What if no will can be found? Is probate still necessary?

If a person dies and they have a will, there will have to be a probate proceeding to transfer the assets. As you know from reading the previous blog, a probate is simply the court supervised proceeding to determine who the heirs or beneficiaries are and transfer the assets to them.

If person dies and leaves no will ( ie. they died intestate), there will still have to be a probate. The Court will distribute your estate to your heirs at law to be distinguished from the situation where a will names the beneficiaries you want to inherit who may or may not be your heirs. As an example, if you want to leave money to a favorite charity, you have to name that charity in a will or a trust. Without either, your estate will be an intestate estate and be distributed to your heirs, not the charity you had in mind.

The distinction between a will and no will is simply that if no will is found, the estate will be distibuted according to the laws of intestate succession. In California with a decedent who is single, the beneficiaries will be the children; if no children, then to parents; if no parents, then to brothers and sisters or their children. If none of those individuals exist, then the estate will go to grandparents, if they are still alive. If none of those relatives exist, then the estate will go to the State of California.

If the decedent left a spouse, the community property will be distributed to the spouse and if there are no children, the separate property will also pass to the spouse. If there are children, the children will get a portion of the separate property.

The rest of the intestate probate administration will progress just as it does with a will. There will be a petition filed with the probate court to start the process and the court will appoint someone as the administrator of the estate. The assets will be inventoried and appraised, creditors notified, taxes paid if necessary, and assets distributed to the decedent’s heirs at law.

At Law Office of Scott C. Soady, A Professional Corporation we handle both testate and intestate probate. Initial consultations about your probate matter are at no charge. Probate administration is based on the statutory fee schedule set forth in the California probate code, which we will talk about in the next blog.