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Birthright: the biggest misnomer in probate

Many people make assumptions about family, particularly their parents. They assume that their parents should take care of them in childhood, that they will step in and help their parents a bit during their golden years if needed, and when their parents are gone they will take care of them once again -- by leaving their estate.

Some people refer to this as "birthright," but this idea is a suggestion at best, especially if others are involved. The truth is that no one has a real birthright. It will be the estate plan or intestacy laws (in the absence of a will) that will dictate whether or not anyone has a right to the property of a decedent.

Community and separate property

When someone dies, it will be in one of two situations. They will be married or unmarried. In California, the inheritance hierarchy moves a bit differently depending on marital status. Being married puts one more major player into the inheritance, and property is further divided into the categories of community property or separate property. Community property are things that belong to the marriage. This means they were obtained and held by the couple together after they were married and living in the state of California. This could be joint accounts, a house, retirement plans, etc.

Separate property are things that each person owns independently of the other. It consists of belongings that person had before the marriage or inheritances that were left to a person individually. For example, an heirloom necklace might be handed down to a specific person that is indicated in a will or a trust as part of an estate plan.

How intestacy laws work in California

Not everyone takes the time to draft a will or trust, because they believe it will be sufficient to let their estate be divided among their closest relatives, whether there is a will or not. While that is true to some extent, that division isn't necessarily delivered in the proportions that are expected, and they don't always fall in line with what is preferred.

If a person dies without a will or estate plan, the state if California steps in and decides how property should be divided, guided by the laws of intestacy which define priority relationships within a family to determine who gets what. A person's actual relationships might reflect something much different.

Married decedents

If a married person dies in California without a will or trust, any property that was considered community property reverts to the surviving spouse. Separate property is divided according to the laws of intestacy.

If the person had one surviving child, or their deceased child had children, half of the estate goes to that person and the other half goes to the spouse. If there were two or more kids the spouse gets one third of the estate, and the remaining is divided among the children.

If there are no surviving children in the picture, the decedents parents are next in line for that half of the estate, and the other half goes to the spouse. If their parents are deceased; the decedents siblings are next in line, followed by nephews and nieces. If relatives do not claim their inheritance, it will go to that state of California.

Unmarried decedents

If a person dies unmarried, the role of spouse is taken out of the equation, but this still leaves no absolute guarantees for their children or other relatives. The "inheritance hierarchy" looks like this;

Divided equally among the decedent's children. If one of their children is deceased, their children get their portion of the estate.

  • Inherited by surviving parents
  • Divided equally among siblings
  • Inherited by grandparents
  • Divided among aunts and uncles that are the children of grandparents
  • Divided among aunts and uncles children (cousins)
  • Divided among more distant cousins, or whoever can be considered next of kin
  • If no relatives make a claim, the estate goes to the state of California.

A matter of value

When it comes to actual money, determining value is fairly straight forward. When you're considering belongings that mean something different to different people, determining what something is worth becomes more complex and more personal. If the state divides belongings, everything is stripped to it's dollar value and this can take away from what it really is worth. Also, when the state is making these determinations, it can also take a good deal of time -- something else most families value.

By making provisions in an estate plan for exactly where your assets should go, you leave the control to people you trust. You can decide whether you want to give to charitable causes, rather than relatives or the state. You can judge who can best benefit from an inheritance, or help someone reconnect with a memory by leaving them a special gift.

The biggest caveat of all

While this is a good outline for a basic estate (and even this seems very confusing), a nearly unlimited number of circumstances can quickly complicate the matter.

One wrinkle involves property with more than one owner (jointly owned property). Another involves property that is quasi-community. Yet another involves will contests, when one or more heirs contests the validity of a will, specific distributions or even the intent of the decedent. Undue influence can play a role. Even a probate judge's discretion in some situations can throw a wrench into the mix.

The truth is, you should consult a probate attorney whether you were named as the executor in a will or are a family member of a decedent who thinks they might have a claim. 

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