Castellan Law Group APC
When a person dies without a will, a person dies intestate and his or her assets must be
administered through the court system. According to California law, when someone dies in
California without a will, that person’s assets and property will be distributed according to the
state’s intestacy laws. Intestacy laws are a set of default rules that determine how an individual's assets will be distributed if her or she dies without a valid will.
Who Gets What if I die without a Will?
Under intestate succession, who gets what depends on who your closest relatives are when
you die. For instance, if the person who died was married, his or her spouse will inherit their
community property and a portion of their separate property, depending on whether the person had children or other surviving relatives. If the person who died was not married, their assets will be distributed to their children, grandchildren, parents, or siblings, in that order. If the person had no living relatives, the assets will go to the state of California. Here’s a quick overview:
As the chart above illustrates, it is important to note that when a person dies without a will,
the distribution of this person’s assets may not align with his or her wishes. Therefore, it is
recommended that individuals create a will or other estate planning documents to ensure that their assets are distributed according to their wishes.
Probate
Probate is the legal process that occurs after a person dies, during which his or her assets are distributed to his/her heirs and beneficiaries, and their debts are paid. The purpose of probate is to ensure that the deceased person’s estate is distributed in accordance with his or her wishes, or if there is no will, in accordance with state law.
The probate process typically involves several steps, including:
1. Filing a petition with the probate court to open the probate case.
2. Identifying and inventorying the deceased person’s assets.
3. Paying off any outstanding debts and taxes.
4. Distributing the remaining assets to the beneficiaries or heirs according to the terms of
the will or state law.
Depending on your assets, the following chart shows how much an intestate party may pay
in attorney’s fees and personal representative compensation if their assets are handled through the court system. This chart shows California probate fees for ordinary services provided by the personal representatives and their attorneys:
The probate process can be time-consuming and expensive, as it involves court fees, legal
fees, and other expenses. Additionally, probate proceedings are generally public record, which means that anyone can access information about the deceased person’s assets and how they are distributed.
However, not all assets go through probate. Assets that are held jointly with the right of
survivorship, such as joint bank accounts, may automatically pass to the surviving joint owner without going through probate. Similarly, assets held in a trust or designated as payable-on-death or transfer-on-death typically bypass probate which is one of the primary advantages of creating a living trust as discussed further below.
Protecting your family and your assets
What are my options?
Preparing a Will
If you do not own any property, but have other assets and have specific needs as to who
should get what, having a will prepared would provide you with the following advantages:
• Control: A will allows you to control how your assets are distributed after your death. You
can specify who will receive specific assets, designate guardians for minor children, and
name an executor to manage your estate.
• Avoiding intestacy: Without a will, your assets will be distributed according to California's
intestacy laws. Having a will ensures that your assets are distributed according to your
wishes, rather than default laws.
• Simplicity: A will is a simple and straightforward way to express your final wishes. It is
typically less expensive and time-consuming than other estate planning tools, such as
trusts.
• Flexibility: A will can be updated or changed at any time during your lifetime, as long as
you are of sound mind and have the capacity to make decisions.
• Minimizing family disputes: A will can help prevent family disputes and legal challenges
to your estate. By clearly outlining your wishes, you can minimize the likelihood of
disagreements among family members.
• Planning for tax liabilities: A will can help you plan for potential estate tax liabilities. You
can structure your estate plan to minimize tax liability and ensure that your beneficiaries
receive the maximum benefit from your assets.
Creating a revocable living trust
Alternatively, a revocable living trust can be a better option than a will in California if you
want to avoid probate, maintain privacy, plan for disability, or maintain control over your assets:
• Avoiding probate: One of the primary advantages of a revocable living trust is that it can
help your estate avoid the time-consuming and often expensive probate process. Assets
held in a trust are typically distributed to beneficiaries outside of probate, which can save
time, money, and provide greater privacy.
• Control: A revocable living trust allows you to maintain control over your assets during
your lifetime. You can serve as the trustee of the trust and manage the assets as you see fit.
Additionally, you can change the terms of the trust or revoke it entirely if your
circumstances change.
• Flexibility: A revocable living trust can be a flexible estate planning tool that can be
tailored to meet your unique needs and circumstances. You can use the trust to plan for
various contingencies, such as incapacity or disability.
• Privacy: Unlike the probate process, which is a matter of public record, a revocable living
trust can be kept private. This means that the details of your assets and how they are
distributed will not be publicly disclosed.
• Minimizing estate taxes: While a revocable living trust does not provide any direct tax
benefits, it can help minimize estate taxes by reducing the size of your taxable estate. By
transferring assets to the trust during your lifetime, you can reduce the value of your estate
and potentially minimize estate tax liability.
Overall, a will is a fundamental estate planning tool that can provide significant advantages in
terms of control, simplicity, flexibility, and minimizing disputes. However, under the right
circumstances, a revocable living trust can provide additional advantages in terms of privacy and avoiding probate which makes it an even more attractive estate planning tool for many individuals. However, it is important to consult with an experienced estate planning attorney to determine whether a will or revocable living trust is appropriate for your individual circumstances.
Can I disinherit a child or other persons?
Yes, when creating a trust or will, you can disinherit specific people from receiving any of
your assets or property.
Specific burial wishes
If you have specific burial wishes, it is imperative that you create an estate plan. Often times,
the ones left with the decisions fail to meet decedent’s wishes.
Get more information:
If you have thought about but have been unable to get the legal advice you need when it
comes to planning/sorting out your affairs, contact our office for a consultation. Our firm prides itself on one-on-one consultations with an experienced attorney who can assist you in making the right decisions for your particular situation. Do not be fooled by notaries or paralegal service providers. Matters such as these must be taken seriously and must be structured to best benefit your needs and the needs of your loved ones when you are gone.
Contact us today:
Castellan Law Group APC
1100 W La Habra Blvd.
La Habra, CA 90631
Tel: (626) 662-0286
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