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Dying Intestate Can Rip Families Apart

Posted by Jennifer V. Gateb | Dec 14, 2016 | 0 Comments

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Dying without a will can have a devastating impact on a family. Without a will, property is divided according to state law, without regard to your wishes or expectations. Beloved family members and friends who do not fall under the intestate succession laws could be left with nothing while distant, unknown or estranged family members may inherit your property. A simple will can help avoid dying intestate and keep your family together after your death.

The loss of a friend or family member can be a tragic time. However, fighting over their money and property can bring out the worst in people. When an individual prepares a clear estate plan to distribute their property, everyone involved understands that the property was distributed according to the decedent's wishes. Without an estate plan, battles over property distribution can tear a family apart.

An individual who dies without a will is considered to have died “intestate”. Without an estate plan in place to transfer property, the courts will step in to distribute the decedent's property through a process known as probate. This can be an expensive and drawn-out process that leaves grieving friends and family in limbo for months or years.

During probate, the court will identify and inventory property, appraise the value of property, pay out any debts and taxes, deduct court, legal and probate fees, and distribute any property left over according to state intestacy laws.

Under California intestate succession laws, a surviving spouse generally receives the decedent's share of community property. If there are no surviving children, parents, siblings or children of siblings, the surviving spouse receives the decedent's separate property. If the decedent left at least one parent, child, sibling or child(ren) of a sibling, the surviving spouse gets either (a) half of the separate property; or (b) one-third, if the decedent left more than one such issue.

Without a surviving spouse, the distribution of property can be more complicated, depending on the number of descendants, children, grandchildren, parents, siblings, grandparents or nieces and nephews. If there are no surviving heirs, the decedent's property is usually distributed to the State of California.

California's intestacy laws can be confusing, especially given the makeup of modern families. A couple separated for years may still be considered married under the law, while a long-term partner may have no legal claim for property of the estate. If the individual or couple moved between states over the years, their property accumulated over that time may be partially considered individual property or common property. This can lead to unintended and unequal distribution of their property after death and cause fighting between family members.

There are separate considerations regarding half blood relatives, adopted children and individuals who do not survive very long after the decedent passes away. Individuals involved in killing the decedent, or abusing an elderly decedent may be prevented from benefiting from their actions. Talk to your attorney with any questions about intestate succession or property transfers after death.

If you have any questions about estate planning, making a will or preparing a trust, contact Butterfield Schechter LLP. We will advise you on your estate planning options, help you protect your family, and avoid conflicts that can later tear families apart. Contact our office today with any questions on how we can help you and your family succeed.

About the Author

Jennifer V. Gateb

Jennifer V. Gateb practices in the areas of general tax and estate planning, ERISA (Employee Retirement Income Security Act of 1974) and related benefit matters.

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