CALIFORNIA'S DEFAULT PLAN TO IDENTIFY HEIRS

Without planning ahead, the probate administration and intestacy laws of California apply. Intestacy law identifies who are the “next of kin” to inherit.

Intestacy

First, who is not next-of-kin. Relatives by marriage are not “next of kin.” Next of kin are blood relatives and adoptees. As a general rule, intestacy heirs reflect what the average person would expect.

Most people want their spouse to inherit. Under the intestacy laws, the surviving spouse is the default next of kin. If there is no surviving spouse, the children of the deceased inherit. Again, children are the natural heirs of most people.

If no spouse or children are living, default heirs are not as predictable. Parents are the first to inherit. If no parents survive, brothers and sisters inherit. This fairly straight forward order is complicated if a next of kin has predeceased with surviving children.

The closet surviving, next-of-kin creates a class or group of heirs. For example, the deceased has three children, two living and one deceased. Because there are living children, identification of heirs stops at the “class of children.” The deceased child’s, children, (grandchildren) step into their parent’s place and inherit that share their parent would have taken if living.  

The other complication is California as a community property state. Community property is property acquired during the marriage. Each spouse owns one-half. The default is on death of one spouse, the other spouse inherits and is the sole owner.

Separate property complicates inheritance. Separate property is acquired either prior to the marriage, by inheritance or by gift. Separate property owned by a deceased spouse does not by default go only to the surviving spouse. If the deceased had children, they inherit a portion of the real property. So, both the surviving spouse and the children are heirs of separate property.

If the deceased does not have a will or trust for the transfer of assets, the intestacy laws of California intervene. The laws of intestacy identify who is the “next of kin” to inherit. The identity of next of kin is complicated by the distinction between community property and separate property or a next of kin who has died with surviving children.

Author: Mark W. Bidwell

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