California Probate Attorney

INTESTATE SUCCESSION PAGE – DYING WITHOUT A WILL

By John B. Palley, Attorney at Law

Intestacy is the process of dying without a will. In that instance, the state will dictate who will get your assets. It often might mirror what you would desire. For example, your children and spouse would be the first choices to receive your property. Your parents would be next, if you had no children or a spouse. This process continues until a time when no relatives can be found for you. At that point the state takes your money for their own purposes; but this is rare. Here is a satirical Last Will and Testament, if you do not put together a will for yourself! If you want to read all the details I have provided the relevant California probate code sections below this will.

MY LAST WILL AND TESTAMENT

PROVIDED FOR ME, FREE OF CHARGE,

BY THE STATE OF CALIFORNIA

Being of sound mind and memory (or not of said quality of mind and memory), I, (insert your name) do hereby publish this as my last Will and Testament:

First paragraph: I give my surviving spouse all of my community property, but only one-third of my separate property, and I give my children the remaining two-thirds of my separate property. If I have no surviving spouse, then my property shall go to my children equally. If I leave no children, then my property shall go to my parents in equal shares. If my parents do not survive me, I give my estate to my brothers and sisters. If my brothers and sisters do not survive me, my property shall go to my next of kin in equal shares. If I leave no kindred, my property shall go to the State of California, to do with as they see fit, in their infinite wisdom.

Second paragraph: I appoint my surviving spouse as guardian of my children, but as a safeguard I require that (he/she) report to the Probate Court each year and render an accounting of how, why and where (he/she) spent the money necessary for the proper care of my children. If I leave no surviving spouse, the Probate Court shall appoint a guardian of my children (including somebody I don’t know), as they see fit, at the cost of my estate.

Third paragraph: As a further safeguard, I direct my spouse to produce to the Probate Court a performance bond to guarantee that (he/she) exercises proper judgment in the handling, investing and spending of the children’s money.

Fourth paragraph: As a final safeguard, my children shall have the right to demand and receive a complete accounting from their (mother/father/court appointed guardian) of all of (his/her) financial actions with their money as soon as they reach legal age.

Fifth paragraph: When my children reach age 18, they shall have full rights to withdraw and spend their share of my estate. No one shall have any right to question my children’s actions on how they decide to spend their respective shares. They can even spend it all one an automobile if they decide that is the most prudent choice.

Sixth paragraph: I request that no measures be taken to reduce the cost of administering my estate. It is my intention that my attorney and my executor receive the highest possible fees for their services, as allowed under the law. I further request that no attempt be made to reduce any of the other costs of the administration of my estate.

Seventh paragraph: Should my (husband/wife) predecease me or die while any of my children are minors, I do not wish to exercise my right to nominate the guardian of my children, a guardian of their estate, or a trustee to manage the estate as I would direct for their health, welfare and education.

Eighth paragraph: Under existing tax law, there are certain legitimate avenues open to me to reduce, or eliminate, the Federal inheritance taxes upon my death. Since I prefer to have my money used for governmental purposes rather than for the benefit of my lawful heirs including my surviving spouse, children, parents, etc., I direct that no effort by made to lower taxes.

In Witness Whereof, I have set my hand to this my Last Will and Testament, this __ day of ________, 2012.

______________________

Approved by Governor, Edmund G. Brown, Jr.

· No Witnesses needed for this will, because it is provided by the state of California

6400. Any part of the estate of a decedent not effectively disposed
of by will passes to the decedent’s heirs as prescribed in this
part.

6401. (a) As to community property, the intestate share of the
surviving spouse is the one-half of the community property that
belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the
surviving spouse is the one-half of the quasi-community property that
belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving
spouse or surviving domestic partner, as defined in subdivision (b)
of Section 37, is as follows:
(1) The entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased
brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one
deceased child.
(B) Where the decedent leaves no issue but leaves a parent or
parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or
more deceased children.
(C) Where the decedent leaves issue of two or more deceased
children.

6402. Except as provided in Section 6402.5, the part of the
intestate estate not passing to the surviving spouse or surviving
domestic partner, as defined in subdivision (b) of Section 37, under
Section 6401, or the entire intestate estate if there is no surviving
spouse or domestic partner, passes as follows:
(a) 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 of
unequal degree those of more remote degree take in the manner
provided in Section 240.
(b) If there is no surviving issue, to the decedent’s parent or
parents equally.
(c) If there is no surviving issue or parent, to the issue of the
parents or either of them, the issue taking equally if they are all
of the same degree of kinship to the decedent, but if of unequal
degree those of more remote degree take in the manner provided in
Section 240.
(d) If there is no surviving issue, parent or issue of a parent,
but the decedent is survived by one or more grandparents or issue of
grandparents, to the grandparent or grandparents equally, or to the
issue of those grandparents if there is no surviving grandparent, the
issue taking equally if they are all of the same degree of kinship
to the decedent, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.
(e) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, but the decedent is survived
by the issue of a predeceased spouse, to that issue, the issue taking
equally if they are all of the same degree of kinship to the
predeceased spouse, but if of unequal degree those of more remote
degree take in the manner provided in Section 240.
(f) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a predeceased
spouse, but the decedent is survived by next of kin, to the next of
kin in equal degree, but where there are two or more collateral
kindred in equal degree who claim through different ancestors, those
who claim through the nearest ancestor are preferred to those
claiming through an ancestor more remote.
(g) If there is no surviving next of kin of the decedent and no
surviving issue of a predeceased spouse of the decedent, but the
decedent is survived by the parents of a predeceased spouse or the
issue of those parents, to the parent or parents equally, or to the
issue of those parents if both are deceased, the issue taking equally
if they are all of the same degree of kinship to the predeceased
spouse, but if of unequal degree those of more remote degree take in
the manner provided in Section 240.

6402.5. (a) For purposes of distributing real property under this
section if the decedent had a predeceased spouse who died not more
than 15 years before the decedent and there is no surviving spouse or
issue of the decedent, the portion of the decedent’s estate
attributable to the decedent’s predeceased spouse passes as follows:
(1) If the decedent is survived by issue of the predeceased
spouse, to the surviving issue of the predeceased spouse; if they are
all of the same degree of kinship to the predeceased spouse they
take equally, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.
(2) If there is no surviving issue of the predeceased spouse but
the decedent is survived by a parent or parents of the predeceased
spouse, to the predeceased spouse’s surviving parent or parents
equally.
(3) If there is no surviving issue or parent of the predeceased
spouse but the decedent is survived by issue of a parent of the
predeceased spouse, to the surviving issue of the parents of the
predeceased spouse or either of them, the issue taking equally if
they are all of the same degree of kinship to the predeceased spouse,
but if of unequal degree those of more remote degree take in the
manner provided in Section 240.
(4) If the decedent is not survived by issue, parent, or issue of
a parent of the predeceased spouse, to the next of kin of the
decedent in the manner provided in Section 6402.
(5) If the portion of the decedent’s estate attributable to the
decedent’s predeceased spouse would otherwise escheat to the state
because there is no kin of the decedent to take under Section 6402,
the portion of the decedent’s estate attributable to the predeceased
spouse passes to the next of kin of the predeceased spouse who shall
take in the same manner as the next of kin of the decedent take under
Section 6402.
(b) For purposes of distributing personal property under this
section if the decedent had a predeceased spouse who died not more
than five years before the decedent, and there is no surviving spouse
or issue of the decedent, the portion of the decedent’s estate
attributable to the decedent’s predeceased spouse passes as follows:
(1) If the decedent is survived by issue of the predeceased
spouse, to the surviving issue of the predeceased spouse; if they are
all of the same degree of kinship to the predeceased spouse they
take equally, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.
(2) If there is no surviving issue of the predeceased spouse but
the decedent is survived by a parent or parents of the predeceased
spouse, to the predeceased spouse’s surviving parent or parents
equally.
(3) If there is no surviving issue or parent of the predeceased
spouse but the decedent is survived by issue of a parent of the
predeceased spouse, to the surviving issue of the parents of the
predeceased spouse or either of them, the issue taking equally if
they are all of the same degree of kinship to the predeceased spouse,
but if of unequal degree those of more remote degree take in the
manner provided in Section 240.
(4) If the decedent is not survived by issue, parent, or issue of
a parent of the predeceased spouse, to the next of kin of the
decedent in the manner provided in Section 6402.
(5) If the portion of the decedent’s estate attributable to the
decedent’s predeceased spouse would otherwise escheat to the state
because there is no kin of the decedent to take under Section 6402,
the portion of the decedent’s estate attributable to the predeceased
spouse passes to the next of kin of the predeceased spouse who shall
take in the same manner as the next of kin of the decedent take under
Section 6402.
(c) For purposes of disposing of personal property under
subdivision (b), the claimant heir bears the burden of proof to show
the exact personal property to be disposed of to the heir.
(d) For purposes of providing notice under any provision of this
code with respect to an estate that may include personal property
subject to distribution under subdivision (b), if the aggregate fair
market value of tangible and intangible personal property with a
written record of title or ownership in the estate is believed in
good faith by the petitioning party to be less than ten thousand
dollars ($10,000), the petitioning party need not give notice to the
issue or next of kin of the predeceased spouse. If the personal
property is subsequently determined to have an aggregate fair market
value in excess of ten thousand dollars ($10,000), notice shall be
given to the issue or next of kin of the predeceased spouse as
provided by law.
(e) For the purposes of disposing of property pursuant to
subdivision (b), “personal property” means that personal property in
which there is a written record of title or ownership and the value
of which in the aggregate is ten thousand dollars ($10,000) or more.
(f) For the purposes of this section, the “portion of the decedent’
s estate attributable to the decedent’s predeceased spouse” means all
of the following property in the decedent’s estate:
(1) One-half of the community property in existence at the time of
the death of the predeceased spouse.
(2) One-half of any community property, in existence at the time
of death of the predeceased spouse, which was given to the decedent
by the predeceased spouse by way of gift, descent, or devise.
(3) That portion of any community property in which the
predeceased spouse had any incident of ownership and which vested in
the decedent upon the death of the predeceased spouse by right of
survivorship.
(4) Any separate property of the predeceased spouse which came to
the decedent by gift, descent, or devise of the predeceased spouse or
which vested in the decedent upon the death of the predeceased
spouse by right of survivorship.
(g) For the purposes of this section, quasi-community property
shall be treated the same as community property.
(h) For the purposes of this section:
(1) Relatives of the predeceased spouse conceived before the
decedent’s death but born thereafter inherit as if they had been born
in the lifetime of the decedent.
(2) A person who is related to the predeceased spouse through two
lines of relationship is entitled to only a single share based on the
relationship which would entitle the person to the larger share.

6403. (a) A person who fails to survive the decedent by 120 hours
is deemed to have predeceased the decedent for the purpose of
intestate succession, and the heirs are determined accordingly. If it
cannot be established by clear and convincing evidence that a person
who would otherwise be an heir has survived the decedent by 120
hours, it is deemed that the person failed to survive for the
required period. The requirement of this section that a person who
survives the decedent must survive the decedent by 120 hours does not
apply if the application of the 120-hour survival requirement would
result in the escheat of property to the state.
(b) This section does not apply to the case where any of the
persons upon whose time of death the disposition of property depends
died before January 1, 1990, and such case continues to be governed
by the law applicable before January 1, 1990.

6404. Part 4 (commencing with Section 6800) (escheat) applies if
there is no taker of the intestate estate under the provisions of
this part.

6406. Except as provided in Section 6451, relatives of the
halfblood inherit the same share they would inherit if they were of
the whole blood.

6407. Relatives of the decedent conceived before the decedent’s
death but born thereafter inherit as if they had been born in the
lifetime of the decedent.

6409. (a) If a person dies intestate as to all or part of his or
her estate, property the decedent gave during lifetime to an heir is
treated as an advancement against that heir’s share of the intestate
estate only if one of the following conditions is satisfied:
(1) The decedent declares in a contemporaneous writing that the
gift is an advancement against the heir’s share of the estate or that
its value is to be deducted from the value of the heir’s share of
the estate.
(2) The heir acknowledges in writing that the gift is to be so
deducted or is an advancement or that its value is to be deducted
from the value of the heir’s share of the estate.
(b) Subject to subdivision (c), the property advanced is to be
valued as of the time the heir came into possession or enjoyment of
the property or as of the time of death of the decedent, whichever
occurs first.
(c) If the value of the property advanced is expressed in the
contemporaneous writing of the decedent, or in an acknowledgment of
the heir made contemporaneously with the advancement, that value is
conclusive in the division and distribution of the intestate estate.
(d) If the recipient of the property advanced fails to survive the
decedent, the property is not taken into account in computing the
intestate share to be received by the recipient’s issue unless the
declaration or acknowledgment provides otherwise.

6410. (a) A debt owed to the decedent is not charged against the
intestate share of any person except the debtor.
(b) If the debtor fails to survive the decedent, the debt is not
taken into account in computing the intestate share of the debtor’s
issue.

6411. No person is disqualified to take as an heir because that
person or a person through whom he or she claims is or has been an
alien.

6412. Except to the extent provided in Section 120, the estates of
dower and curtesy are not recognized.

6413. A person who is related to the decedent through two lines of
relationship is entitled to only a single share based on the
relationship which would entitle the person to the larger share.

6414. (a) Except as provided in subdivision (b), this part does not
apply where the decedent died before January 1, 1985, and the law
applicable prior to January 1, 1985, continues to apply where the
decedent died before January 1, 1985.
(b) Section 6412 applies whether the decedent died before, on, or
after January 1, 1985.
(c) Where any of the following provisions is applied in a case
where the decedent died before January 1, 1985, any reference in that
provision to this part shall be deemed to be a reference to former
Division 2 (commencing with Section 200) which was repealed by
Section 19 of Chapter 842 of the Statutes of 1983:
(1) Section 377 of the Code of Civil Procedure.
(2) Section 3524 of the Penal Code.

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