When a loved one passes away, the first step in the legal process of administering
their estate is called
probate. This is a court procedure in which all claims to the estate are resolved
and the decedent's property is distributed under a valid
will. The probate court will initially decide upon the legal validity of the
testator's will before naming an
executor to the estate, either named in the will itself or by the power of the
court. Using the legal power they have been granted, they will begin to
dispose of the decedent's assets according to their explicit directions.
What Happens When You Pass Away Without a Will In Place?
When a person passes away without a legal will, it is called dying intestate.
In such cases, the court will select its own
estate administrator and it will be up to that individual to manage the estate and distribute
assets accordingly. Oftentimes, the way the administrator distributes
the assets is quite different than the way that the decedent wished.
According to California Probate Code § 13006, a successor of the decedent
is defined as "the sole beneficiary or all of the beneficiaries who
succeeded to a particular item of property of the decedent under the decedent's
will," if there is a will in place. If there is no will in place,
a successor of the decedent is defined as "the sole person or all
of the persons who succeeded to the particular item of property […]"
or "if the law of a sister state [...] governs succession to the particular
To try to simplify it: this means that if you pass away without a will in place, in most cases
your possessions will be granted to – in order of priority –
your children, your spouse, your parents, and your siblings
or based on another state's law, depending on where you owned the property.
Do Small Estates Go Into Probate?
Under certain circumstances, the decedent's personal property may actually
be distributed to the successors without the need to go into probate.
In order for an estate to be "exempt" from probate proceedings,
the decedent's estate must qualify as a small estate and meet specific
legal requirements, including:
Maximum value: The total real gross fair market value of the decedent's real and personal
property in California must not exceed this
Proper affidavits: Successors are required to present an affidavit which meets specific requirements
to the holders of the property.
Successors: The affiant must be the successor of the decedent and to the decedent's
interest in the property, or the affiant must be authorized to act on
behalf of the successor.
When the affidavit is executed, it must be executed by all of the successors
who have an interest in the property, whether it is sought to be collected,
received, or transferred. The following attachments to the affidavit are required:
- Certified copy of the decedent's death certificate
- Evidence of ownership
- Copy of consent allow the transfer of property to the successor
Using Living Trusts to Avoid Probate
If the estate is valued above $100,000, there another way to avoid the
tax implications and other costs associated with probate. To
avoid the probate of the estate, you may place your assets into a
living trust. With a trust, once the trustor passes away, probate is not required because
the property technically belongs to the trust. This can be achieved by
creating either a
revocable living trust or an
irrevocable trust. Even though each type of trust has its own advantages, you will want
to closely review your situation with a member of our legal team in order
to find out which type of estate plan suits your situation the best.
Do You Want to Avoid Probate? Call 714.908.4230 Now to Learn Your Options
The probate process can be lengthy, complex, and potentially costly. When
probate is not necessary, you might want to do what you can to avoid it.
However, to save yourself from troubles or mistakes in the future, you
should consult with an Orange County probate attorney from our firm first.
Whether you are planning your estate, a beneficiary to an estate, or a
named executor, P. Arnsen Blakely can provide you with reliable legal counsel.
Contact us today for to set up your
free case evaluation.