Issues That May Arise When You Die Without a Will

As mentioned in our previous blog, dying without a will is called dying “intestate.” Below, we’ll discuss key elements of intestate succession laws that are important to consider, especially if you are the executor for someone who died intestate.

Property That is Not Affected by Intestate Succession

Many kinds of property do not actually go through intestate succession or probate if there is a designated beneficiary. This includes:

  • Life insurance proceeds
  • Funds in an IRA 401(k) or other retirement account
  • Securities in a transfer-on-death account
  • Payable on death bank accounts
  • Vehicles that have transfer-on-death registration
  • Property held in joint tenancy, tenancy by the entirety, or community property with the right of survivorship

These types of property will go directly to the co-owner or beneficiary designated on the account. Of course, included in this category, is also any property that is listed in a living trust.

Who Qualifies as a Surviving Spouse?

It may not always be clear if a person legally qualifies as a surviving spouse for purposes of inheriting property under the intestate succession laws. Here are some helpful principles:

  • Legal separation before finalized divorce: Typically once divorce proceedings have been initiated, the separating spouses cannot inherit from each other. However, there may be some situations in which it is unclear whether the couple intended for the divorce to be finalized. In those instances, a judge may have to rule on whether or not the surviving person can indeed be considered a surviving spouse.
  • Registered domestic partners: In California, registered domestic partners are considered surviving spouses. It is currently unknown if the recent ruling in Obergefell v. Hodges will prompt California to change its law mandating that couples get married in order to be recognized as spouses.

Who Qualifies as an Inheriting Child?

For children to inherit under the intestate succession laws, they may be any of the following:

  • Adopted children: All legally adopted children will have the same standing to inherit as biological children.
  • Foster children and stepchildren: If they have not been legally adopted, it is still possible, but difficult for them to inherit. They must prove that they had a relationship with you since they were minors and it has continued throughout their life, and you would have adopted them, but for a legal obstacle that prevented it. If at any point the obstacle were removed, and they still were not adopted, the argument fails.
  • Children born outside of marriage: If you were not married to the child’s mother when the child was born, the child may still inherit if it can be shown that you acknowledged the child as your own and contributed to the child’s care.

If you have further questions regarding who or what may be inherited when a person dies without a will or living trust, contact Hannah Sargent, our firm’s lead Alameda County estate planning attorney, today!