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If you leave behind a valid Last Will and Testament when you die, the estate you leave behind will be referred to as a “testate” estate. On the other hand, if you fail to leave behind a Will (or a trust that distributes your estate) the estate you leave behind is referred to as an “intestate” estate. Leaving behind a testate versus an intestate estate will dramatically impact what happens after you are gone.
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Probate is the name given to the legal process that follows the death of an individual. Along with inventorying and securing estate assets, probate allows creditors of the estate to file claims and ensures that taxes are paid. Eventually, any remaining estate assets are transferred to beneficiaries and/or heirs of the estate.
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No. A beneficiary is someone who is specifically named in a Will, trust, life insurance policy, or another legal document to inherit assets after your death. An heir is someone who is legally entitled to inherit from your intestate estate. A beneficiary may also be an heir and vice versa, but they are not interchangeable terms.
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An Executor is appointed in a Will. A Trustee is appointed in a trust. Either can oversee the distribution of assets; however, in the absence of a Will or trust (an intestate estate) the court will need to appoint someone to be the Personal Administrator. That person will oversee the probate process.
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Yes. California offers a Small Estate Affidavit that may be used if the gross estate does not exceed $166,250 (as of 2023). A Small Estate Affidavit cannot be used to transfer real property (a house or land for example), but another small estate alternative may be available.
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No. Certain assets can be distributed without going through probate. Common examples include trust assets, assets owned jointly with rights of survivorship, proceeds of a life insurance policy, and retirement/pension accounts.
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It depends on who survived you. If you left behind a spouse but no descendants, your spouse will get everything. If you left descendants but no spouse, your descendants will inherit everything. If you left behind a spouse and one child, your spouse inherits all your community property and 1/2 of your separate property and your child inherits the rest. If a spouse and two or more children survived you, your spouse inherits all your community property and 1/3 of your separate property, and your children inherit the rest.
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The goal of the California intestate succession laws is to distribute assets to a legal heir. As such, a search will be made for more distant heirs (aunts, uncles, cousins) before deciding that you have no legal heirs. If, however, an heir is not located, your estate will escheat to the State of California, meaning that the State of California will take possession and ownership of the assets.
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Contact Us
For additional information relating to business succession planning, contact the Collins Law Firm by calling (310) 677-9787 to register for one of our FREE estate planning workshops.
