Frequently Asked Questions

What If there is no will?

If there is no will, the estate will have to go through the probate process as it would with a will. However, two significant differences apply to the probate administration process when there is no will.

First, the probate court will appoint an administrator as the first step. The court may appoint a family member, but the court can appoint any person other than a family member. The person selected for distributing the estate’s assets may not have been the decedent’s choice.

Second, the distribution of the assets will be determined by what is called the intestate law because the decedent has named no heirs. This means that the assets may be distributed to persons that would not have been chosen to receive them. The heirs are determined by Law of Succession. The court will require proof of the identification of the heirs that would be covered by the law before any distributions making any distribution of assets. The list of heirs covered under the law is extensive, which means that the court will reach to extended family members.

Who would inherit the assets under the intestate laws?

If the decedent was married or had a registered domestic partner, the court will need to understand what assets are community assets, or marital assets, and which assets are held solely by the decedent. If assets are held jointly or with rights of survivorship, then the transfer to the surviving spouse or the registered domestic partner is automatic.

The Law of Succession, which controls asset distribution when there is no will, stipulates that community, or certain marital assets, will go directly to the registered domestic partner or spouse if the decedent did not have children or close relatives. The law prevents the separate assets from being given in total to the registered partner or spouse. If there is not a registered domestic partner or spouse, the law specifies an order of distribution of all separate assets among any children and certain close relatives.

A surviving spouse with children will inherit all of the community assets and 1/2 or 1/3 of the decedent’s separate assets, and the children will inherit 1/2 or 1/3 of the separate assets. The spouse will inherit all of the community property and 1/2 of the separate assets with the remaining 1/2 passing to the decedent’s parents if there are no children.

What are the assets that must be probated?

Here is a list of assets that must be probated:
– Assets held only in the decedent’s name.
– Assets that are not registered with the decedent’s domestic partner or not held with a spouse as community property.
– That portion of any asset owned by the decedent that was also owned or held as tenant in common with other persons.

Here is a list of assets that are excluded from the probate process:
– Assets held in joint tenancy
– Assets held in a living trust
– Assets with a named beneficiary such as life insurance and IRAs
– Assets registered by a married couple as community property with rights of survivorship.

What can I expect during the probate process?

The executor must file a document called the “Petition for Probate” with the court having jurisdiction where the decedent lived. The petition includes details about the decedent, about the executor, and information about the heirs. The size of the estate must also be included along with a statement about whether a surety bond is required or waived by the will. The heirs must be given a formal notice that the probate process has been started. If there is a will, then it must be proven to be valid, and this requirement is usually satisfied by having the witnesses to the will signing providing a sworn statement which is submitted to the court.

The court will then issue “Letters of Testamentary” or “Letters of Administration” which appoints an executor or an administrator and grants this person authority over the assets of the estate. This authority stipulates that the person appointed also has responsibility to keep the assets safe, keep real estate property insured and maintained, and heirlooms safeguarded. The executor will begin an accounting of the assets and compile a complete inventory and appraisal of each asset for filing with the court. The total value of the assets will need to be determined and filed with the court along with the inventory. The executor must pay outstanding debts and ensure that all tax returns are filed.

Some assets may be liquidated by the executor to pay debts and taxes. The state law allows the executor to handle most matters without first obtaining permission from the court. Some actions such as selling real estate require prior court approval. If the heirs include siblings of the decedent, then their approval must be obtained before the real estate can be sold. When all debts and taxes have been paid and the assets have been converted into cash or some other form of transferable assets, then the executor will ask the court to close the estate. A final accounting must be made to the court before the assets are transferred.

What are estate taxes?

In order to understand estate taxes, it is important to know that California does not have an estate tax. Estates in California are subject only to the federal estate tax, but only 2 out every 1,000 estates owe any federal estate tax. Two reasons account for this low number of estates. First, there is a high exemption amount. Secondly, many people have taken advantage of the legal loopholes, and their estates are taxed on average about 16% of the net estate value and not the highest tax of 40%. This article will provide an overview of these points, and our office would be pleased to discuss this matter with you.

Estate Tax Calculation
The estate tax calculation begins with the amount of the gross estate. The gross estate includes the fair market value of all property owned by the decedent and property they had an interest in. Proceeds from life insurance owned and controlled by the decedent are included as are annuity proceeds. Some exceptions do exist. For example, if securities owned by the decedent were purchased with taxable income, then only the increase in the value of securities is taxable. This also applies to the appreciation of the value of art work and real estate.

The Net Estate Value
The net estate value is calculated by subtracting several deductions from the gross estate value and after the allowed exemptions have been taken. The deductions include end-of-life expenses, funeral expenses, outstanding debts, the fair market value of property to be donated after death. The value of property that transfers to the spouse by the automatic rights of survivorship is also deducted.

Exclusions From Calculating The Net Estate Value
After the net value of the estate has been calculated, the value of lifetime charitable gifts made to people and organizations, except to qualified tax-exempt organizations, that exceeded the annual exclusion for every year since 1977 must be added to the value of the estate to arrive at the net taxable value. These are the annual gift exclusions for tax purposes. However, there are other charitable gift exclusions that our office would be pleased to discuss with you.

The personal exemption level of $5.43 million is excluded from the remaining net fair market net value of the estate. This exclusion applies to anyone who inherits the assets of the estate. However, it usually applies to one person, but it will apply to each spouse who jointly inherit an estate.

The exemption per person in 2020 is $11,580,000 which will revert to $5,000,000 per person in 2026 if no additional legislative action occurs.

A surviving spouse is entitled to the marital deduction which means that property inherited passes free of any estate tax. This deduction is not available to noncitizen spouses, but noncitizen spouse can use the personal exemption. The surviving spouse is also entitled to the personal exemption.

Special estate tax rules may apply to family business and businesses jointly owned with persons other than a spouse. Farms are may also be subject to special rules.

Will I pay federal tax when I die or when I inherit?

The federal estate tax applies to the transfer of assets from the decedent’s estate to the heirs. However, the federal estate tax allows a personal exemption of $11.58 million in 2020, but the amount of the personal exemption will be reduced by the amount of gifts made during the heir’s lifetime. The federal gift tax limits the value of assets that can be transferred to each person without a tax, other than to a spouse, to $15,000 or $30,000 jointly. Each gift amount will be deducted from the personal exemption. Gifts to tax-exempt charitable organizations are excluded from the taxable estate.

All assets owned by the decedent may be taxable including property held in joint tenancy, in living trusts, IRAs, and life insurance if the insurance was owned and controlled by the decedent. The assets are to be valued at current market value, and not the purchase price. However, the marital deduction exempts all assets passed to a surviving spouse from being taxed. The marital deduction does not apply to noncitizen spouses, but the personal exemption does apply to assets left to noncitizen spouses.

The marital deduction is the total of all assets left to the surviving spouse. The taxable estate is determined by subtracting the amount of the marital deduction along with any gifts made prior to death. The marital deduction can be affected by many factors, and our office can provide a detailed explanation of each factor.

An estate can be worth more than is anticipated if real estate has a greater market value than it is thought to have. Art and antiques may also have a greater value than expected. These are considerations for the executor to keep in mind.

There are more aspects of the federal estate tax law than can be covered in this article. We will be pleased to discuss your specific situation and, if estate taxes are a concern, then our law office can show you how to minimize and even how to legally avoid federal estate taxes.

When a house is inherited by multiple people, is selling it the best option?

It may be necessary to sell the house to pay the debts of the estate. In this instance, the court will force the sale of the house. There may be practical reasons for selling a house inherited by multiple people, and one such reason is the difficulty of each heir in realizing a benefit from their inheritance.

Selling the house in this circumstance would require the agreement of all of the people who inherited the house. Each heir must recognize the problems that arise with multiple ownership of a house. Of course, the heirs can agree on hiring a property management company to rent the house and handle the payment of taxes and insurance as well as maintenance. However, this option may not result in an income sufficient enough to justify keeping the house. The rental income may be taxable for each heir whereas the proceeds from the sale of the house would likely not be subject to any tax.

If the house is sold after the estate is closed, and certainly after it has been an income producing property, then the proceeds will be taxed if the house sells for more than it was valued when the estate was closed.

A problem can arise if one of the heirs dies. The transfer of their interest in the house could become complicated, and the surviving heirs may find themselves in a difficult situation.

If an heir wants to live in the home, then the issue becomes one of a charitable recognition of their need for the home, or whether the other heirs need the money that would be realized from the sale.

The best way to prevent problems between the heirs and to prevent the ongoing problems with multiple ownership of rental property is to sell the house and distribute the proceeds.

Siblings can’t decide what to do with the house and we are all fighting…now what?

This is a difficult situation since the approval of each sibling is required to submit even a value of the house to the court. Assuming this hurdle is cleared, then the house will be transferred to the siblings.

Fighting over the disposition of the house is not going to serve any of the siblings long-term. A discussion needs to begin with ideas each sibling has for the home, and then the discussion should focus on the pros and cons of each idea. If each sibling is reasonable, this could result in a solution that is satisfactory to each sibling. Often, people hold onto an idea without fully assessing its implications. If one sibling seems to be the major distraction, then this person’s issue needs to be discussed. They may have a problem with the other siblings that has not surfaced.
If reaching an agreement is not possible, then one of the siblings needs to be proactive and consult with an attorney about strategies that could resolve this problem. This is not to suggest that litigation is an appropriate step, because litigation is expensive and it would likely not result in a decision at all. However, a skilled attorney can manage a discussion about the implications of the deadlock. An attorney may have other ideas for resolving this problem that would not involve a hostile confrontation. This would include pointing out the legal implications of property with multiple owners.

It is more likely than not that this problem will be resolved over time because the heirs will have a chance to contemplate the issues that are impeding the disposition of the property. The discussion will never benefit from anger or hostile actions on the part of anyone.

I am the executor of a will…what now?

First, retrieve a copy of the will. Then, file it with the court along with the “Petition to Probate.” The court will provide you with written instructions on the probate process and your obligations as executor of the estate.

Keeping the heirs informed about actions you take and actions of the court is an excellent idea. This step will likely prevent the unrest of more than one heir.
You will need to establish a checking account and take control of liquid assets that are not jointly owned or that are not controlled by rights of survivorship. You will have cash to pay the decedent’s debts and pay other expenses including a surety bond if one is required.

Keeping accurate records of all financial transactions is essential for filing a complete report with the court. You will need to disclose all receipts and payments along with asset evaluations. You will be responsible for asking the court to close the estate when all the assets have been distributed, and all debts and taxes are paid.

This is an overview of your responsibilities, and it is not all inclusive. You may find hiring an attorney to be helpful. The probate process can be complicated when the estate involves a variety of assets.

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.

What is a community property state?

California is a community property state, meaning California state law governs how property acquired by a couple during a marriage is divided between them when the decide to end their relationship. State law classifies property as marital property.  Marital property is owned equally by both parties.  At the end of the relationship, marital property typically is divided equally, unless one of the parties can prove it to be separate property that is not subject to division.

Can my ex-spouse take property that I inherited during our marriage?

At the moment a spouse inherits property during a marriage, that property belongs only to the inheriting spouse and is considered “separate property” not subject to division. However, depending on how you handle the inherited property over time, part or even all of the inherited property may end up in an ex-spouse’s hands.

How should I handle property that I inherited during the marriage to protect it from being divided at divorce?

California permits you to claim as separate property not subject to division the house your aunt left to you in her Will even if the inheritance came to you during your marriage.

How should I handle income generated by inherited property?

If you claim the inherited property as separate property, then all income generated by the property is also separate property. That is, if you choose to rent out your late Aunt’s home, the rental income is separate property that belongs to you and cannot be divided.  Similarly, if you purchase something using the money generated by the rental income from the inherited property that you claimed as separate property, then the item(s) that you purchased are also separate property that belongs to you and cannot be divided.

How do I claim inherited property as separate property?

Preventing inherited property from becoming community property can be a challenge without the assistance of an attorney to guide you. The road to claiming property as separate property is riddled with potholes that can get you caught up in a concept called commingling.

What is commingling?

Commingling is the mixing of community property and separate property that could cause your inheritance to be divided during a divorce. For example, if you sell your late aunt’s home you inherited and deposit the money into a bank account held jointly by you and your spouse, then you have commingled separate property with community property.  If you use some or all of the money received through an inheritance to make repairs or improvements to a home that you own jointly with your spouse, then you have commingled separate property with community property.

How can I protect my inheritance from becoming community property that my ex-spouse can take?

  • Do not commingle your inheritance or profits derived from it with assets you own together with your spouse.
  • Do not add your spouse to title or take loans out in both of your names secured by that property.
  • Keep and protect all records pertaining to inherited assets in order to have them available should your spouse challenge their status as separate property.
  • If you are already inherited then you may want to consider placing your separate property inheritance into a separate property trust.

How can the greater family assist in protecting my inheritance from an ex-spouse?

Advise your family to give you your inheritance through an irrevocable trust with a third-party trustee.  This keeps it out of your ownership all together while still providing you a beneficial interest.  It would likewise not be subject to spousal support orders or other negative effects of divorce.

How do I reduce the value of my taxable estate?

Gift assets during your lifetime instead of waiting to give it as part of your estate after your death.

Why should I reduce the value of my taxable estate?

It immediately reduces the value of your taxable estate by the amount of the gift while also ensuring that future appreciated value of the asset does not become part of your estate.

When should I reduce the value of my taxable estate?

Taking full advantage of the current amount of the estate and gift tax exemption allows for estate tax savings that may not be available five years from now, particularly in light of our record-high budget deficit which will eventually need to be paid down through tax revenues. Loss of the enhanced estate tax exemption at the end of 2025 could cause your estate to pay more taxes than had you gifted away part of it.

How can I overcome my concerns of how the recipient will handle the gift?

It is perfectly understandable to have reservations about the ability of the recipient of a gift not to squander or mismanage it. An irrevocable trust may offer a sound alternative to an outright gift. And, certain irrevocable trusts can provide income to you, your spouse, your children and/or your grandchildren whilst still removing the assets from your “estate”.

How can an irrevocable trust help reduce the taxable value of my estate?

When a gift is made via an irrevocable trust for the benefit of charities or to your loved ones, you have peace of mind knowing the assets are managed by a trustee for their immediate and long term benefits. An estate planning attorney can offer advice and guidance about creating an irrevocable trust to take full advantage of the current estate and gift tax exemption and can even set up certain trusts to provide income to one class of people and distributions of principal to another class.

Can I delay addressing the tax concerns of my estate?

If you delay, then you run the risk of encountering even bigger problems down the road. The more and the earlier you prepare, the more you’ll thank yourself for taking the time to seek counsel on complex tax aspects of planning your estate.


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