How to Avoid Intestate?

Passare.com shutterstock 363953369.jpgIntestate How to Avoid Intestate? separate property relatives family situation descendant california intestate succession

If you die without a will, then you are said to have died intestate. The rules of intestate succession are basically a default pecking order of who gets your assets.


It is the same scheme for every person, but obviously everyone has a different family picture of who is important in his or her life.

The rules of California Intestate Succession can be broken into two main steps:

STEP ONE pursuant to California Probate Code §6401:

Applied if the decedent (the person who passed away) was married at the time of their death. If the decedent was not married, skip to step two.

The distribution varies depending on the types of property involved:

  1. Community Property – The surviving spouse will own all community property, as half of it was already theirs, and the other half becomes theirs after passing through probate.
  2. Quasi Community Property – This is simply property that would have been Community Property under California law but was acquired in a separate property state. Under California law, it is treated identically to Community Property.
  3. Separate Property – The surviving spouse could end up with all, half or one third of the Separate Property depending on the family situation:
    1. The spouse gets all the Separate Property if there are no descendants or first line relatives; no issue and neither parent is still alive and no descendants of parents still alive (no brothers or sisters, nieces and nephews).
    2. The spouse gets one half of the Separate Property if there is either one blood line of descendants OR no descendants but there are first line relatives (deceased spouse had only one child, or if no descendants, the deceased spouse left at least one parent or descendant of parent (brothers, sisters).
    3. The spouse gets one third of the Separate Property if there are two or more blood lines of descendants still alive (deceased spouse leaves more than one surviving child, one child and issue of deceased child, issue of several deceased child; must have at least two or more surviving blood lines).
    4. Any separate property remaining passes as if there were no surviving spouse, under step 2, below.

STEP TWO pursuant to California Probate Code §6402:

The following is the priority order for determining heirs under the California intestate distribution scheme.

  1. Descendants (lineal) – children, great grandchildren, etc. (California follows per capita with representation – divide into initial shares at first generation with surviving members. California Probate Code §240)
  2. Parents – half to each or all to surviving parent.
  3. Descendants of parents – brothers and sisters and nieces and nephews, which goes to descendants of parents per capita with representation.
  4. Grandparents and their descendants – if there are four grandparents alive then each get a fourth, three each a third, two get half each, one grandparent left gets all; no equality between sides of the family.
  5. If all the grandparents are deceased then it goes to aunts and uncles by per capita with representation.
  6. Former step children and descendants (step children that were not treated as real child) – children of the predeceased spouse.
  7. Next of kin – California uses civil law with a parental preference rule.
  8. Deceased spouses parents and their descendants.
  9. Escheat to the California government – final step, if no heirs can be found at all. This rarely happens in California, but yes, if you have no heirs and you make no estate plan, then the State of California takes your assets for itself.

Under California Law, Community Property consists of the assets acquired during marriage, with the exception of gifts and inheritance. Assets acquired before marriage or after the date of separation are considered Separate Property. If Community Property and Separate Property get commingled together, then the court presumes that the assets are all Community Property and the party claiming a Separate Property interest has the burden of proof to show otherwise.

Passare.com 11g0eth robert shepard 300x295 01p01o01o01o000000 How to Avoid Intestate? separate property relatives family situation descendant california intestate succession Robert.L.Shepard offers estate planning legal services designed to avoid probate, reduce estate taxes, protect assets and creating irrevocable trusts.

To learn more about him, visit his website.

2 Responses to “How to Avoid Intestate?”

  1. Kathryn

    My friends hate it weeehvnr I discuss dying and it’s not like I discuss it all I have to do is mention it in passing! I can tell you that having the discussion at least once can make LIVING a lot less stressful!!As a single mom with very few family members, I’ve been prepared for a lot of years. Not to die, but for being dead. God forbid something happen and suddenly my son’s left grief-stricken to deal with all that stuff! He’s an only child. I at least had my brother around to help with the finances and paperwork side after my mom’s death.So yes, I’m prepared. Will. Check. Living will. Check. Life insurance. Check. Financial planner who has copies of all the paperwork including my business licenses and power of attorney. Check. Authority to hand the decisions over to his Godfather if he’s not ok to do it (I was much better with my mom’s stuff than I ever foresaw so you just never know), and the power to take it back if he decides he can handle it. Estate planning that’s the easiest part since right now there’s not really an estate and my son is getting stuck with all my belongings. And he’s been told that unless it means something to HIM . feel free to boot it out the door so that it doesn’t take up space in his life because it’s just things! (Having pics and videos and sound bites are the things I miss about my mom). Debi J recently posted

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