What happens if I don’t have a will or trust when I die? Does the state take all my property? : Law of Office of William J. Sweeney

What happens if I don’t have a will or trust when I die? Does the state take all my property?

by William J. Sweeney on 03/17/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

It is unlikely in California the state would get your property when you die because you don’t have a will or trust. California law decides who inherits your estate if you don’t have a will or trust. In the unlikely event there are absolutely no relatives that meet the criteria of the statute, the state possibly could receive your property.

The more important question is who will receive your property when you die without a will or trust? While California statutes determine who receives property in that circumstance, those persons may not be the ones you would choose to leave it to, or in the proportions you would like.

Just recently, I was talking to an attorney friend who had a client with three children. One of the children unfortunately was addicted to drugs. The client had a fairly substantial estate and was concerned if money was left to the child with the drug problem, he would use the funds to buy drugs and harm himself. The client wanted to leave the estate to the other two children. Two days before the client’s appointment with the attorney, the client died leaving no will or trust. Since the client had no surviving spouse, under California law the estate was divided equally among the three children. This was not what the client wanted, but because no provision had been made prior to the client’s death, an equal distribution occurred.

Over the years I have encountered people who have multiple children. While they would like to divide their estate equally, they realize because of health or other issues, one child is not able to earn a living, adequately care of themselves and/or needs additional assistance. In those cases they have provided for an unequal distribution, leaving more to the needy child because of their situation.

In other cases, a child may be receiving MediCal (Medicaid) and even a small bequest can cause loss of benefits. As soon as they exhaust the bequest, they have to go through the application process all over again to regain the benefits. By setting up a Special Needs Trust, you can avoid the loss of benefits while still leaving something to the child.

On occasion, people are concerned one of their children may lack sufficient mental capacity to handle an inheritance. While they want an equal division among the children, they do not want to make a bequest outright to that particular child. Frequently, they will provide for an outright distribution to the healthy children and retain the other child’s share in a trust supervised by a trustee of their selection to make sure that child receives what they need, when they need it.

It is so simple to address these issues to make sure your wishes are carried out by contacting an experienced attorney.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011

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