This week’s question: My wife and I have a living
trust, wills, and related documents, but I am curious about this question. If
I were to die, just who are my heirs? Where would my property go? Where can I
go for more information about this topic?
/s/Henry H.
Almaden Valley
Dear Henry—
Thank you for emailing in that question. And it’s
good to know that you and your wife already have a living trust, wills, and
related documents. You should be in good shape legally if something were to
happen to you.
Listing your heirs really depends on a lot of things. First
of all, you would want to look at your legal residence, since many state laws
are different. Let us assume you live in California when you die.
By the way, if a person dies without a will, we say that the
person died “intestate”.
Next, you would look to see your marital status. If you are
married, your surviving spouse has certain rights if you die without a will.
Some of these rights are stated in California Probate Code §6401.
If a person dies as a single person, his or her property
usually passes to the decedent’s “issue”, or children, in
equal shares, under California Probate Code §6402(a), and if there is no
surviving “issue”, to the decedent’s parent or parents equally.
If there is no surviving “issue” (children) or
parent, then to the issue of the parents or either of them, i.e., brothers and
sisters of the decedent, under Probate Code §6402(c).
Of course, there are provisions in the law for more remote
relationships, just in case that becomes necessary. One can envision where it
may be necessary to pass property interests to great grandchildren, or even
first, second, or third cousins thrice-removed. Of course, the decedent may
not have ever met these people.
A colorful chart showing some of these relationships can be
found by going online to MyStateWill.com. You can readily see various
“Degrees of Kinship by the Rules of Civil Law” prepared by the
author of that work. A note of caution is needed, however, and that is to
always determine what state the information applies to, since each state has
different laws when it comes to trusts, wills, and related issues.
Another note of caution for our Almaden Times readers: you will always want to consult with
your own attorney to see how these general legal principles may or may not
apply to your particular situation. It seems like for every rule there are
numerous exceptions, and only your own personal attorney can advise you
properly.
/s/Donald J. DeVries
Almaden Valley
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502, telephone
at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite
200, San Jose, CA 95120. Your matters are personal and private, so of course,
he will not disclose your identity or any details about your situation. Mr.
DeVries writes this column to provide you with general information about
important legal matters affecting California residents—not to give you
legal advice about your specific matter. No attorney-client relationship is
created by these articles. The law is complex and constantly changing and
varies from state to state. So you should consult an attorney before taking
any action that would affect your personal or business matters.
