I am 51 owner of an LLC with my husband. We both have children from a previous marriage: if we both died at the same time would my share go...

Question

I am 51% owner of an LLC with my husband. We both have children from a previous marriage: if we both died at the same time would my share go to my children? We have no trust yet.

Answer

I'm afraid more information is required. Is this community property or separate properrty of you and your husband. The laws of intestacy treat separate porperty differently than community. Regardless, you clearly need to prepare estate planning documents to accurately reflect your wishes, and not rely upon the state laws of intestacy to control disposition on death. You have also assumed a joint death at the same time. Thisis most unlikely.

See an attorney for help. If you refuse to do so, look at the California Statutory will form. It may be better than nothing (which seems to be where you are now). Why take chances with the estate you have accumulated?

Answer

Actually in an odd twist of the law, his share would go to your children and your share would go to his, if I read the probate code correctly. The rule is that if two people die in such a manner that it is not possible to establish who died first, each person's estate is probated as if they had survived the other person. The way I read that in a husband and wife scenario is it is divided as "what's yours is his and what's his is yours." However, there is a further complication. That only applies to your community property. In the absence of a will or trust, separate property is divided between the surviving spouse and any children or other heirs according to a formula that depends on the number of heirs. As you can imagine this can lead to a lot of litigation among heirs even if one of you clearly survives the other. If you die concurrently, it just gets extra messy.

In short, you are setting one of you and and both sets of your kids up for a pretty significant mess if you don't get a trust and/or wills set up.