Law Office of Stephen W. Penn and Associates

What happens if I die without a will?

If making your California will is not one of the things at the top of your priority list, you may wish to move it up. Why? Because if you die without one, the State of California says you died intestate and decides for you who gets your property and assets.

The California Probate Code makes extensive provision for intestate succession, meaning which of your relatives gets what property under what circumstances. If you die intestate, the law does not concern itself with what oral promises you made to various relatives regarding what you intended them to receive upon your death. Instead, it has its own intestate succession rules.

The other thing you need to remember is that California is a community property state. This means that, by law, half of all the assets you and your spouse or domestic partner acquired during your marriage or registered domestic partnership belong to him or her.

If you have a surviving spouse or partner

If you are married or in a domestic partnership when you die, but have no surviving children, your surviving spouse or partner gets your half of the community property. If you have surviving children as well as a surviving spouse or partner, (s)he will receive half of your community property and your surviving children will receive equal shares of the remaining half.

If you have no surviving spouse or partner

If you have no surviving spouse or partner, but have surviving children, they will receive equal shares of your entire estate. Be aware that the intestacy laws do not discriminate between your biological and adopted children. Both share equally in your estate.

In addition, the laws do not forsake any of your children who predeceased you. For instance, if one of your sons preceded you in death but his children survive you, they will receive equal shares of your deceased son's share had he not died before you did.

The Probate Code provides for every relative you have in every conceivable situation. Again, if you die without a will, which relatives get what may have nothing to do with what you yourself prefer. This information is only intended to educate and should not be interpreted as legal advice.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012