By Jack Brown, Esq.
If you do not have a will (or a living trust) at the time of your death, all real and personal property in which you have an interest will be distributed as directed by law.
- Joint Tenancy. If property is held jointly with another person, in “joint tenancy” it passes to the surviving joint tenant. However, if the property is held as “tenants in common”, which sounds the same but is significantly different, your share is subject to probate.
- Community Property. Property held jointly by a husband and wife as their community property passes to the surviving spouse. However, there may be an issue as to whether property is community or separate. Separate property does not automatically pass to a surviving spouse.
- Intestate Succession. If property does not pass to a surviving joint tenant, or to a surviving spouse, in most cases it will be subject to court-supervised probate and will pass to your heirs as directed by California law.
A surviving spouse will receive your share of community property but only a portion of your separate property. Examples:
- Your survivors include a spouse, one child and two living children of a deceased child. Your spouse would receive one third, your child would receive one-third and the two grandchildren one-sixth each.
- You have no surviving spouse or children but you are survived by grandchildren. Child A died leaving two children and Child B died leaving four children (your grandchildren). All of the grandchildren would receive an equal share.
- Your spouse and parents survive but no children or grandchildren. Your spouse would receive one-half and your parents one-half (or, if your parents did not survive, then your siblings/nieces/nephews would receive one-half). Thus, without a will, your spouse could end up with half of your separate property and her in-laws the other half.
As you can see, there is a great deal of uncertainty as to exactly how your estate will be distributed after your death if you do not have a will or a trust. At any given point in time, a lawyer can tell you how your estate would be distributed if your characterization of whether the property is community property or separate property is accurate and you died at that moment. However, even though death is certain, its timing is not. Your estate is determined and distributions will be ordered by the court whether you die with a will or not only at the time of your death. Therefore, even though you may feel that California law would provide a satisfactory distribution for you at this moment, you can’t be certain it would also be satisfactory at the time of your death.
Your “estate” consists of virtually everything you own or have a financial interest in – your home, other real estate, savings, life insurance, automobiles and equipment, stocks, retirement accounts, etc. There are two primary functions of proper estate planning.
- to provide for distribution of your estate as you direct; and,
- to minimize to the extent possible, the cost of administration, taxes and unnecessary delay.
The primary difference between a will and a living trust is that a will requires court supervised probate and a trust does not. Trust administration is usually much quicker and less expensive than probate. Whether you decide that a will or a trust is best suited for your situation, unless you want the state to determine how your property will be distributed when you die, you need one or the other.
The Law Offices of Jack Brown are located at 41391 Kalmia Street, Suite 210, in Murrieta. www.jackbrown.com (951) 698-0050.