September 21, 2019

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Probate in California

San Diego Law Firms

Probate is the process of distributing the estate and paying off the debts of a person who has died. Probate occurs with or without a will, although there are certain steps you can take in life to minimize or avoid probate after your death. Probate can be a lengthy and stressful process. It takes a minimum of four months after creditors have been notified, during which heirs must wait to receive assets and property and move forward with their lives. Under certain circumstances, an estate may not need to go through probate.

Probate Estate vs. Non-Probate Estate

Certain types of property and assets are excluded from the probate estate and transfer directly to the beneficiaries. Examples include:

  • Life insurance with named beneficiaries
  • Pay on death (POD) accounts
  • Retirement benefits
  • Living trust assets
  • Property held by “joint tenants with right of survivorship”

Estate planning includes establishing as much of your estate as possible as non-probate so that you get to designate the beneficiaries and they have immediate access to the assets you choose to impart to them.

Spouse or Domestic Partner

In some cases the surviving spouse or domestic partner is entitled to the entire estate and probate is not necessary. A Spousal or Domestic Partner Petition is filed to initiate the process, and must be approved, but it is faster than the probate process.

The Importance of a Will

Probate occurs with or without a will. If you do not have a will, decisions are made for you according to California’s intestate succession laws. Your estate is distributed to your heirs as defined by law, rather than who you choose.

If you have minor children and die without a will, the courts decide who will get custody. In most cases, if there is a surviving parent, he or she will get custody, but there are exceptions. In cases where the minor child has no surviving parent, the child’s wishes may be considered, but the court will ultimately decide what it believes is in the child’s best interest which may be very different to who you would have chosen.

Intestate succession laws are complicated. A surviving spouse or domestic partner owns one-half of the community property. The other half of community property and the separate property of the decedent are the intestate estate.

The surviving spouse is entitled to the entire estate if there are no children, grandchildren, parents, siblings, or nieces and nephews. If there are any of the aforementioned heirs, the surviving spouse or domestic partner the spouse in entitled to either one-half or one-third of the intestate estate, depending on how many heirs there are and their relationship to the decedent.