What happens when someone dies without a will?

This week’s question comes from Nathan P. in San Carlos, who asks:

Q: “My wife died suddenly. We were separated at the time of her death but hadn’t filed any kind of papers. We were just taking some time to figure out where we were at and where we were going after 20 years of being married. We had two children, aged 10 and 14. My 14-year-old son died in the same accident. I always told my wife that she needed to draft a will, but she believed doing so could invite death, so she has no will. Her mother is angry with me for our separation and is stating that she should get all her assets and the value of her share of our home, which we owned jointly. What happens when someone dies without a will?”

A: Nathan, I’m saddened to hear of your incredible loss. Your question is one that consumes many weeks of a law student’s life in a class called Wills and Trusts. There are special probate courts that handle matters of property following death. A decedent’s property subject to probate in California will pass either pursuant to a decedent’s duly admitted will (the “testate” case) or, if decedent dies without a will (“intestate”), by the rules of “intestate succession.”

Before providing a response, I want to make it clear that I am not a probate lawyer and strongly suggest you contact one. The following is a very general overview of the law in a situation such as yours; it is not legal advice.

It’s important to note that many assets never go through probate. Some property, such as joint bank accounts, insurance proceeds, 401Ks and other financial investments, will be given to the person who was designated as the beneficiary on the instrument at the time of death. If your wife had life insurance, a 401k plan, an annuity or some other account or financial instruments, check to see who the beneficiaries are. These accounts, policies, annuities and so on need not go through probate and should be distributed directly to the beneficiaries.

In a similar vein, you need to get a copy of the title to your property to examine the form of ownership interest that you and your wife had. Property may be held jointly or in common and/or may be community property. A joint tenancy/ownership is created when two or more persons acquire property in equal shares by the same transfer and at the same time, with identical ownership rights, pursuant to an instrument of transfer that expressly declares the co-ownership to be a joint tenancy. Joint tenants own equal interests in the property, all of which are subject to the right of survivorship; upon any joint tenant’s death, his or her interest passes by operation of law to the surviving joint tenant without going through probate.

Spouses and registered domestic partners also hold equal ownership interests in community property, but community property carries no right of survivorship unless title is expressly taken as “community property with right of survivorship.” So, get a copy of your title and review it with a probate lawyer.

In intestate cases, where there is a surviving spouse or registered domestic partner, the survivor is entitled to the decedent’s one-half interest in community property held by decedent at the time of death.

Given that your wife is survived by both you and your daughter, you both are entitled to a one-half share of your wife’s assets, such as non-community property financial accounts, real property, jewelry and cars. The fact that you were taking time apart does not change the order of intestate succession. Had you been divorced, you would have no rights under intestate succession.

The rules of intestate succession become more and more complex when there is no immediate family (spouse, domestic partner or children). Under such cases, if there is no spouse, the money would be distributed to the decedent’s children. If there is no spouse or children (and no children of their children), then the property would pass to the parents of the decedent. If there were no parents, but there were brothers or sisters of the decedent, then the property would pass to the brothers or sisters. If there were no parents, brothers or sisters, then the property would pass to the grandparents of the decedent. As you can see, this is quite arcane, and a specialist should be consulted.

Finally, you mentioned that an “accident” caused the death of your wife and son. Depending on whether the accident was in whole or in part caused by the fault of another, there may be the basis for a wrongful death action to be brought by you and your daughter. This type of case is handled by trial lawyers, like myself, through the civil courts. You should have the facts of the case reviewed by an experienced trial lawyer to see if there is a factual basis for a wrongful death claim. Any proceeds from settlement or a verdict of a wrongful death case would be paid directly to you and/or your daughter, would not be your wife or son’s property and would not pass through probate. As a wrongful death claim examines the nature and strength of the relationship between the claimant and the decedent, your separation would most likely affect the amount of recovery you may receive as damages.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

Christopher B. Dolan
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Christopher B. Dolan

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