- In California, if you die without an estate plan or a will, you are considered “intestate.” This means that your estate goes through Probate, and your assets are distributed according to statute—usually first to your spouse, and then to your children, and then on to surviving relatives after that.
- Probate is very expensive, and should be avoided if possible.
- Sometimes a person’s first will is contested by a second will that they allegedly made closer to the time of their death. In these cases, rightful beneficiaries may have to pay out significant settlements, and/or may have to deal with the will being forced into Probate. It is important to maintain contact with estate holders to make sure such issues do not arise.
- Do not wait to make an estate plan. Everyone needs an estate plan, and the best time to get one is now.
In California, as is the case in most states, if you have a will, your estate will go into Probate Court. I have talked a little bit about this already in previous articles.
When a person dies, the original will is filed in Probate Court. The estate is “probated” based upon the terms of the will. That is, the Court disburses the assets that are addressed in that will.
Sometimes, a person will die with more than one will. In that case, we have what we call a “will contest.” Let’s use an example to illustrate this scenario. Let’s say a person wrote a will early on. Then, later in their life, one of their family members was living with them, and the two of them created a new will.
Wills in California do not have to be notarized. They only have to be witnessed by two people. Therefore, when there are two wills, those wills are put into context and interrogated. For example, questions are often raised about whether the person was competent when the second will was written, and/or when they changed their original plan. During a will contest, the contesting party might ask why the relative who lived with the decedent suddenly gets, for example, 90% of the decedent’s assets, when he was only her second cousin. These are the sorts of issues that tend to raise red flags.
Probate Court can get very expensive. We can once again use an example to illustrate this point. I recently had a case where a man passed away with a complete estate plan set up. He had a son who was in his 20s. Unfortunately, the son and the father had not seen each other for a couple of years before the father’s death, because of some disagreements.
The man’s estate plan was put together around 7-10 years prior to his death by a highly qualified lawyer in California, and stood unchallenged. Suddenly, when the man died, “a friend of the deceased” came out of the woodwork hanging on to a new will—not a whole new estate plan, mind you, but a new will that was obviously written by people without legal expertise. You could tell from the language alone.
Unfortunately, because that “friend” contested the man’s original estate plan, the original trust and will had to go through Probate. The beneficiary ended up having to settle with the “friend” because the son, who had not been involved in his father’s life for a very long time, was not previously aware of that will.
It may sound counter-intuitive, but it was best for all parties involved to have reached that settlement. However, as a result of both the Probate process and the settlement, the son ended up paying almost $100,000 in order to get rid of that “friend”, money, which, should have rightfully gone to the son.
This is one of the reasons why it’s important to maintain relationships with people who have created trusts and to understand that there are certainly a number of predators out there, often claiming to be close friends and caregivers. There are regular cases of caregivers convincing people that they need to become the beneficiary of their estate. This is often easy to do, since that person is taking care of the estate holder, and the estate holder is either beholden to them, grateful to them, or scared of what they might do otherwise. Meanwhile, the person’s family and friends—including their kids—may not be around to prevent this from happening. Even if you can fight the second will, it almost always results in a will contest, which almost always results in an expensive settlement and/or sending the will into the expensive process of Probate.
In the vast majority of cases, a well-written estate plan will cover all of those issues and make it so that your beneficiaries will not have to darken the door of any courthouse.
People often put off or avoid estate planning—especially men—because they think they’re going to live forever. It’s usually the female spouse who puts pressure on the male spouse to create an estate plan. Typically, this happens around two major life events: either when the couple is having a baby together, or when either one or both of them is experiencing some sort of health issue, and they figure they’d better get their affairs in order.
Unfortunately, some people never get around to making an estate plan, which can have very serious negative consequences. I’ve seen several situations where people who failed to create an estate plan ended up in Probate Court with an intestate case.
In California, when you die without a will, you are what is called intestate. There are certain laws in the State of California which discern the order in which assets are distributed if someone dies intestate, or without any valid estate planning documents. There is an entire order of inheritance that starts with your spouse and then your children, and—in the absence of spouse or children—goes on from there.
So, if you do not have a will and you die intestate, then the statutes of the Probate Court determine who is going to get what portion of your estate.
What Is The Best Time To Start Estate Planning In California?
Right now! Don’t avoid planning your estate. The sooner you do so, the more protected your estate will be.
This statement doesn’t just hold true for older people. Unfortunately, younger people sometimes also die—often suddenly, and often with no estate planning documents. I have seen many cases like this that resulted in many complications, and more often than not required the estate to go through Probate Court.
It is especially important to make an estate plan as soon as possible if you have young children. At the very least, you will want to create a conservatorship for those children, in the event that you suddenly pass away. I include conservatorship choices—i.e., the parents’ decision as to who they would like to be the conservators of their children in their absence—in your estate plan. I can also put in special needs trust provisions.
Whether you’re a single person and don’t have any heirs, but you would like something to go to a particular family member, or you’re a couple with young children, or a couple with kids who are already grown and starting their lives, the best time to start an estate plan is now. Everyone needs an estate plan, no matter what stage of life they are in.
For more information on Dying Without A Will Or Estate Plan In CA, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (949) 287-8884 today.
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