What Happens if I Don’t Have a Will? An Introduction to California Intestacy Law

Dying intestate, or without a will, is very common. If you die without a will, your property will go through probate and is then distributed according to California’s intestacy laws.

Intestacy laws govern intestate property. They go into effect unless there is a valid will to testify to the deceased’s wishes or some other established estate plan (like a Living Trust). In intestate inheritance in California, a spouse and children are first in line, then their children, and so on. When there are no descendants in the direct bloodline, the heirs are the parents, then siblings, then nieces and nephews, and so on.

Here are some common events that may happen if you die intestate:

Your immediate next of kin, whoever they are, will likely inherit your property first: lock, stock, and barrel. If you die intestate, everything goes to your next of kin. Your next of kin are the people who have the closest relation to you. If you’re married, then that’s your spouse. If you’re not married, your closest blood relations or equivalent, will inherit your property.

That son- or daughter-in-law you don’t like may get your property before that niece or nephew you do like. Property owned by your children is governed by the laws of the states they live in, not you. If they live in a community property state, an inheritance is usually separate property so long as it is not commingled. While the laws are different in every state, property acquired by gift or inheritance during marriage by either spouse is separate property, but it is very easy to commingle and then the inheritance becomes part of the community and subject to a 50/50 division.

Your heirs could be affected by estate or inheritance taxes (that could have been avoided). The relatives who inherit from you (or your estate, which has the same effect) may be subject to a large inheritance tax (both on the federal and state level), depending on the size of the estate and the state where the assets in question are held and the state where the heirs reside. While this won’t wipe out their inheritance completely, proper estate planning can often make this a non-issue. For example, a Silicon Valley estate lawyer could have helped you create a trust that would have minimized your loved ones’ exposure to taxes.

 A little bit of money up for grabs has a very cooling effect on interfamilial relationships. In a perfect world, family members would all get along, never be jealous, and always do right by each other. This isn’t a perfect world. Intestacy laws don’t take into account the relationships the deceased had with anyone or what the deceased orally promised to someone. Even if widowed Uncle Bob told you he wanted you to have his ’65 Thunderbird, without a will, the car is going to his son… who doesn’t even have a driver’s license.

If you wish to avoid an intestacy inheritance, contact a Silicon Valley estate lawyer for assistance. They can counsel you on your options for setting up an estate plan that meets your wishes, not those of the state of California.