Does the Law Provide That Everything Goes to My Spouse and Kids?

Yes, when someone dies without a will they die “intestate”.  Each state has its own set of laws dealing with “intestate” succession.  The following chart in outlines the California Probate Code

 

If when you die you have:	Who gets what:
children but no spouse	children inherit everything
spouse but no children, parents, siblings, or nieces or nephews	spouse inherits everything
parents but no children, spouse, or siblings	parents inherit everything
siblings but no children, spouse, or parents	siblings inherit everything
a spouse and one child or grandchild	spouse inherits all of your community property and 1/2 of your separate property
a spouse and two or more children	spouse inherits all of your community property and 1/3 of your separate property children inherit 2/3 of your separate property
a spouse and one child and one or more grandchildren from a deceased child	spouse inherits all of your community property and 1/3 of your separate property children inherit 2/3 of your separate property
a spouse and two or more grandchildren from a deceased child	spouse inherits and 1/3 of your separate property children inherit 2/3 of your separate property
a spouse and parents	spouse inherits all of your community property and 1/2 of your separate property parents inherit 1/2 of your separate property
a spouse and siblings, but no parents	spouse inherits all of your community property and 1/2 of your separate property siblings inherit 1/2 of your separate property

 

This may seem like it would be acceptable to you.  Your spouse is getting an inheritance, so are the kids. But here are some examples of how the laws can fail many common family situations.

If both parents of minor-aged children die intestate, then the children are left without a legal guardian. There are no provisions in the law that automatically provide for who would be appointed a guardian.  This would be left up to the Courts and a judge may not make the decision that you, as a parent, would have made.

Many Americans have also remarried, and–through adoption and stepfamilies–millions of children are living in blended families.   The laws of intestacy do not take into account your unique family dynamic.  The outcome could result in an unintended benefit or unintended disinheritance.  Your estate and family members could be placed at risk.  Of course, with a will or trust, you can control your estate and essentially eliminate the risk of these results.

Intestacy provides no asset protection or preservation benefits. Without any protections in place, an estate’s assets are still vulnerable to creditors, lawsuits, and others who may claim entitlement to the property. These claims would take precedence over the statutory requirements for inheritance. In other words, the family may not receive the lion’s share of the estate. They’d get the leftovers.

The best way to safeguard and pass along what you’ve worked so hard to build is to talk to a qualified estate planning attorney.  Protect yourself, your family and your assets by contacting us today.