Wednesday Words: Intestate Succession

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Lawyers seem to have their own language. Many certainly speak in jargon. While I try to speak in plain English, there are many terms that are used in estate planning that need to be explained. One is “Intestate Succession.”

Intestate Succession is the method by which property is distributed when a person dies without a valid will.

Each state’s law provides that the property be distributed to the closest surviving relatives. In most states, the surviving spouse or registered domestic partner, children, parents, siblings, nieces and nephews, and next of kin inherit, in that order. If there is no next of kin, then property will “escheat” or revert to the state. (Source: Nolo Plain English Legal Dictionary)

Only “probate-able” assets (that would have passed through your will) are affected by intestate succession laws.

How your assets are distributed in California depends upon who your closest relatives are when you die. California Probate Code §§6400-6414 determines the order of inheritance. The following table illustrates some of the more common examples:

• Parents and siblings but no spouse or children — Parents receive 100% of all property

• Siblings, but no spouse or children – Siblings split equally 100% property

• Spouse and parents, but no children – Spouse receives 100% of community property and 50% of separate property AND your parents receive 50% of separate property

• Spouse and siblings, but no children or parents Spouse receives 100% of community property and ½ of separate property. Siblings receive ½ of separate property

• Spouse and one child – Your spouse receives 100% of community property and ½ of separate property

• Spouse and multiple children – Your spouse receives 100% of community property and 1/3 of separate property AND you children split 2/3 of separate property

Children, but no spouse – Your children split 100% of all property

There are some additional factors that affect intestate inheritance as well,

• Survivorship period. To inherit under California’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property

• Half-relatives. “Half” relatives inherit as if they were “whole.”

• Posthumous relatives. Relatives conceived before – but born after – you die inherit as if they had been born while you were alive.

• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
There are numerous estate planning options that can be used to change the “default” intestacy rules.

Are there any estate planning terms you would like to learn more about? Let me know in the comments, and they may be featured in a future Wednesday Words post. In the meantime, if you have any questions, or would like to discuss your estate plan, please contact Laura L. Thatcher, or a qualified estate planning attorney in your area.