The Probate Process in California
Responsibilities of Executor or Administrator
Out-of-State Issues During Probate
WHAT HAPPENS IF A PERSON DIES WITHOUT A WILL?
One must look to California probate law which controls. The California probate estate of a deceased loved one has to be administered when a person passes away and leaves no Will distributing his/her property. If you die without a Will in California, you die “intestate” and your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in California.
Only assets that would have passed through a Will, if you had one, are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name. However, many valuable assets don’t go through probate and are not affected by intestate succession laws. Here are some examples:
- Property you’ve transferred to a living trust.
- Life insurance with named beneficiary(ies).
- IRA, 401(k), or other retirement account with named beneficiary(ies), other than the estate.
- Securities held in a transfer-on-death account (TOD).
- Financial assets held in Payable-on-Death accounts (POD).
- Vehicles held by Transfer-on-Death registration, or
- Property you own with someone in joint tenancy or with a spouse as community property with the right of survivorship. These assets will pass to the surviving co-owner, whether or not you have a will.
Determining the intestate heirs involves answering a series of questions about the person who died. The first question is whether the decedent was married.
- If the decedent was married, the question is whether the decedent owned community property, separate property, or a combination of the two.
- The decedent’s community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership.
- The decedent’s separate property is distributed as follows:
- The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or sister.
- The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
- The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
- The surviving spouse receives only one-third of the separate property if the decedent left more than one child.
- The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
- The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.
- If the decedent was not married, the estate is distributed as follows:
- To the decedent’s children, who take in equal shares if they are in the same generation.
- If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent’s parents.
- If there are no parents living, the estate is distributed to the “issue of the parents.” If the decedent had brothers or sisters, they will inherit the estate. If there are deceased brothers and sisters, and they had issue, the issue will inherit the share of the estate that the deceased brother or sister would have inherited.
- If there are no brothers or sisters, the decedent’s grandparents will inherit the estate.
- If there are no living grandparents, then the “issue of the grandparents” will inherit the estate. This could include the decedent’s aunts and uncles, or if there aren’t any aunts and uncles, the decedent’s cousins. Generally, the oldest generation that has surviving issue will inherit, but if there are deceased issue in that generation, their issue will inherit their share.
- If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to “next of kin in equal degree,” generally meaning more distant cousins.
If you are trying to probate an estate after death, the process can be confusing. In the process you may not know what to do. That is where I can be of help. I make a difficult and bewildering probate or trust administration process as simple as possible. If you need the general assistance of a probate lawyer, please contact me for a free consultation. You can reach me by phone at 760-989-4820, by email at [email protected] or through my online contact form.
From my office in Southern California, I represent families in all California counties, including Southern California Counties such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
Copyright © 2020, William K. Sweeney, Attorney at Law. All rights reserved.