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Understanding California Probate Law

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: March 21, 2022

The death of a loved one is a very difficult thing. We make time to see to it that they pass on with their dignity intact and that they receive the funerary rites they deserve. But first and foremost, it is a time to remember and to grieve. Yet when that time comes, a lot […]

The death of a loved one is a very difficult thing. We make time to see to it that they pass on with their dignity intact and that they receive the funerary rites they deserve. But first and foremost, it is a time to remember and to grieve.

Yet when that time comes, a lot of different things are set in motion. Among them is the distribution of a loved one’s earthly possessions and financial responsibilities. The dead cannot own, and as such, it is up to the living to disburse their loved one’s estate and settle their final affairs, from the last bill to the last tax return.

Probate law is the portion of the law dedicated to supervising and facilitating the process of transferring and bequeathing a decedent’s property and assets. While the Uniform Probate Code has set the standard throughout multiple states, every state has its own unique probate laws and unique probate considerations. California is also a community property state, which can affect how jointly owned property is distributed after death.

Understanding and acting on California’s probate laws is not an easy task. However, while you are always encouraged to seek legal counsel, it does help to learn about the basics of inheritance and probate law, and the words and legal terminology used therein.

The Basics of Bequeathment

It all begins with the decedent. The decedent is the deceased, the loved one whose estate is being discussed and distributed. Their estate is everything left to their name upon death, from lands to cars, stocks, dividends, bank accounts, and other assets.

When a person dies, their death certificate becomes the catalytic document to begin the probate process. Someone, either a legal representative or a close relative, must bring this document to the local county clerk and begin the probate process.

Under this context, it is important to understand that probate comes from the need to prove inheritance in the court of law and provide a legal setting through which a judge can ensure that a deceased person’s property is rightfully distributed among the respective heirs or beneficiaries.

While probate can be shortened to the point of being little more than a formality, it cannot truly be completely skipped. And the larger the estate, the more complex the probate process.

The Last Will and Testament

At the heart of many, an estate plan lies the last will and testament. This is always the last valid and existing will, superseding any wills created before it. A last will and testament can detail the decedent’s wishes with regards to the contents of their estate and their respective beneficiaries, as well as the guardianship of their minor dependents. Wills can also include wishes such as funerary rites, and who should take care of the dog. These are less formal.

Wills can be superseded. Beneficiary designations, for example, can allow certain property and assets to pass onto a beneficiary upon a person’s death. In these cases, a deed or provision within a bank account immediately names the beneficiary as owner of the property or assets once the original owner has died. These assets cannot be distributed through a will.

Similarly, anything funded into a trust designed to distribute its contents upon the trust grantor’s passing cannot be divvied up via a last will and testament.

A will may also name a person to act as the executor of the decedent’s estate. While the court decides who carries this title, a decedent’s wishes on the matter are usually respected, as long as nothing rules them out (such as the premature death of the wished executor).

The Role of the Executor

Regardless of whether a will does or doesn’t exist, an executor must be chosen to continue the probate process.

It becomes this executor’s duty to catalogue and manage the entirety of the estate, notify the estate’s creditors and beneficiaries, organize its valuation, settle the decedent’s final debts and obligations, and oversee the distribution and settlement of the estate.

An executor is relieved of their duty when the estate is no more.

California Intestate Succession

In the absence of a will, an estate is distributed as per California’s intestate succession laws. These determine the order in which a family inherits a relative’s property and assets. Intestacy refers to being without (in-) testament.

As a community property state, virtually all property acquired during a marriage is co-owned between spouses. Upon death, the surviving spouse becomes full owner of all community property and will often inherit up to half of all remaining property, or a third, depending on how many children are left behind.

After ruling out the immediate next of kin, the estate is divided equally between parents, siblings, or nieces and nephews, in that order. If you have a spouse but no children, your separate property will usually be divided between your spouse and your parents, siblings, or nieces/nephews, in that order.

The specifics will depend on a case-by-case basis. Under most circumstances, intestacy succession can quickly determine who the rightful heirs are. But in the rare case where a decedent has absolutely no family, their estate may be eschewed by the state until an heir is found.

Things may get complicated when one spouse dies in the middle of a divorce proceeding, or while legally separated. In California, legal separation can already remove a spouse of their right to your property. This isn’t the case in every state. California’s intestacy rules regarding marriage also count for registered domestic partners. Again, this may differ from state to state.

What Does and Doesn’t Go Through Probate

The probate process is meant to oversee the evaluation and distribution of a deceased person’s earthly possessions. But not everything you own goes through probate. There are assets and property that are distributed immediately upon death, without the need for a probate court’s supervision. Common examples of assets and property that get distributed without probate include:

  • Property and assets funded into a living trust
  • The remainder of a pension fund or retirement account
  • Life insurance pay outs
  • Accounts, securities, and other financial instruments with a transfer-on-death provision
  • Vehicles and properties with a transfer-on-death provision
  • Property co-owned with a right of survivorship

Probate Law Conclusion

Probate law can be complicated and overwhelmingly difficult to navigate, especially after the loss of a loved one. Sadly, mistakes during probate can be very costly. It’s important to consult an experienced legal professional when discussing your next steps, to ensure that no mistakes are made. Get in touch with us to learn more about the probate process in California.


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