It’s always best for any family to have an estate plan in place. As much as none of us want to think about the possibility of death, the only thing worse than leaving our family bereaved is leaving our family bereaved and having to work through an estate going through probate without a will. Talk with a probate lawyer in San Diego, CA to get your estate planning done.
What Happens If an Estate Goes Through Probate Without a Will in California?
When someone passes away without a will in California, their estate enters a process known as “intestate probate.” During probate, the court looks into an estate and determines how the assets are to be distributed, makes sure all debts are settled, and establishes who will oversee that process. This can be difficult enough even when an estate plan is in place, but when it happens and the deceased has left no instructions, the court will make the decisions according to California law and in ways that may not be at all what the deceased would’ve wanted.
Intestate Succession
California’s intestate succession laws are in the California Probate Code and dictate who inherits based on their relationship to the deceased. The law will essentially prioritize relatives by how close they are to the deceased, and the precise way this is done will depend on whether the deceased is married and had children.
If someone dies unmarried, with no children, their estate would normally go to their own parents (assuming their parents are still alive). If the parents have already passed, then siblings are likely to be the next in line to inherit.
If the deceased was married but had no children, their spouse would inherit all community property, and any separate property would normally be shared with the parents or siblings of the deceased. Generally, community property is anything that either party acquired during the marriage, while separate property is anything owned before the marriage or received as a gift or inheritance. If there is no will, there’s not much that you can do to change this hierarchy of outcomes.
Appointing an Administrator
An estate must have an administrator, and if there is no will in place that names one, the probate court will appoint someone to do this. Under California law, the administrator will typically be a surviving spouse, child, or another close relative. If none of these relatives are willing to do it, or if there are too many disputes, the court may appoint a public administrator. The administrator’s job will be to inventory all assets, pay any outstanding debts and taxes, and then distribute everything that remains of the estate.
Inventory and Appraisal of the Estate
The administrator will value everything in the estate. This includes not only bank accounts and money, but also real estate and other property, personal belongings, and even things like retirement accounts.
You may need an official appointee of the court to appraise any property, excepting in cases where an estate qualifies for a simplified procedure. It’s important that a neutral third party properly evaluate an estate so that it can be dealt with legally. This step can delay proceedings, though, especially if assets are hard to locate or their ownership is disputed.
Paying Debts and Taxes
Before the heirs can receive anything, the administrator of the estate must settle all debts and pay all taxes. Under California law, a public notice must be made to creditors of the deceased, and they are then allowed four months to file a claim for any unpaid bill or loan.
If the estate does not have enough funds to cover these debts, assets such as property or vehicles, will be sold to pay them. If there is no will in place, there is no way for heirs to prioritize what is sold in order to keep a sentimental item.
Distribution of Assets to Heirs
Finally, once all debts are paid, anything that remains is distributed to the heirs. This is where not having a will makes the most difference to the outcome. Even if the deceased wished to give a gift to a close friend, a charity, or a more distant relative, that wish is irrelevant without a will.
Potential for Family Disputes
If an estate goes through probate without a will, it’s much more likely that family disputes will arise than if a will is in place and everyone knows how the estate is to be divided. This is especially the case where more distant relatives have been very close with the deceased and might have assumed (or even been told) that the deceased intended to give them an inheritance.
But there can even be serious disputes among legally recognized heirs. For example, if the deceased has two children, and one child did all the work to care for the deceased prior to death, that child may believe they deserve a larger inheritance. But without a will, the law does not see it that way. The division must be even.
Time and Costs
Even when there is a will in place, California probate is notoriously slow and expensive. It’s even worse when there is no will. The process typically takes at least six months and can easily take well over a year, depending on how complex things are. With court fees, paying the referee and administrator, and the possibility of greater attorney fees as the family contests various issues, it would be typical for the total cost to be at least 7% of the estate’s value.
And that does not even count the cost for appraisals or taxes. The entire time the estate is in probate, no one can access any of it, either, which means that anyone who was dependent upon the deceased could face serious financial hardship.
When There Are No Heirs
In some rare cases, if no heirs can be found, the entire estate “escheats” to the state of California. The law does require an exhaustive search by an administrator or genealogist to find a qualifying relative, but if none can be found, then the state can claim all assets.
Real Property and Title Issues
If there is no will, and your estate includes real estate, probate can be particularly difficult. All real property must go through intestate succession, and getting the title cleared for the heirs often requires extra steps. Say, for example, that a single person dies and leaves their home to be inherited by their siblings. In order to sell or transfer it, both siblings have to agree on how to do that.
If they can’t, the court must order a partition, which may mean that the home itself is sold for a loss. During this whole process, the property has to be maintained, and all taxes, insurance, and upkeep taken care of. This could drain the estate of all other funds and, in a worst-case scenario, mean that the heirs end up with nothing or even suffer financial loss in trying to take care of the property.
Discuss Your Estate Needs With a San Diego, CA Probate Lawyer
It’s always wise to get your affairs in order, and we can help. For compassionate and experienced to California estate planning, contact Frisella Neilson, APC in San Diego now.
