Who Inherits Property if There Is No Will?

State intestacy laws direct how estate assets must be distributed, identifying family members’ order of priority to receive an inheritance and how much they are entitled to receive. 

Who inherits property if there is no will?

If your loved one passes away without a will, California’s intestate succession laws (California Probate Code 6400 through 6455) will dictate how the estate property will be distributed. However, these laws will only dispose of assets that otherwise would have been subject to probate.  

Examples of assets that won’t be affected by intestacy laws include:

  • Funds in a living trust
  • Property that is owned jointly, such as real estate or bank accounts
  • Proceeds from life insurance 
  • Payable-on-death (“POD”) bank and retirement investment accounts

These assets will be inherited by a surviving co-owner or a named beneficiary without regard to the intestate succession laws.

 

 

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What is intestate succession?

Intestate succession is the process by which estate assets are distributed when someone dies without a will, or when a will exists but does not entirely dispose of all estate assets. The California intestacy statutes detail the specific order in which family members are entitled to inherit, and what percentage of the estate they should receive. 

Here are some examples of how California intestate succession laws would require estate assets to be distributed in different situations:

  • If the deceased was married with no surviving children, parents, siblings, nieces, or nephews, all assets would be distributed to the surviving spouse.
  • If the deceased was unmarried but had children, all assets would be split equally between the children. If one or more children died before the deceased, the children of each deceased child will split their parent’s share equally. 
  • If the deceased was married with one child, the spouse would inherit all community property and one-half of the deceased’s individual or separate property. The child would inherit the other half.
  • If the deceased was married with two or more children, the spouse would inherit all community property and one-third of the deceased’s individual or separate property. The children would split the remaining two-thirds equally. 
  • If the deceased was unmarried and had no children, then the deceased’s parents would inherit the assets, and if the parents are deceased then siblings, aunts, uncles, and so forth. 

These are just a few instances of how California’s complicated intestate succession laws can play out. If a family member has passed away and did not leave a will, an experienced probate attorney can explain how the estate assets will be distributed in your particular situation.

What is an executor of an estate?

The executor of an estate is the person who is responsible for carrying out the probate process when the deceased left a will. The executor is usually appointed or otherwise identified in the will itself. Executor duties include:

  • Marshaling estate assets
  • Paying estate debts and taxes
  • Selling estate property (if needed)
  • Distributing estate assets in accordance with the terms of the will

If someone dies without a will, an administrator will be appointed by the probate court to manage the estate. Administrators generally have the same responsibilities as executors, but they are appointed by the court without having been nominated in a will, as an executor would be.

Can an executor of estate take estate property?

No. While the executor of an estate may be able sell estate property as needed, they cannot take property from the estate to keep, use, or sell for their own benefit.

An executor may be able to sell estate property for 90% or more of the appraised value without receiving approval from the beneficiaries or the court. However, before an executor can sell real property, they often must obtain court approval first. The money that is made from selling the property will belong to the estate and be distributed according to the will.

Executors have a fiduciary duty to follow the will when distributing estate property. This means they cannot take property or money from the estate for themselves unless it is specifically left to them in the will and even then only upon approval from the court.

Do I need a probate lawyer to contest an inheritance?

Even though you are not legally required to retain a probate lawyer to contest an inheritance, an experienced attorney will give you your best shot at success.

While you generally cannot contest an inheritance under intestate succession, you may be able to make an additional claim against the estate to receive more than your intestate share. A probate litigation attorney can advise you on your rights and provide legal guidance on the best way to proceed. 

Do I need a probate lawyer near me?

If you have a probate, hiring the best attorney familiar with the local probate court where your case is going to be heard and decided often will get you the best result.  Hiring someone local can be logistically favorable, but the reality is that familiarity with the court and its judges, processes and rules will help move your case along more efficiently and cost-effectively, getting you a better result sooner and likely for less legal spend.

 

 

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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.