If You Die Without a Will

Question:  I am single, live in California, and I do not have a will. My main concern is what will happen to my property when I die without a will?

Answer: Every adult should have, at the least, a will. If you die without a will, the law refers to this as dying “intestate”  and State law (inCalifornia, the probate code) will dictate the distribution of your property.  The one exception to this rule is for real property that you own in a different state.  California law will determine who gets your bank accounts, securities, and California real estate.  Real estate in another state will come under the probate law of the state where the real estate is, usually at great additional legal and administrative expense. 

You get to choose who will represent you and your wishes for your estate if you make a will.  If you don’t, and you die intestate, the court will choose your personal representative for you, who may or may not be a family member and may not be someone you would have wanted to manage your affairs.  The court-appointed personal representative will have a mandate to distribute your property according to California law. 

The California Probate Code says that if you are unmarried and you die intestate your property will be distributed to the following persons in the following order:

1.  Equally to your children.  The probate code refers to them as your “issue:” It states: “To the       issue of the decedent, the issue taking equally if they are all of the same degree of kinship to     the decedent, but if unequal degree those of more remote degree take in the manner                 provided in Section 240.”

2.  If you have no living children, then next in line are your grandchildren.  And if no                          grandchildren, then great grandchildren.  

3.  If you have no children, grandchildren, or great grandchildren, then to your parent or                  parents.  The code says: If there is no surviving issue, to the decedent’s parent or parents          equally.”

4.  Next in line are your brothers and sisters.  The Probate Code recognizes them not as your         brothers and sisters but as “the issue of your parents.”  It says: “To the issue of the parents         or either of them, the issue taking equally if they are the same degree of kinship to the               decedent, but if of unequal degree those of more remote degree take in the manner                   provided….”

5.   If the decedent has no surviving children or parents, then next in line come grandparents          or the children of grandparents (your aunts and uncles). 

6.  The beneficiary chain gets more complicated now so if you have gotten this far and still             don’t know who your intestate beneficiaries are; you should hire an attorney to help you             figure it out.

I suggest you discuss your estate with a competent estate-planning attorney.  Ask him or her to explain the benefits of a will and the pros and cons of a living trust.  Every situation is different, and unless you seek professional help your estate might not be distributed the way you would want it to be.

Kenneth B. Petersen CFP®, EA, MBA, AIFA® is an investment advisor and Principal of Monterey Private Wealth, Inc., a Wealth Management Firm in Monterey.   He welcomes questions that you may have concerning investing, taxes, retirement, or estate planning.  Send your questions to: Ken Petersen, 2340 Garden Road Suite 202, Monterey, CA93940 or email them to ken@montereypw.com.