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Everything You Need to Know About Probate When a Will Is Absent - Werner Law Firm

Everything You Need to Know About Probate When a Will Is Absent

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: July 25, 2019

It happens all too often – someone passes away, and everything they own must now be passed down to the family. But who determines who gets what, and why? What if both of your adult children want custody over the family dog? Who gets the car? To whom goes the house? With or without a […]

It happens all too often – someone passes away, and everything they own must now be passed down to the family. But who determines who gets what, and why? What if both of your adult children want custody over the family dog? Who gets the car? To whom goes the house? With or without a will, there is only one place to settle these disputes and ultimately determine how a decedent’s property should be divided – and that is the probate court.

Probate courts tackle the task of legitimizing a will and overseeing its execution. If no will document exists, the probate courts defer to the state’s intestate laws. In both cases, however, the process is quite similar.

Filing Probate Without a Will

When a loved one dies, it’s up to a designated family member to take their death certificate and head down to the courts of the county in which the decedent lived. There, the death certificate must be presented in order to file a petition for probate. A court is called to begin the process, and the first matter of business is choosing an executor.

There are reasons why you would want to ensure that this happens as quickly as possible.

First, the probate process can take quite some time. In California, probate lasts for an average of about seven to nine months, but can become much longer given delays and complications, ranging from complex estates with assets in multiple places throughout the country, to disputes and belligerent behavior between family members due to inheritance issues.

Second, the probate process signals the beginning of a time limit for potential creditors to come and collect on an estate. That time limit, naturally, has an end. After that end, creditors may not file for a claim against the estate. However, the catch is that the designated executor for the estate must declare that the probate process has begun through a public forum, typically local print media. There are other tasks awaiting a potential executor, even without a will to execute.

Choosing an Executor

The process of choosing an executor must be approved by the courts, although the role is largely voluntary. In most estate plans, executors are chosen by the decedent prior to passing away, and they tend to be prepared for the task. If a person dies without a will or estate plan, the executor is usually their surviving spouse, an adult child, or a sibling or parent. If, however, no one in the family is up to the task, a third party may be hired. Although an attorney is not needed in most states, it is a good idea to hire one, even if you or a relative plan to take up the mantle of executor.

This is because there are many tasks to properly administer, and some of them require the services of other professionals (from moving services to valuators). Experienced probate lawyers often specialize in helping families minimize other costs by taking on much of the legwork in the probate process, with no upfront cost, at a fixed fee determined by the final value of the estate.

Once an executor is chosen and creditors are properly informed, the family must be informed via mail or in person. Then, it’s up to the executor to take stock of the entire estate left behind by the decedent, before tallying up any existing debts, taxes, and outstanding costs, and finally, distributing what is left.

California Intestate Succession

Should a person pass away without a will, their belongings are divided and distributed to their next of kin as per California’s intestate succession laws.

These declare that:

    • If a decedent leaves one child and a surviving spouse, all community property goes to the spouse, half of all separate property goes to the spouse, and the other half of all separate property goes to the child.
    • If the spouse survives and the decedent has more than one child, the spouse receives one third of separate property, while the children receive two-thirds.
    • If only the spouse survives, he or she receives everything.
    • Should a person die without leaving behind a spouse or children, their belongings pass to the next of kin (parents, siblings, grandchildren, grandparents, nieces/nephews, aunts/uncles, etc).

There are certain complications and specifics – for example, if only one child survives but a deceased child had children, then the spouse still only receives a third of the separate property, and the deceased child’s share goes to the grandchildren. Specific cases require further inspection, which is where professional legal advice becomes important.

Other Estate Planning Matters

Estate planning can be quite complex, if the corresponding estate requires it to be. Estates come in all shapes and sizes, from the family home and a car to numerous assets both tangible and intangible, including gold bullions, tracts of land, patents, securities, and livestock. But more than just finances and belongings, an estate plan can be used to determine so much more.

Filing a living will allows you to determine whether you accept certain live-saving treatments if you find yourself incapable of giving consent. A power of attorney gives another person the ability to make important decisions for you should you be incapacitated yet alive, including financial decisions and medical decisions.

Trusts allow you to set up a fund to support your special needs child or to ensure that a pet you’re leaving behind is well taken care of. They also allow you to control how your heir’s inheritance is distributed to them – if your child is typically reckless with money, then a trust allows you to control the rate at which your wealth continues to flow into their pocket.

For most families, however, going into detail with estate planning methods is not necessary. Most families do not have large estates – but all families must face the probate courts when a loved one dies, regardless of how much they owned. Preparing your family for probate can help them avoid a long list of potential headaches and annoyances.

Otherwise, if you find yourself facing a complex probate process, then do not be afraid to contact a professional. There are ways to minimize the impact probate can have on both your wallet and your time by taking the right steps to eliminate potential errors, and even expedite the process (should the circumstances call for it).

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Whether you need help creating a living trust or navigating probate, our living trust law firm's compassionate team of estate planning lawyers and probate lawyers are here to help you and ready to answer your questions.

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