When an individual dies in California without a will, they are said to die “intestate”, which is a legal term meaning they died without a will. If your parents die intestate, their assets will be subject to probate and will be distributed according to state law, regardless of what your parents wished.
Probate is the legal process during which the court distributes assets according to either: the terms of the will or state law. California has two types of probate proceedings:
- Full probate for estates valued more than $166,250;
- Simplified probate for valued at $166,250 or less, or for certain other conditions such as the value of real property or how ownership of real and other property is registered on the deed or other ownership documents.
How does probate work if there is no will?
Here is a simplified overview of how probate works. Feel free to direct questions to the San Luis Obispo probate attorneys at Toews Law Group, Inc.
Who serves as personal representative?
Upon a death, a family member, will file a petition with the Superior Court in the county the decedent resided. The person with the highest level of “priority” will likely be appointed as the personal representative of the decedent’s estate. The level of priority is determined by the California Probate Code. Specifically, the order of priority to serve as administrator is set forth in the following order of priority: spouse, children, grandchildren, other issue, parents, brothers and sisters, nieces and nephews, grandparents.
Who will receive my parents’ assets if there is no will?
The California Probate code has clear guidelines which provide how property is distributed in the absence of specific guidance in a will.
- Married with no children: All assets to surviving spouse
- Not married with children: All assets to decedent’s children
- If there are multiple children all assets are equally shared among living children
- If a child predeceased the parent, then that children’s children will receive his or her share.
- Married with Children
- Community property 100% to surviving spouse
- Separate property
- If 1 child 1/2 to surviving spouse and ½ to child
- If multiple children 1/3 to surviving spouse and 2/3 equally split with children
- If no spouse or children All assets to decedent’s heirs-at-law: first to parents, then siblings, then cousins, etc.
- If no spouse, children, or heirs All assets to the State of California
How long does Probate take to complete?
It can take several months to a few years to finalize the probate and distribute all assets. The court sets specific timelines for certain tasks to be completed and will also make the final determination to distribute assets.
This is a simple explanation of the probate process. The more assets in an estate the more complex the process becomes. Unhappy relatives, even non-relatives who can establish a strong case in their favor, can also complicate and lengthen the process.
What happens if I don’t file for probate?
Not filing for probate can lead to serious legal consequences and add complicate the eventual transfer of assets from parents to their legal beneficiaries.
Can an attorney represent me and my family?
Yes. The San Luis Obispo probate attorneys at Toews Law Group, Inc. can, and routinely do, advise and represent clients in the administration of intestate probates. This includes advising of potential problems, preparing and filing probate pleadings, advising the personal representative of issued with the sale and/or acquisition of assets and preparing the accounting and petition for final distribution.
- An attorney can also help make sure the probate petition is filed correctly and on time.
- An attorney makes sure that everything that needs attention is addressed.
- When there is no will, an attorney can help protect you and your family’s interest with the court and with challenges to the estate.
- If you are entitled to assets of an estate and your rights are not being recognized, an attorney can help make sure you receive your share of the estate.
- Probate proceedings are not always necessary and an attorney can help figure out whether assets can be transferred without probate.
Toews Law Group, Inc. routinely counsels executors, administrators and personal representatives on whether assets can be transferred without probate or whether a court probate is required. Where probate is needed, the attorneys prepare all documents that need to be filed with the court, such as petitions, accountings, statutory notices and so forth and render ongoing advice to the personal representative regarding his or her duties as administrator of the estate.
The experienced attorneys at Toews Law Group, Inc. can prepare all the necessary documents that need to be filed and also provide advice to all parties involved throughout the duration of the probate process.
The goal of the San Luis probate attorneys at Toews Law Group is to make sure that the probate moves along as smoothly as possible so that the heirs receive their assets in a timely manner.
This information has been prepared by Toews Law Group, Inc. for informational purposes only and is not legal advice. The transmission of this information is not intended to create an attorney-client relationship. Contacting us does not create an attorney-client relationship. Consult an attorney for advice regarding your individual situation.