WHAT HAPPENS IF YOU DIE WITHOUT A WILL?

If you die without a will in Orange County, CA, you no longer control who your estate goes to. In this case, you are said to have “died intestate,” and state law and the probate court distributes your estate by what is referred to as intestate succession. Without a will, your estate will be divided amongst your heirs in accordance with the law, not your wishes.

While intestate succession was developed in a way that many people would commonly want their estate to be divided, it may or may not be how you would have wanted your property divided. Consequently, having a valid will in place protects your wishes and the interests of your heirs.

How is Property Divided When Someone Dies Intestate in California?

When you die, your estate will be distributed based on rules of descent and distribution.

If you die without a will, intestate succession in California is governed by the state’s probate codes and sets out which individuals will get benefit of your estate.

In an intestate situation, if the decedent is married at the time of death, assets will first be broken down by either community or separate property. Community property is property acquired and owned by both spouses. Separate property is property that each spouse owns as individuals.

In the case of intestacy, separate property will be kept by the spouse who owns the property and community property is considered part of the estate. A surviving spouse will keep their own separate property and receive a portion of the community property based on a formula determined by probate law depending on whether there are other surviving descendants. If there is no surviving spouse, probate law provides a different formula depending on who the surviving descendants are and where they fit in legal succession.

Assets That Are Exempt From California Intestacy Law

If you die without a will, some of your assets may be exempt from the state’s intestacy laws. These are assets that already provide for how they will pass after death and will do so outside the probate court. These assets will include things like jointly held bank accounts, any accounts that have a pay-on-death beneficiary, any life insurance proceeds, retirement accounts with a designated beneficiary, jointly held real estate, or assets held in a trust.

Other Potential Pitfalls of Not Having a Will

Without a will, while your estate is subject to intestacy laws for distribution of your assets, there are other matters that a will provides for that you will also not have benefit of.

• You will have no executor. – Instead of you naming someone you know and trust to distribute your assets, the court appoints someone. This can lead to delays and additional expenses that must be absorbed by your estate.
• You can’t name a guardian for your children. – If you have minor children at the time of your death, without a will, the court will appoint your children’s guardian. This may or may not be someone you would choose to watch over them.
• You don’t have the opportunity to choose your burial or funeral preferences.
• Some individuals may get assets from your estate that you would not have chosen. – Unfortunately, if you haven’t provided for this in a will, state law will make that determination.
• Probating a will becomes more expensive as more attorneys and court time are involved. – Not having a will with concise instructions requires that more legal fees will be absorbed by your estate before it can be distributed to your heirs.

Wills are not only for the wealthy or elderly. Having a will is critical when you have assets and family that you care about and ensures that your wishes are considered if the unforeseeable happens.

Getting the Skilled Assistance of an Experienced Orange County, CA Estate Planning Attorney

At the Law Offices of Roshni T. Desai, our Orange County, CA estate planning attorneys take great pride in helping our clients with their estate planning and small business needs. If you are considering having a will drafted or have questions about other estate planning matters, call us at 714.694.1200 or contact us online to schedule a free consultation to discuss your needs.