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Estate planning is crucial for anyone who wants to remain in control of how their property is distributed when they pass away. Without having a valid will in place at the very least, there is no guarantee that your assets will pass to the person you had intended. If you have not drafted a last will and testament, California’s intestate succession laws will apply to determine who will inherit your property.
The first step that must be taken after a person dies without a will is initiating probate proceedings. This can be done by submitting the death certificate to the probate court in the county where the decedent lived. Once probate proceedings are commenced, the court will appoint a representative for the decedent’s estate who will supervise the administration of the estate and be tasked with a number of responsibilities.
The personal representative of the estate assumes the following duties and obligations:
The responsibilities of a court-appointed representative are the same as those of an executor appointed in a will. However, when there are no estate planning documents, the representative will be required to follow the laws of intestate succession, rather than the terms of a will.
Importantly, even if there was no will, not all assets go through probate. For example, for property held in joint tenancy, probate would not be necessary. Instead, the assets would revert to the other joint tenant. Similarly, assets in a bank account designated as “payable on death,” would go directly to the named beneficiary and not require probate to be distributed.
Other instances where probate would not be needed can include distributing assets in a living trust, and retirement accounts or life insurance policies with a beneficiary. In addition, assets titled as community property with a right of survivorship do not need to go through the probate process — they would go directly to the surviving spouse.
When a person dies without a will, they are considered to have died “intestate.” If a person is married at the time of their passing intestate, all community property would go to their surviving spouse. Community property is that which is acquired during the course of a marriage and is presumed to be owned equally by each spouse. It usually represents a large portion of a married person’s estate.
In the event the decedent had no children, grandchildren, parents, siblings, nieces, or nephews, the surviving spouse will take all the separate property that belonged to the decedent. Where there is one surviving lineal descendent, in addition to a surviving spouse, the separate property will be divided 50-50 between the spouse and the descendent. In cases where the person who passed away is survived by a spouse and more than one lineal descendant, the surviving spouse would receive one-third of the separate property and the lineal descendants would split the rest.
If the decedent was not married, the court would distribute the property in the estate to their children. Should one of their children have predeceased the decedent, the property would pass to the child’s children. The intestate succession rules can become more complex if the decedent had no spouse, children, or direct descendants. A decedent’s property will escheat to the state if no relatives can be found — regardless of how remotely related.
In cases where the decedent possessed property in another state, the court in that jurisdiction would distribute it according to its own intestate succession laws.
Although California’s intestate succession laws can help to prevent your assets from going to a person who is not family, the results may not be what you would have wanted. For example, you may have wished to provide more for your children, but because of intestate laws, your surviving spouse would inherit nearly all of your assets. Or, you might have wanted some of your assets to go to a charity. By creating an estate plan, you can have control over how your property is distributed upon your passing.
While the foundation of every estate plan is a last will and testament, there are many other instruments that can be used to carry out your wishes. Different types of trusts can be created, depending on your objectives. A trust can serve a variety of purposes, including avoiding probate and minimizing estate taxes. It can also allow you to specify the parameters for how and when your assets will be distributed to beneficiaries.
Critically, an estate plan can also include incapacity planning. This concerns how you will be cared for if you become physically or mentally incapacitated and can no longer care for yourself. By having a plan in place for incapacity, you can choose who will manage your assets, make decisions on your behalf, and what type of medical treatment you wish to receive.
Having a comprehensive estate plan in place is essential to avoid intestate succession — and ensure your wishes will be carried out when you pass away. Offering compassionate counsel and reliable representation, The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area with their estate planning matters for over 20 years. To schedule a no obligation consultation, call (559) 222-4891.