Inheritance without a will

If the deceased did not have a will, the assets will be distributed according to the state law.  Exactly who gets what will be determined by the nature of the assets (whether it is a real property or personal property, and whether it is marital or personal property), whether the deceased was married and whether there are any children from the previous and current marriage.  Here is a nutshell from the more commonly seen scenarios:

1. The deceased was married and has children; these children are also children of the surviving spouse

  • for separate personal property – 1/3 will go to the surviving spouse while 2/3 will be divided by all the children equally
  • for separate real property – surviving spouse will get 1/3 of the life estate; the children will divide the real property equally subject to the surviving spouse’s 1/3 life estate
  • for community property (both real property and personal property) – the surviving spouse takes it all

2. The deceased was married and has children; at least one child is NOT the child of the surviving spouse

  • for separate personal property – 1/3 will go to the surviving spouse while 2/3 will be divided by all the children equally
  • for separate real property – surviving spouse will get 1/3 of the life estate; the children will divide the real property equally subject to the surviving spouse’s 1/3 life estate
  • for community property (both real and personal properties) – the deceased’s share will be equally divided by all the children. Note that the surviving spouse still keeps his/her half of the community property.

3. The deceased was married but no children and no other descendants

  • for separate personal property – all goes to the surviving spouse
  • for separate real property –
    • if both father and mother still alive, then 50% goes to surviving spouse, 25% goes to father, 25% goes to mother
    • if only father or only mother still alive, but there are surviving siblings (or siblings have descendants), then 50% goes to surviving spouse, 25% goes to surviving parent, 25% goes to siblings
    • if only father or only mother still alive, but there is no sibling or descendants, then 50% goes to surviving spouse, 50% goes to surviving parent
    • if no surviving parent, but there are surviving siblings (or siblings have descendants), then 50% goes to surviving spouse, 50% goes to surviving siblings
    • if no surviving parent, and also no siblings or descendants, then 100% goes to surviving spouse
  • for community property – deceased’ share all goes to surviving spouse

4. The deceased is not married but has children

  • everything (both personal and real properties) go to children to be divided equally

5. The deceased is not married and has no children, then it depends on who survives the deceased

  • if both father and mother are alive, then 50% goes to father, 50% goes to mother
  • if only father or only mother is alive, but there are surviving siblings, then 50% goes to surviving parent, 50% goes to siblings to be equally divided
  • if only father or only mother is alive, but there are no siblings nor did the siblings have any descendants, then 100% goes to surviving parent
  • if no parent is alive, but there are siblings, then 100% goes to the siblings