According to the Center for Retirement Research at Boston College, a substantial percentage of Americans over the age of 70 years of age-37 percent-did not have a Will or Trust to Dispose of their assets as of 2018.  Indeed, I am frequently contacted by people who have recently lost a love one who did not have a Will or Trust in place and are at a loss when it comes to navigating the process of marshalling the assets and administrating the Esate of their recently departed friend or family member. Losing a loved one is undoubtedly a challenging experience, and dealing with the legal aspects of their estate can add an extra layer of complexity. In California, when someone passes away without a will or trust, the process of intestate succession comes into play. This article aims to provide a very high level overview on the key aspects of this process, exploring the steps involved and the implications for heirs and beneficiaries.

Understanding Intestate Succession:

Intestate succession refers to the legal process that determines how a deceased person's assets are distributed when there is no valid will or trust in place. The California Probate Code governs this process, outlining a specific order of priority for distributing the deceased individual's estate.

1. Identifying Heirs:

   • The first step in the intestate succession process is identifying the deceased person's heirs. Heirs typically include surviving spouses, children, parents, and, in some cases, more distant relatives.

2. Intestate Succession Order:

   • California law establishes a hierarchy for distributing assets in the absence of a will or trust. Surviving spouses and children are given top priority, with the estate being distributed among them based on specific rules.

3. Community Property:

   • California is a community property state, meaning that assets acquired during marriage are generally considered community property. In the absence of a will, the surviving spouse may inherit a significant portion of the community property.

4. Distribution Among Children:

   • If the deceased person has surviving children but no surviving spouse, the estate is typically divided among the children. The distribution may vary depending on the number of children and whether they are from the same or different marriages.

5. Parents, Siblings, and More Distant Relatives:

   • If there are no surviving spouses or children, the law moves down the line of succession to parents, siblings, and more distant relatives. The process continues until eligible heirs are identified.

The Probate Process:

When someone dies intestate in California, the estate usually goes through the probate process. Probate is a court-supervised process that involves validating the deceased person's will (if there is one) or determining the legal heirs and distributing the estate accordingly. When someone dies without a Will in California, in general, someone must petition the court to be appointed personal representative of the estate and petition the court to sign letters of administration that grant the personal representative powers and authority to administer the intestate Estate. Normally the personal representative is a friend or relative of the decedent although this is not necesarilly the case.  The court will often require the personal administrator to post a bond for a certain amount. The personal representative will be responsible for marshalling assets of the estate, filing an inventory and appraisal, liquidating assets including real and personal property,  filing an accounting, and distributing the assets.  Attorneys and accountants often assist personal representatives in their roles.

Challenges and Considerations:

Intestate succession can present challenges, including potential disputes among heirs, delays in the distribution of assets, and the involvement of the court in the decision-making process. Additionally, the distribution may not align with the deceased person's preferences, and that is why it is important to have a Will or Trust in place. Moreover, administering an intestate succession is often more time consuming and expensive when compared to administering a Trust Estate.

Conclusion:

While the process of intestate succession in California provides a framework for distributing assets when there is no will or trust, it may not always align with the deceased person's wishes. To ensure a more personalized and streamlined distribution of assets, individuals are encouraged to engage in estate planning and create a will or trust. Seeking legal advice and guidance during this process can help navigate the complexities of intestate succession and provide peace of mind for both the deceased person and their heirs. It is also important to be aware that certain assets such as accounts with Designated Beneficiaries and Real Property held as Joint Tenancy with a right of survivorship might not be subject to Probate and their may be simpler means of transferring title to such assets such as filing an Affidavit of Death with the County Recorders' Office.  I plan to write posts on assets held as Joint Tenancy or in Designated Beneficiary Accounts on future postings.

The Law Offices of Mark Ruiz can assist with helping guide you through the process when you lose a loved one who did not have an Estate Plan in Place.  Please do not hesitate contact us at [email protected]

LEGAL DISCLAIMER

This article is intended for general information purposes only.  Any legal analysis or other content should not be construed as legal or professional advice or substitute for such advice.  No attorney-client or confidential relationship is formed by transmission of information.  If you require legal or professional advice, please contact an attorney or other suitable professional advisor.  The choice of an attorney or other professional is an important decision and should not be based solely upon advertisements and blog postings.