A will and/or a trust is probably something that a lot of people hear that they should have. Most people probably don’t, however, because human nature is that way. In this blog post, I’m going to go over what happens if you die without any estate planning documents at all. Any one of us can, unfortunately, die all of a sudden so this post is likely not as theoretical as a lot of us would like to think.

I’m going to talk specifically about California, but the concept I’ll go over (i.e. Intestate Succession) is not unique to California. Other states in the US recognize it also. As always, however, if you’re outside of California, you need to look up the particular rules for Intestate Succession in your state.

In describing what happens to you if you die without a will or a trust, I’ll also illustrate one of the reasons why you should not wait to get divorced.

Intestate Succession
Intestate succession is the generic term for what happens if you die without a will or a trust. As a reminder, California has specific requirements that a will and a trust have to meet in order to be valid. If your will or trust doesn’t meet those requirements and you die, it’s like you didn’t have a will or trust at all.

Intestate Succession is a set of rules that governs who gets your stuff when you die. If you leave a will or a trust, you can specify who you want (or don’t want, as the case may be) to get your stuff. You can leave things to specific people or institutions who helped you during your life, for instance. On the other hand, if you die without a will or a trust — or more accurately, a valid will or trust — in California, then intestate succession applies (i.e. you die “intestate”). You get no say in the matter of who gets your things. Intestate succession relies upon marriage and blood relations to determine who gets your stuff.

To illustrate, let’s suppose then that you pass away suddenly.

• Under California Probate Code section 6401, your spouse will get the half of the community property that you owned. Your spouse already owned the other half of the community property so, if you die intestate, your spouse ends up owning all of the community’s property. Remember, “community property” is defined to include all property you acquired during your marriage (see California Probate Code section 28). California is a community property state. Most states in the US are not.
• Of the property you had that was your own separate property, who gets that depends on the number of blood relatives (e.g. children, parents, siblings, etc) you leave behind. If you left none, then your spouse gets all of your separate property too in addition to all of the community property. Depending on the number of blood relatives you left behind (e.g. 2 children vs. 1, etc), your spouse gets either 1/2 of your separate property or 1/3 of it.
• The part of your separate property that doesn’t go to your surviving spouse then gets divided up according to California Probate Code section 6402. (If died owning real property you received from a spouse who died not more than 15 years before you and you left no spouse or blood relatives, then you need to follow section 6402.5 instead.)

I’m sure most of us have seen TV shows or movies where someone passes away and all the relatives gather in a somber way in the lawyer’s office for the reading of the will to discover who gets what. (If you aren’t familiar with such a scene, might I recommend the end of the 2008 Clint Eastwood movie Gran Turino.) In those scenes, the relatives either get or aspire to get some of the deceased person’s property simply by having been related to them. California Probate Code section 6402 is essentially this — in other words, a set of rules that allows a person to inherit some property (e.g. a car, a bunch of money, etc) because some distant cousin or relative they’ve never met died suddenly.

In a nutshell, California California Probate Code section 6402 prescribes the following rules for what relative gets your stuff when you die. These rules go in order of priority. For instance, if the deceased’s children get first dibs and they take everything, then the deceased’s parents get nothing.

(Note: this list below is being paraphrased for clarity. For a completely accurate version, you need to look at California Probate Code section 6402)

• The deceased’s issue (e.g. children, grandchildren, etc) get first dibs.
• The deceased’s parents get second dibs.
• The issue of the deceased’s parents (i.e. the decedent’s siblings and nieces and nephews) get third dibs
• The decedent’s grandparents or issue of grandparents (i.e. aunts, uncles, cousins) get fourth dibs
• The issue of the decedent’s predeceased spouse (e.g. deceased’s step-child) get fifth dibs
• The deceased’s next of kin have sixth dibs. “Next of kin” is — essentially — your closest living blood relative.
• The parents of the decedent’s predeceased spouse or the issue of those parents have seventh dibs.

If you’re on good terms with your children, grandchildren parents, etc, then having your stuff go to them in this way is probably no big deal. On the other hand, if you’re estranged from your kids or parents, then you probably would mind a great deal if they got your stuff instead of someone else who you wanted to get your stuff.

And this also leads in to the point I made earlier about divorce: Staying legally married to someone you are no longer in a relationship with is incredibly dumb if you don’t have a will and/or a trust. The reason is because if you die, then this spouse whom you haven’t lived with in years and don’t really like at all any more will suddenly get most of your stuff. If you’ve moved on with a new girlfriend or boyfriend whom you treat as your “partner” or “spouse” and intend on leaving all your possessions to them, you should know that Intestate Succession entitles this new girlfriend or boyfriend of yours to absolutely nothing.

From having done a lot of divorces, I know the process — at least in California — can be very confusing and a lot of people don’t bother with the process at all.

Takeaways then: (1) have a will and/or trust, and (2) get divorced instead of simply staying legally married to someone you are no longer in a relationship with.

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Andy Chen

Attorney-at-Law at The Law Offices of Andy I. Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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