As much as we estate planning attorneys try to impress upon people the need to create a will, it still happens quite frequently that people will pass on without having created a will, even when they have minor or grown children. If your parent died without a will in California, then a state probate court judge will oversee the distribution of the parent’s estate according to California’s state intestacy laws.

When Your Parent’s Spouse Is Still Living

If your other parent is still alive (or if your parent had a different spouse), and they were still married at the time of the death, then the surviving spouse will receive a good amount of the deceased parent’s estate, although not necessarily all of it (if your parent and his or her spouse were divorced at the time of the parent’s death, the other spouse will not receive anything through the probate process).

A probate court will first look at the various assets in the deceased parent’s estate to determine whether they are community property or separate property. Community property is any and all property that your parent earned during the marriage or acquired with earnings during the marriage.

Separate property is any property that your parent owned since before the marriage or which was gifted to them individually. If your parents (or your parent and another spouse) were married for a long time and had few assets when they married, there is a good chance that the vast majority of their assets are community property (although sometimes prenuptial or postnuptial agreements will change what would otherwise be community property to separate property).

The reason that the difference between community property and separate property is important is because all of the community property will go to the surviving spouse. Again, this could be most if not all of the estate.

Separate property on the other hand will be treated differently. If there is one child, or if there was one child who has since passed but had descendants of their own, then one-half of the separate property will go to the surviving spouse, and one half will go to the child or the child’s descendants. If there were two or more children (or descendants of deceased children), then the spouse will get one-third of the separate property, and the remaining two-thirds will go to the children or descendants.

When There Is No Surviving Spouse

If your parent was not married at the time of death, then things will be quite different. All of the property goes to your parent’s lineal descendants, which includes children and the offspring of any deceased children of the parent. There is no distinction between community property and separate property as that only applies to marital situations.

The property will be divided equally between all living and nonliving children who themselves had children, with the nonliving children’s share going to their own children in equal shares.

That is probably bit hard to conceptualize, which is why an example will make it easier. Let’s say the parent had $300,000 in the estate at the time of death, and there were four children: Andrew, Bart, Cathy, and Denise, but Bart had died, leaving two children of his own, Xavier and Zachary.

In that situation the estate would be divided in four portions for the four children, with $75,000 each going to Andrew, Cathy, and Denise as the three living children. The $75,000 that would have gone to Bart is then split equally between Xavier and Zachary, with each getting $37,500.

All of this will be worked out in probate court, and the various parties might have their own legal representation to ensure that their interests are being treated fairly. Speak to an estate planning and probate attorney for guidance on your own situation.

Create or Update Your Will With a Pasadena Estate Planning Attorney

Estate planning and probate attorney Christopher B. Johnson, located in Pasadena, California, has years of experience in all aspects of estate planning, and works with clients from all walks of life to create estate planning tools that reflect their needs and those of their beneficiaries. To request an immediate consultation, contact him today at (877) 755-9178.