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May The Forced Plan be with You: What Happens If You Die in California Without A Will?

What Happens If You Die Without A Will? That depends on how you hold title to your assets. If you die and everything you own is in your sole name, then the assets must pass through probate to be transferred to your next of kin. When you die without a Will, you are said to have died intestate. And California law provides a prearranged plan on how your assets will pass under the intestate statutes.

For starters, if you are married at the time of your death and have community property, then your surviving spouse will receive ALL of your community property. That means your children receive none of your community property. It all goes to your spouse instead, and he or she then decides how the assets pass after his or her death.

You have the right, under California law, to gift your share of the community property to whomever you like (you can even exclude your spouse as to half of the community property). But if you choose not to create a Will, then the State of California decides how your assets pass. And the State of California says it all goes to the surviving spouse—sorry kids, you’re out of luck!

The surviving spouse will also receive a portion of your separate property. If a decedent dies and has only one child, then the surviving spouse receives half of the separate property, and the surviving child receives the other half. If a decedent dies and has two or more children, then the surviving spouse receives one-third of the separate property, and the children split the other two-thirds. As with community property, you have the right to gift your separate property to anyone you like (you can even exclude your spouse). But when you die without a Will the State of California makes your distribution decisions for you.

If you die without a Will and you are not married at the time of your death, then your assets will pass to your children equally. If one of your children dies before you do, then that child’s children will get their parent’s share. If you have no children and no grandchildren living at the time of your death, then your estate passes to your parents. If your parents are not alive, then it goes to your brothers and sisters. If your siblings die before you do, then it goes to your nephews and nieces, if you have any. The California Probate Code sets out a detailed list of people who will receive your assets. If you have no living relatives after looking at six degrees of separate from you, then your estate passes to the State of California.

A common misconception is that anyone who dies with a Will automatically loses his assets to the State. That’s false. There are a long list of relatives that the State of California looks to first to receive your assets.

And now for the twist! If you die without a Will, but you hold your assets in some form of joint ownership, such as joint tenancy, then your assets will pass to the surviving joint tenant and the fact you have no Will becomes irrelevant. The same is true for assets passing by beneficiary designation (think life insurance, IRA’s, and 401(k)’s) and assets passing by pay-on-death or transfer-on-death accounts. And, of course, assets passing by Trust also bypass your probate estate—no Will required.

In other words, the way in which you hold title to your assets will determine whether you having (or not having) a Will matters. Any assets that pass outside of your probate estate will do so regardless of whether you have a Will or not.

So is it better to have assets pass by joint tenancy and forget the Will? Maybe. Just remember that joint tenancy assets ONLY pass to the surviving joint tenant. And that joint tenant has no legal obligation to share the assets with anyone else. Also, adding a person as a joint tenant to your property could make it difficult for you to control that property because a joint tenant is a co-owner with you. For example, you cannot sell your house by yourself if you hold title to it in joint tenancy with a child. The child also has to sign off on any sale. If they refuse to do so, then you cannot sell.

In an ideal world everyone would simply have a Will and a Trust as part of a well-planned estate. But for those times when someone falls short of perfection, the California intestate statutes will do that planning for you—whether you like the result or not.