestate succession law.

If someone dies “intestate” (without a will), and you suspect that your rights regarding their estate will be affected by probate proceedings, you will need at least a rudimentary understanding of your state’s probate and intestate succession law. You may also need some outside assistance, such as a qualified probate lawyer.

What to Do When Someone Dies Without a Will

    1. Initiate probate proceedings, by submitting the deceased’s death certificate to the probate court in the deceased’s county of residence. Anyone can do this.
    2. The probate court will then appoint an estate representative. (This could be you!) This person will need to take the following actions, among others:
      • File a final personal income tax return for the deceased;
      • File an income tax return for the estate itself;
      • Pay federal estate taxes if the estate owes any (only about 0.5 percent of all estates are wealthy enough to owe estate taxes);
      • Collect and inventory all estate assets;
      • Pay all estate debts;
      • Provide an accounting to the probate court; and
      • Distribute estate assets as directed by the court (according to that state’s intestate succession law).

    Out of State Real Estate – If the deceased owned out-of-state real estate, a court in that state will distribute it in accordance with its own intestate succession law.

    California’s intestate succession law. For those who would like to know more.

Filing a Spousal Property Petition

If your spouse died intestate while you were married to them, you will be entitled to some or all of their estate. If you live in California, you need to file a California Spousal Property Petition with the probate court to prove that you are the spouse. You do this by filling out and filing Form DE-221, describing the property, and explaining why it belongs to you or should legally pass to you.

*The Disposition of Non-Probate Assets

Not all of a deceased person’s assets are subject to probate. The following types of property are not:
  • Retirement accounts and life insurance policies: Assets such as IRAs, 401ks, and life insurance policies can name specific beneficiaries. It is the beneficiaries who own the asset or a portion of it after the death of the deceased.
  • Payable on Death (POD) Accounts: Bank accounts, Investment accounts, and other assets designated as “payable on death” are paid to named beneficiaries when the deceased dies.
  • Assets in a Living Trust: These assets continue to be administered in accordance with the terms of the trust, even after the death of the deceased.
  • Property held in joint tenancy: Assets held in joint tenancy, typically real estate, do not go through probate. Instead, they go to the other joint tenant(s).
  • Marriage/Community Property: Assets titled as community property with the right of survivorship do not go through probate. Instead, they revert to the living named spouse.
  • Life Estates: A life estate is a right in real estate that is extinguished upon the death of the person who holds that right. If the deceased held a life estate, it ceased to exist at the moment of their death.

*SPECIAL NOTE: The top two underlined Assets are those on which you can name Beneficiaries. These are easy ways to leave gifts to individuals and to charities. After your death, Beneficiary designation gifts go directly to whoever you name. No probate process is involved.

The Probate Consequences of an Intestate Death

The distribution of the estate of someone who died without a will depends on surviving relative’s relationships to the deceased. The rules can get quite complex.

If the Deceased Was Married at the Time of Death

  • 100 percent of their community property will go to the surviving spouse (community property typically represents the majority of a married deceased’s property).
  • If the deceased had other separate property, the court will distribute it as follows:
    • If the deceased had no children, grandchildren, parents, siblings, nieces, or nephews, the surviving spouse will take all of the deceased’s separate probate assets.
    • If there is one surviving lineal descendent of a parent or parents’ issue, the separate property will be divided 50-50 between the spouse and the lineal descendent, parents, or their issue.
    • If the deceased is survived by more than one lineal descendent, the surviving spouse gets one-third, while the surviving lineal descendants of the oldest generation split the rest.
    More complex rules apply if the deceased died without a spouse, children, or grandchildren.

If the Deceased Was Unmarried at the Time of Death

If the deceased was unmarried when they died, the court will distribute probate property as follows:
  • The deceased’s children will split the probate property. If any of the deceased’s children died before the deceased did, that child’s children will split their deceased parent’s share.
  • More complex rules apply if the deceased left no spouse or direct descendants.

Beware of Hidden Complexities

Typically, the oldest generation with surviving children will inherit the property. If the court cannot identify anyone entitled to inherit the property, the state of California will take possession of the property. Keep in mind that these rules are complex, with many subtleties and nuances.

A probate lawyer can help

Your rights might be affected by the intestacy of someone close to you. You might, for example, be someone who would probably stand to inherit under a valid will, but not under California intestacy law. On the other hand, you might be someone who would inherit under intestacy laws but not under a valid will. Either way, you are likely to need a California probate lawyer to help you make the most of your circumstances.

Help from Ananda Janaka

If you need help in understanding how to move forward in making your will, please take a look at the Will Kit on the Ananda Janaka website homepage. Or contact us at info@anandajanakafoundation.org.

We would be happy to hear from you.

In Divine Friendship,

Parvati Hansen
Executive Director, Ananda Janaka Foundation


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