INTESTATE SUCCESSION – DYING WITHOUT A WILL

What happens when someone dies without a will (called, “dying intestate”)? Who gets what?

In California, when someone dies without a will, or with a will that does not dispose of all of his or her property, the laws of intestate succession determine who the decedent’s heirs are, and how much they will get of the estate.

Types of Probate Proceedings

A full probate proceeding is not always necessary, even if the Decedent did not have a trust.  This blog will briefly survey the available procedures for transferring non-trust, non-joint assets of a decedent.

 -FULL PROBATE-

A full probate is necessary if the Decedent’s gross estate is valued at more than $150,000, or s/he had real property in California worth more than $50,000.  The probate process is described in detail in our 8-06-2015 blog.

WHAT IS ESTATE PLANNING? (PART III – OTHER ESTATE PLANNING TOOLS)

As noted, wills and trusts are the most common estate planning tools, but are far from the only tools.  Depending on family dynamics, estate size and composition, a client may also want to engage the following.

FAMILY LIMITED PARTNERSHIPS AND LLC’S

For families that own significant assets such as rental property or operate small businesses can benefit from the use of entities such as family limited partnerships (FLPs) or family limited liability corporations (LLCs).  These entities provide several benefits for parents and subsequent generations.

WHAT EXACTLY IS ESTATE PLANNING? (PART II – WILLS AND TRUSTS)

WILLS

A Will is a document that sets forth how you want your property distributed upon your death.  It can be extremely specific (e.g., “I hereby give, devise and bequeath my personal residence and all personal property to my son Jerome, with the exceptions that all of my fine china shall go to my niece Jenny, and my yellow couch to my best friend Fifi.

WHAT EXACTLY IS ESTATE PLANNING? (PART I)

What exactly is estate planning, and who needs it?  Estate planning is primarily the process of determining how, when, and to whom you want your property to pass upon your death.  It also addresses how you want your estate to be handled when and if you lose the ability to manage it yourself (often referred to as “disability planning,” a subset of estate planning).

Good estate planning will, among other things: provide management and protection of family assets; control the management of your property and your personal financial needs when you are unable to manage your estate yourself; eliminate uncertainty regarding inheritance; ensure the continued financial health of your loved ones after you are gone; provide creditor protection to your heirs; simplify administration of your estate; avoid the high cost and time of probate; minimize applicable estate and/or inheritance taxes; define and accomplish your charitable wishes; minimize income taxes payable by your estate (which necessarily reduce the property passed on to your heirs), and; provide post-mortem control over your assets.

Valid Wills and Revocation

What constitutes a valid will? Can great Aunt Sally create a valid will by writing “I leave all of my earthly possessions to my cockatiel Cornelius. – Sally” in lipstick, on her vanity mirror? Does it need to be witnessed or notarized? 

A testator (the person making the will) generally must be 18 years old to make a valid will in California, unless they’re an emancipated minor.

What does Probate Administration consist of?

Probate administration entails, at its most basic:

Submitting the Decedent’s will (if there is one) to the appropriate Probate Court (“the Court)”;
Obtaining Letters of administration (with or without a will) and an order for Probate;
Providing proper and timely Notice of Petition to administer the Decedent’s estate, and filing proof of same with the Court;
Attending the hearing on Petition, or telecourt appearance for same;
Filing Duties and Liabilities of Representative or Executor;
Obtaining a taxpayer identification numbers;
Notification to proper government agencies;
Obtaining and submitting proper documentation for the purpose of attaining authority over the Decedent’s assets;
Identifying and gaining control of the Decedent’s assets;
Maintaining the Decedent’s assets (maintaining the condition and safety of real and personal property; making appropriate investments; ensuring cash accounts are held in interest-bearing accounts);
Arranging preparation of final personal income tax returns, and for estate returns;
Preparing and submitting Inventory & Appraisal of Decedent’s date of death assets to probate referee;
Paying debts not requiring formal claims;
Approving or Rejecting creditor claims;
Filing and Inventory & Appraisal with the Court;
Keeping track of all income, receipts, costs and losses, and providing a formal accounting to the Court;
Preparing and submitting a Final Order with Accounting and Proposed Distribution, which also requires giving proper notice to beneficiaries and other necessary parties, and filing Proof of same;
Determining and paying statutorily calculated fees for attorney and representative/executor;
Attending hearing or telecourt on same;
Making court-ordered distributions and obtaining Receipts;
Filing Receipts;
Filing Petition for Discharge of Representative or Executor;

In addition to these tasks, handling Objections to, e.g., the Petition for Probate, or to a Claim rejection or to the Proposed Final distribution, may be necessary.