Who inherits when there is no will?

When the testator leaves a will, those who receive the property are known as “beneficiaries.” If the decedent died intestate, all property passes to the “heirs.” So, when there is no will, who gets what?

To answer the question, you must first know if the decedent was married. If so, then everything acquired during the marriage is presumed to be community property. Everything owned prior to marriage, or received as a gift during marriage, is separate property. The distinction is important because different rules apply to each type of property.

First, only the decedent’s undivided one-half of community property passes as part of his or her estate. The surviving spouse retains the other half. If the decedent left children who are not also children of the surviving spouse, then the kids get all of the decedent’s community property. Many widows have been distressed to learn that the step-children inherited one-half of the joint savings account. If the kids are all from the decedent’s marriage to the surviving spouse, then the surviving spouse gets all of the community property.

With respect to any separate property, it passes to the kids if decedent was unmarried. If a surviving spouse is left, though, that spouse gets one-third for life of all separate real estate and one-third outright of everything else. The kids get the rest. If there is no spouse or kids but a surviving parent, or no parents, or brothers and sisters … it gets a little complicated, so we will stop here. Just bear in mind that the issue of who the decedent would want to receive his property is irrelevant – the court just determines what family survives and applies the law.