Depending upon the nature and extent of the assets (or the “estate”) of the person who has died (the “decedent”), a Probate of the estate may be required.
Probate is the court process which oversees the transfer of legal title of property from the estate of the decedent to his or her beneficiaries, while ensuring the payment of any taxes and addressing any claims of creditors.
A “Will” is a written document by which a person can provide direction for the management and distribution of his or her estate. A person who dies without a Will is said to have died “intestate.”
In California, the estate of a person who dies intestate is distributed according to the California Laws of Intestate Succession. The Laws of Intestate Succession provide a failsafe strategy for the distribution of the estate of a person who dies intestate.
In addition to the Laws of Intestate Succession in California, some assets of a deceased individual may pass by some other operation of law without the need for Probate, such as:
- Property held in a trust with designated beneficiaries
- Life insurance proceeds with a named beneficiary
- Retirement accounts including IRAs and 401(k)’s with a named beneficiary
- Payable-on-death accounts (“POD”)
- Transfer-on-death accounts (“TOD”)
- Property owned in joint tenancy with a right of survivorship
A decedent’s property that does not automatically transfer by some other legal means can only be transferred through the Probate process. So, even when the decedent died intestate, Probate may still be required. The Kiken Group offers experienced advice, counsel, and representation when it comes to Intestate Succession and the Probate process.
Brief Overview of the Laws of Intestate Succession
Under the Laws of Intestate Succession, the surviving spouse takes all of the community property [all income and property obtained from income earned during marriage], of the decedent.
As to separate property, the surviving spouse takes:
- all of the separate property if the decedent did not leave any issue [children or grandchildren];
- one-half of the separate property if the decedent left only one child;
- one-third of the separate property if the decedent left more than one child
If there is no surviving spouse, the decedent’s property passes as follows:
- to the decedent’s issue [children or grandchildren];
- if there are no issue, then to the decedent’s parents;
- if there are no issue or parents, then to the decedent’s siblings
If the decedent’s child dies before the decedent leaving one or more children [grandchildren], each of the decedent’s surviving children takes equally, whereas each of the grandchildren share equally in their deceased parent’s share.
These matters can also be affected by the effects of prior agreements, divorce, legal separation, and domestic partnership.
How to Navigate the Process
The Laws of Intestate Succession and Probate Codes in California are very complicated. In order to successfully navigate the process, contact the Kiken Group, attorney for decedent’s estates.