Thinking about what happens after we’re gone is not easy, but it’s an important part of making sure our loved ones are cared for, and our wishes are honored. What happens if you don’t make a plan?

In California, if you die without a will or a trust in place, you’re considered to have died “intestate.” That means that a California probate court will oversee the administration of your estate and ensure that it is distributed in accordance with the laws of interstate succession, which in many cases, does not comport with a person’s actual testamentary intentions. Further, the court-supervised probate process is generally far more expensive than the administration of a decedent’s estate by way of a Trust, which avoids the probate process. Below are fundamental considerations for estate planning. These are important to keep in mind as probate is more complex than meets the eye.  

The Legal Process Known as Probate

The legal process known as probate is the court-supervised administration of a decedent’s estate. It is the default method of estate administration when a person dies without putting their assets in a trust. 

I Have a Will. Will My Estate Avoid Probate When I Die?

A common misconception is that having a will alone avoids probate. In reality, if your assets are not property titled (i.e. in the name of a trust) the local probate court will take jurisdiction over the administration of your estate and approve the distribution of your assets according to the terms of your will. The main benefit of a will is it ensures your estate is distributed according to your wishes instead of according to the laws of intestate succession. Additionally, even with an uncontested will, probate involves court and administrative costs, such as filing fees, in addition to the statutory fees for the administrator/executor and his or her attorney. These costs are generally paid from the assets of the estate. 

In contrast, holding assets in a trust helps avoid probate and ensures your estate is privately administered. Generally speaking, this means there is no court involvement. This can be a huge time and cost savings to any family. (See more about trusts below.)

What If I Die Without a Will?

When someone dies intestate (meaning without a will), the California Probate Code provides a strict order of priority as to who inherits your assets. These are known as the rules of “intestate succession,” and while specific, the general order is family members first and if no immediate family exists, more distant relatives may inherit your estate instead. The California Probate Code distinguishes between different types of property, such as assets acquired during marriage (i.e. community property) versus those owned individually (i.e. separate property). These laws of intestate succession and community property affect the percentage each person may inherit from a deceased person’s estate. If no relatives can be found, the estate may ultimately be distributed entirely to the State of California, through a process called “escheating.” 

How Can I Plan Ahead to Avoid Probate?

To avoid probate, it is important to have your assets— especially your home – in addition to certain financial accounts, business interests, and other valuable property assigned to or titled in a trust. Your estate plan should be periodically reviewed and updated to ensure it meets your current needs. 

The Trusts and Estates team at FLAS can evaluate your estate plan documents and familial circumstances to advise you whether you need a will or a living trust, whether you need to update your current estate planning documents or change the way you hold title to a given asset. We can also help you evaluate your needs as to asset protection, privacy, and estate tax avoidance, and design a plan that works for you.

Consequences of Dying Without a Plan

Dying intestate doesn’t just determine who inherits your assets, it can also cause unintended complications:

• Probate Costs and Delays: Without a will, your estate must go through probate – a public, court-supervised process. This can be time-consuming, expensive, and stressful for your loved ones.

• Court-Appointed Administrator: The court appoints someone called an “administrator” to manage your estate. This may not be the person you would have chosen had you drawn up your own Will. Additionally, a court-appointed administrator–and their attorney, are each entitled to compensation based on a statutory fee schedule outlined in the California Probate Code. The statutory fee is calculated as a percentage of the gross value of the estate. Moreover, if the estate administration involves unusual complications (e.g., litigation, selling real estate, etc.) the administrator or attorney may petition the court for additional “extraordinary” fees, which can soak up a large part of the estate that your heirs would otherwise have inherited.

• No Guardianship Designation: If you have minor children and you pass away without a will designating guardianship, the court decides who will become their guardian based on a legal order of priority, and without specific guidance from you.

• No Charitable Gifts or Specific Bequests: Intestacy law doesn’t provide for gifts to friends, charities, or specific distributions you might have wanted to benefit from your estate. 

• Uncertainty in Outcome: There are many, often completely unanticipated reasons that a person’s estate may not be distributed in the manner that they assume it will be distributed upon their death. The best way to avoid unanticipated outcomes or costly litigation is to set forth your testamentary intentions in an an appropriate testamentary instrument, with the typical probate-avoidance type trust often times being the best option.

Why Planning Ahead Matters

Creating a will, or better yet, a comprehensive estate plan, including a probate-avoidance type trust, gives you control over:

• Who inherits your assets
• Who manages your estate
• Who becomes guardian of your children
• How to minimize taxes and expenses
• How to prevent probate 

Take the Next Step

Estate planning is for anyone who cares about protecting their loved ones after they have passed, and ensuring their wishes as to the disposition of their hard-earned assets are honored. At Fauver, Large, Archbald & Spray, LLP, we help individuals and families create tailored estate plans that reflect their values and goals. Don’t leave your legacy up to California’s default rules. Contact our team today to start planning for the future.