Disclaimer: This article provides general information about California law and is not legal advice. Consult a qualified attorney to address your specific situation.
Detailed Answer
1. What Is an Intestate Share in California?
When a person dies without a valid will, their assets pass by intestate succession under the California Probate Code. A surviving spouse or registered domestic partner generally receives:
• All community property.
• A share of the deceased’s separate property (often one-half or all, depending on other heirs).
2. Life Estate Election Under Probate Code §§6400–6404
California law allows a surviving spouse or domestic partner to elect a life estate instead of an intestate share of separate property. Under Probate Code §6400, you may choose a life estate in the decedent’s separate real property rather than take your intestate share in cash or in-kind.
• A life estate grants you the right to occupy and use the real property during your lifetime.
• At your death, the property passes to the remainder beneficiaries under intestate succession or a will.
For full text, see Probate Code §6400: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6400.&lawCode=PROB.
3. How to Elect a Life Estate
- File a petition for probate or letters of administration. The court issues “letters” to the personal representative.
- Within four months after the letters are issued, file a written declaration of election to take a life estate under Probate Code §6403.
- Serve the declaration on the personal representative and all heirs or devisees.
- Obtain a court order confirming your election.
4. Factors to Consider
- Property Value: A life estate may be less valuable than a full intestate share, depending on the property’s market value and your life expectancy.
- Tax Implications: A life estate can affect property tax reassessment and potential capital gains on a future sale.
- Maintenance & Liabilities: As life tenant, you must maintain the property and pay property taxes and insurance.
- Impact on Heirs: Remainder beneficiaries cannot occupy or sell the property until your death.
Helpful Hints
- Consult Probate Code §§6400–6404 early. Timely filing protects your election rights.
- Compare the present value of a life estate versus a full intestate share.
- Review tax rules on Proposition 58 (parent–child transfers) if applicable.
- Work with a probate attorney to draft and file the election paperwork correctly.
- Keep records of all filings and court orders.