California Intestate Succession Rules

[magic_man]

What is the name of your state? California

I am considering the various options for IRA beneficiary designation. I have decided that my spouse will be named as my sole primary beneficiary, so there's no question there. My question has to do with how to properly designate the secondary beneficiary (in case my spouse predeceases me).

We live in California. We have one daughter and we will not have any more children. Our daughter has reached the age of majority. I would like her to be the sole secondary beneficiary.

If my daughter has children and my spouse and daughter have both predeceased me, I would like my daughter's children (my grandchildren) to inherit the IRA assets. It's my understanding that in order to accomplish that, I can designate my secondary beneficiary as "my descendants who survive me, per stirpes". If my husband dies before I do, my daughter would inherit the IRA; if she has died, then her children would inherit the IRA. Does that sound correct?

If I designate my daughter as sole secondary beneficiary by naming her as an individual instead of the "per stirpes" designation as above, who would inherit the IRA under California law if she predeceases me? Would the money automatically go to her children (my grandchildren), if any, or would the money go to my siblings? My parents are both deceased. My limited understanding of the California Probate Code leads me to believe that my siblings, not my grandchildren, would inherit the IRA assets if I name my daughter as sole secondary beneficiary without the "per stirpes" designation and she has already died. Is my understanding correct?

Any help would be greatly appreciated! Thanks very much.

 

[seniorjudge]

Q: If my husband dies before I do, my daughter would inherit the IRA; if she has died, then her children would inherit the IRA. Does that sound correct?

A: Yes.



Q: If I designate my daughter as sole secondary beneficiary by naming her as an individual instead of the "per stirpes" designation as above, who would inherit the IRA under California law if she predeceases me? Would the money automatically go to her children (my grandchildren), if any, or would the money go to my siblings?

A: California Intestate Succession Laws

If any part of a California decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse/domestic partner. In California, a surviving spouse or domestic partner is generally first in line to get any assets from the intestate estate, including any community property, quasi-community property, and separate property that belonged to the decedent.

The surviving spouse or domestic partner is entitled to the one-half of the community or quasi-community property that belonged to the decedent. In addition, the surviving spouse or is entitled to the following amounts of separate property in the estate:

* If there is no surviving issue (i.e., child), parent, sibling, or issue of a deceased sibling of decedent, the surviving spouse is entitled to the entire intestate estate.
* If the decedent leaves a surviving child, children of that child if the child predeceases the decedent, parents, or siblings, the surviving spouse gets one-half of the intestate separate property.
* If the decedent leaves more than one child or children of a predeceased child, the surviving spouse gets one-third of the separate property in the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse or domestic partner as indicated above, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

1. Decedent's descendants (e.g., children and grandchildren), per stirpes.
2. Decedent's surviving parent or parents equally.
3. Issue of decedent's parent or parents, split equally if they are all of the same degree of kinship to the decedent (e.g., all decedent's siblings survive) or split per stirpes if unequal (e.g., some siblings survive and some are dead but survived by children).
4. Decedent's surviving grandparent or grandparents equally.
5. Issue of decedent's grandparents, per stirpes.
6. Issue of a predeceased spouse. To be eligible to real property, the former spouse cannot predecease the decedent by more than 15 years. For personal property, the former spouse cannot predecease the decedent by more than 5 years.
7. Decedent's next of kin in equal degree. If a claim is made through two or more different ancestral lines, those who claim through the ancestor nearest to the decedent are preferred over others.

3. State of California. If there is no taker under any of the above provisions, the intestate estate reverts (escheats) to the state of California.

California Intestate Succession Law Fun Facts

* Relatives of the half blood generally inherit the same share they would inherit if they were of the whole blood (except in certain cases involving the severing of the relationship between a child and the child's natural parent due to adoption).
* Relatives of the decedent conceived before his death, but born thereafter inherit, as if they had been born during the decedent's lifetime.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of California gets the intestate estate.
* Evildoers beware! Any person who intentionally and feloniously kills the decedent cannot inherit any of decedent's assets or otherwise benefit from the killing. The murderer is treated as if he or she had predeceased the murdered decedent, therefore being entitled to nothing (except some jail time). Felonious and intentional killing of the decedent can be established by a criminal conviction or a civil trial based on a preponderance of the evidence.
* On a similar note, a person who physically abuses, neglects, or commits fiduciary abuse of a decedent who was an elder or dependent adult is also prevented from profiting after the decedent's death. Instead of inheriting from the decedent, the abusive person is treated as having predeceased the decedent (thus becoming ineligible to inherit).
* California's intestate succession laws, as well as other laws dealing with wills and decedents' estates, can be found in the California Probate Code.

Copyright 2002 - 2007, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

http://www.finance.cch.com/pops/c50s10d190_CA.asp

 

[magic_man]

Seniorjudge,

Thanks so much for your VERY quick reply!

Please confirm that I'm interpreting the information you provided correctly. From the information you provided regarding California intestate succession law, I am understanding that if both my spouse and daughter predecease me and I do have grandchildren, then the IRA assets would go to my grandchildren automatically, whether I have chosen the secondary beneficiary as "my descendants who survive me, per stirpes" or named my daughter individually as secondary beneficiary, without any "per stirpes" designation. And if that's the case, then it would not matter which designation I choose. Is my understanding correct?

I read the California Probate Code directly:

"6402. Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

Then, does "issue of the decedent" include both my children (if they survive) and my grandchildren?

Thanks again! I really appreciate your help in getting my affairs in order.

 

[divgradcurl]

Is my understanding correct?

Yes, it is.

EDIT: I am assuming that your spouse has no heirs of his own other than your daughter (such as a child from a previous marriage).

 

[magic_man]

Thanks for your reply, divgradcurl. Yes, my spouse has no other children other than our daughter.

In this scenario, does the term "issue of the decedent" include both my child (if she survives) and my grandchildren (if any)?

 

[hudson]

In addition to the the above information, which is helpful, you may also find the programs at this site to be very useful: MyStateWill.com

Their programs interpret the intestate laws for you and show you how much everyone will get.