Dying without a will and a trust in California, known as dying “intestate,” doesn’t mean your assets vanish, but it does mean the state decides how they’re distributed, potentially creating unintended consequences and a longer, more complex legal process for your loved ones. Approximately 55% of American adults do not have a will, leaving a substantial portion of the population vulnerable to the intricacies of intestate succession. Without these crucial estate planning documents, you relinquish control over where your property goes and who makes decisions regarding your affairs.
What is Intestate Succession in California?
When you die intestate in California, the state’s laws of intestate succession kick in. These laws dictate a specific order of inheritance based on your family relationships. If you have a spouse and children, your spouse generally receives half of the community property and one-third of your separate property, with the remaining two-thirds going to your children. If you have no spouse but have children, your children inherit everything. If you have no spouse or children, the inheritance passes to other relatives like parents, siblings, and so on, following a defined hierarchy. This process can be particularly challenging when blended families are involved, or when there’s a desire to leave assets to individuals not covered by the standard inheritance rules. It’s important to note that stepchildren do not automatically inherit under intestate succession; only biological or legally adopted children are considered.
Could My Family Face Probate Without Estate Planning?
Without a will or trust, your estate will almost certainly go through probate court. Probate is the legal process of validating a will (if one exists, even if improperly executed) and administering an estate. In California, probate can be a lengthy and costly process. Court fees, attorney fees, and executor fees can add up, often consuming 5-10% of the estate’s value. Furthermore, the process can take anywhere from six months to several years to complete, depending on the complexity of the estate and the court’s caseload. I remember a case involving a lovely woman named Eleanor, a retired teacher. She passed away unexpectedly without a will. Her adult children, while loving, were completely overwhelmed by the probate process. It took nearly two years and a significant chunk of their inheritance just to settle her estate, leaving them emotionally and financially drained. They wished she had spent a little time setting up a trust—it would have saved them so much heartache.
What About Assets Like Real Estate and Bank Accounts?
The distribution of specific assets can become complicated without clear instructions. Real estate, bank accounts, and other significant assets may require a formal probate process to transfer ownership. Even assets with “payable on death” or “transfer on death” designations—which bypass probate—won’t cover everything. For example, personal property, like jewelry, furniture, or artwork, often requires probate court approval to be distributed. Jointly held property with rights of survivorship passes directly to the surviving owner, but this may not align with your overall estate plan. For instance, a couple, the Millers, owned a beach house jointly. The husband passed away without a will. While the wife inherited the house automatically, it created tax implications they hadn’t anticipated, and it complicated their plans to eventually pass the property on to their grandchildren. A trust could have easily addressed these concerns.
How Can I Avoid These Issues with a Trust and Will?
Creating a comprehensive estate plan, including both a will and a trust, is the best way to ensure your wishes are carried out and your loved ones are protected. A trust, specifically a revocable living trust, allows you to transfer assets into the trust during your lifetime, and then designate beneficiaries and a trustee to manage those assets after your death. This avoids probate altogether, saving time, money, and stress. A will serves as a safety net, directing any assets not held in the trust and naming a guardian for minor children. I once worked with a gentleman named Robert, a successful entrepreneur. He came to me after witnessing his father’s estate go through a grueling probate process. He was determined to avoid the same fate for his family. We established a revocable living trust, transferred his assets into it, and drafted a will to cover any unforeseen circumstances. When he passed away, his family was able to avoid probate and seamlessly transition the estate according to his wishes. It brought immense peace of mind knowing his legacy was protected. Taking the time to plan now can safeguard your family’s future and ensure your wishes are honored.
“The best time to plant a tree was 20 years ago. The second best time is now.” – Chinese Proverb. This applies perfectly to estate planning. Don’t delay securing your family’s future.
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
(619) 550-7437
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