What Is Considered Property for Someone Who Died? - RMO Lawyers, LLP | Probate, Trust, Estate Litigation Attorneys
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What Is Considered Property for Someone Who Died?

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When someone dies, their property must be passed on to their heirs and beneficiaries. Everything that a person owns individually will be considered their property upon their death. This includes personal property such as cash, stocks, vehicles, clothes, furniture, and jewelry, as well as real property such as land and buildings. 

Some assets will be subject to a process called “probate,” where the distribution of property is monitored by the court. However, some property will automatically pass to a co-owner or the deceased person’s chosen beneficiaries upon their death. And other property may pass privately through a trust.

Examples of assets that will not be subject to probate include:

  • Any property that is jointly owned, such as real estate and bank accounts.
  • Payable-on-death (“POD”) bank, investment, and retirement accounts.
  • Proceeds from life insurance policies.
  • Any assets held in trust.

What Is a Property Called When Someone Dies?

When someone dies, all of the real and personal property that they own at the time of their death is called the “Decedent’s Estate.”

What Happens to the Property of a Dead Person?

Two primary factors affect what happens to the property of a dead person. 

The first factor is how the property is owned. As we discussed above, certain assets are not subject to the probate process. These non-probate assets will be generally distributed as such:

  • Trust assets will be distributed to the beneficiaries according to the terms of the trust instrument. 
  • Jointly-owned bank accounts and real property will be inherited by the surviving joint owners. 
  • POD bank accounts, investment and retirement accounts, and life insurance policies will be passed to the designated beneficiaries.

However, California law does make some exceptions to these rules when the non-probate assets are community property of a married couple in which a surviving spouse has an interest.

The second factor is whether or not the deceased left a will or other estate planning documents. When the deceased person leaves a will, the probate assets will usually be distributed according to the terms of the will. 

But if the deceased person passes away without a will, California’s intestate succession laws (California Probate Code 6400 through 6455) will control how their probate assets are distributed. Intestacy laws will also apply to probate assets not disposed of through a decedent’s will, either intentionally or by mistake or omission. 

Once the estate’s debts are paid as part of the probate process, any remaining property will be distributed to their heirs according to state intestate succession laws. The intestacy statutes establish a specific order in which family members are entitled to inherit and what portion of the probate estate they are to receive. 

For example, say the deceased died with a wife and two children. In that situation, California intestate law gives the spouse all of the community property and 1/3 of the deceased’s separate property, which is generally limited to assets acquired before marriage. The two children will split the remaining 2/3 of the separate property, with each child receiving 1/3. 

Here are some other examples of how California intestacy laws would distribute probate assets in different family situations:

  • If the decedent was married with no surviving children, parents, siblings, nieces, or nephews, all property would go to the surviving spouse.
  • If the decedent was unmarried but had children, all property would be equally split among the surviving children. If one or more children died before the decedent, each deceased heir’s children would take an equal share of their parent’s inheritance. 
  • If the decedent was unmarried and did not have children, the decedent’s parents would inherit the assets. If both parents pre-deceased the decedent, then the decedent’s siblings would inherit their property. If there are no surviving siblings, then any surviving aunts and uncles would split the estate, and so forth. 

Who Are the Heirs of a Deceased Person?

Under California law, the heirs of a deceased person are any person who is entitled to receive the decedent’s property according to the intestate succession statutes. Typically, this can include any of the following:

  • Spouses
  • Children
  • Grandchildren
  • Great-grandchildren
  • Parents
  • Siblings
  • Aunts
  • Uncles
  • Nieces
  • Nephews

It’s important to distinguish between the terms “heir” and “beneficiary.” Whereas the word “heir” can only be used to refer to family members of the decedent that are entitled to inherit under intestacy law, the word “beneficiary” means any person who is entitled to receive the property of the deceased person. While the term “beneficiary” can be used to refer to heirs, it more precisely is used to identify the named beneficiaries of a will or trust, who do not necessarily need to be family members. 

If you are dealing with the death of a loved one and unsure how their property will be distributed, you should discuss the situation with a probate litigation attorney to understand your rights and what steps you may need to take to protect what your loved one intended for you and avoid losing your inheritance.  

Have questions? We’re happy to discuss.
Call (424) 320-9444 or email hello@rmolawyers.com

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About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.

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