Legal Question in Real Estate Law in California

Re: intestate

The above answers are incorrect because they make assumptions. Your husband is not dead, and living people have no heirs. Determining who is someone's heir is done at the time of death, not now. If you want to set something up, you should speak to a probate attorney to establish a will or trust.

For example, if you killed your husband you would not inherit anything, which would throw the previous responses off. There are many factors that come into play, including future divorces, children, death of children, etc.

Very truly yours,

Re: intestate

You would receive all of the community and quasi-community property. You would also receive 1/3 of his separate property and the 3 children would split the remaining 2/3 of his separate property.

The real question you are asking if how to characterize the properties that you currently own. The general rule is that property acquired during the marriage is presumed to be community property, but each case is different. The house he owned before you got married may or may not be his separate property depending on whether he added you to the deed and other factors.

You should really consult a local estate plannig attorney to get a will or living trust set up. You can avoid probate and minimize you estate tax with a properly drafted revocable living trust.

Re: intestate

I can chime in with a couple added comments to Mr. Starrett's analysis, with which I agree.

(1) Property that is owned by the two of you as "joint tenants" would also pass directly and automatically to you, without the necessity of probate.

(2) If community funds, such as the earnings of either of you during marriage, were used to make principal payments on any real estate, there will be at least some community ownership in that property. The more community funds invested, the greater the community interest - and this is without regard to what the deed or title on record says. These fractional interests can make property division in divorce or upon intestate death somewhat complex.

(3) If you don't have copies of the deeds to all of the four properties, you can get at least a preliminary idea of how title is held by checking at the county recorder's office. Although a professional title search would be necessary to have reasonable certainty about how title is held, you can probably get an idea from your own research, perhaps assisted by a clerk if you go at a time when they aren't busy.

(The primary possibilities are separate property, community property, community property with right of survival, joint tenants, and tenants in common.)

Re: intestate

If your husband dies WITH or WITHOUT a will, real property will automatically go to you IF the title (this is the deed) is held by

you and your husband as joint tenants, or as community property with right of survivorship. If it is held by him ALONE, and he dies WITHOUT a will, it will have to go to probate, but if acquired during the course of your marriage, it will be determined to be community property by the court, and will still go to you. If it is held by him ALONE and he does leave a will, it will go to whomever is in the will, but you would have a right to contest such a distribution if it is to someone other than you and the property is community property. There are a number of other manners in which title can be held, so it is best to get copies of the current deeds on file and take them to a real estate attorney to be certain of what will occur.