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Dying without a Will or Trust, a situation legally known as dying “intestate,” can often lead to an expensive, time-consuming and stressful process for your loved ones. Without these essential estate planning documents, the distribution of your assets will be determined by California law rather than your personal wishes.

Intestate Succession

When someone dies intestate, California’s intestacy laws dictate how his/her estate is divided. Usually, a surviving spouse and children (if any) are the primary heirs under the law, with surviving parents and siblings (if any) considered as secondary heirs and extended family considered as contingent heirs.

If you don’t create your own estate plan, California law (as enforced in Probate Court) will determine who receives your assets and when those assets are distributed. You would have no control over this process, which could lead to a variety of problems including a distribution of some or all of your assets to someone who you want to exclude as an heir, for whatever reason, while those you wished to support may receive nothing.

Also, there are no protections for young heirs or disabled heirs, whose benefits may be dramatically affected if he/she inherits too many assets in the wrong way. If you have minor children and die without a will, the court will appoint a guardian for them, which might not be someone that you would have chosen for this important job.

Finally, an intestate estate going through Probate Court involves an unnecessary, costly and time-consuming court-supervised process. Intestate succession can lead to intense disagreements among family members, especially if they have different expectations or misunderstandings about your wishes. Then, your heirs may be subject to various taxes under California law, including Proposition 19 which took affect on April 1, 2021 and may subject your heirs to sharp increases in property taxes once Probate Court has been resolved.

Avoiding Intestate Succession

To avoid the complications of intestacy, consider the following steps:

1.Create a Will: A will allows you to specify how your assets should be distributed, name guardians for your minor children, and appoint an executor to manage your estate; however, remember that a simple Will involving any house will probably be resolved through Probate Court.

2. Establish a Trust: A trust can provide greater control over the distribution of your assets, avoid probate, and ensure privacy. For most people, a Revocable Trust (often known as a “Living Trust”) allows the owner to maintain ownership and control over the property during his/her lifetime and ensures that his/her property avoids Probate Court when he/she passes away. If written properly, a Living Trust also allows you and your beneficiaries to avoid most taxes under current California law.

3. Regular Updates: Keep your estate planning documents up to date, especially after major life events such as marriage, divorce, the birth of a child, or a change in assets (such as buying or selling a house and other real property).

Conclusion

Dying without a will or trust can lead to unintended consequences and added stress for your loved ones. By taking the time to create these essential documents, you can ensure that your wishes are honored and that your estate is managed and distributed according to your preferences. Consulting with an estate planning attorney can help you navigate this process and provide peace of mind for you and your family.

If you would like to discuss your situation and your options under California law, please call my office (661-273-9007) to schedule your FREE consultation at your convenience.