Trust & Probate Litigation Attorney

Probate Without a Will

by | Dec 1, 2021

When a person passes away without a valid will, they are said to have died “intestate”. This word comes from the roots “in-” (meaning “no, not”) and “-testate” (meaning “having made a valid will” – as in “last will and testament”). When a person dies intestate, then statutory provisions govern what happens.

What Assets Are Subject to the Laws of Intestacy?

Unless an exception applies, your loved one’s assets will all generally descend through their intestate estate. Common exceptions include property that is held in joint tenancy (e.g., certain real property, some bank accounts), property that has a designated beneficiary (e.g., life insurance or retirement accounts), or property that is held in a trust. These exceptions are more common when a person has proactively prepared for their passing. If your loved one didn’t prepare a will, then it may be more likely that more of their assets will be subject to the laws of intestacy.

Who Gets What Under the Laws of Intestacy?

Under California’s statutory laws of intestacy, the State clearly defines who gets what after a person passes away intestate. It may sometimes seem unfair in light of the reality of different relationships during the decedent’s lifetime, but without a will, the State’s statutory presumptions of who gets what will generally prevail. Although there is much more to it than this simple statement, generally assets will descend to those who had closest relations with the decedent by blood or marriage.

Potential Issues

Any number of potential issues arise when a person passes away intestate. Common issues might involve the identification of property as community property or separate property, especially when a decedent re-married later in life and had biological children from another marriage. Other potential issues can include whether property belongs to the intestate estate or properly descends outside of the laws of intestacy, whether a gift from the decedent during their lifetime was an “advance” on a relative’s inheritance, the inheritance rights of children whose connection to the decedent are more complicated (e.g., foster children, stepchildren, biological children placed for adoption, children born outside of marriage, etc.), and whether the decedent was a victim of elder abuse or homicide.

Contact Our Experienced Probate Litigation Team

Our experienced team of attorneys brings a broad scope of experience to address the potential gamut of issues you may be facing in your probate matter. We strive to provide effective, practical, and timely results. We aim to resolve issues before resorting to litigation, if at all possible, in order to save our clients money and to allow all the parties to move forward with their lives on amicable terms. However, when litigation becomes necessary, we will wield the sword of justice to protect your interests and defend your loved one’s legacy.

If your loved one has passed away and you’re feeling overwhelmed, we can help. Every situation is unique, and it is best to discuss your case with an experienced attorney. Contact us today by calling (949) 450-8500 to schedule your consultation.

California Statutes Regarding Administrators (Cal. Prob. Code §§ 8460-8469)
California Statutes Regarding Intestate Inheritance (Cal. Prob. Code §§ 6400-6414)
California Statutes Regarding Parent-Child Relationship in Intestacy (Cal. Prob. Code §§ 6450-6455)
California Statutes Regarding the “Slayer Rule” (Cal. Prob. Code § 250)

DAVID J. HALLSTROM, ESQ.
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