FAQs Probate Without A Will

News Feb 24, 2020 NOELLE MINTO, ESQ.

What happens if someone dies without leaving a valid will?

• Dying intestate means someone died without a will. In this case, the deceased person’s estate falls into the probate process to allow transfer of the property’s legal title to the deceased person’s heirs.

What is probate?

• The probate process is essentially a set of rules under the state probate law that stipulates how assets or property can be disposed of when someone dies intestate. A probate law court usually presides over this legal process.  It primarily involves the appointment of an administrator, identification of heirs, and the distribution of property.

When does the probate process start?

• The probate process officially commences when a personal representative/administrator is appointed to receive any and all legal claims regarding the estate and to handle payment of creditors as well as management of any other expenses that the estate owes to third parties. Distribution of the estate can only be done after necessary expenses are offset and heirs are appropriately identified. The probate court of law is responsible for identifying assets/ property that should be distributed as well as how they will be distributed.

What are the expenses involved with the probate process?

• There are certain expenses that an administrator has to settle before distribution of the estate. They include legal fees, judgment(s) against the estate, administrative fees, unpaid bills, and outstanding loans, and others.

How are the heirs of an intestate person identified?

• The next step involves identification of heirs. The applicable probate laws are applied in the identification of heirs. Generally, parties who are automatically considered as heirs are surviving spouses, parents and children. If a court of law fails to identify heirs, the state acquires the deceased person’s property by default.

Are some distributions made automatically, even if a person dies intestate?

• The distribution of certain types of property is automatic, even if someone dies without leaving a will. For instance, if the deceased owned a bank account, vehicle or land jointly with another party who is left behind, the party who remains alive automatically inherits the property.

How much estate does each estate inherit from an intestate person?

• Rules that determine how much every heir is entitled to inherit from the estate of a person who dies intestate vary from one state to another. However, in most legal jurisdictions, the probate without a will process usually involves distribution of property among the deceased person’s children and surviving spouse(s).

What are some examples of how the intestate process actually works?

• If the deceased was officially married but had no children, the surviving spouse is entitled to inherit all matrimonial property that was jointly owned by both. If the marriage brought forth children and property wasn’t jointly owned, the surviving spouse is entitled to inherit a fraction of the property, whereas the remaining fractions are distributed to the deceased person’s children as well as parents. If the deceased was unmarried at the time of his/ her death, the estate is distributed in accordance with priorities outlined in the state’s probate code.

The attorneys at NM Law combine their knowledge of California laws with their skills in estate planning and asset preservation to advise clients concerned about avoiding probate.  Call them today at (949) 253-0000 to schedule an appointment.

Disclaimer: This article is intended to provide a general summary of laws in the State of California and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.