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What To Do If There Is No Will?

It is on everyone’s to-do list to create a last will and testament…eventually. But what happens to a person’s assets when a will has not been created?

Contrary to popular belief, the property does not just pass to the state. Nor does it necessarily go to the people the decedent most likely intended to name.

When there is no valid will, or if a will contest has caused the will to be thrown out, the court will look to California’s intestate succession laws to decide who the heirs will be and how the property will be dispersed among them.

At the Wessels Law Firm, our attorney has a wealth of knowledge about California’s intestacy statutes. We help clients understand their rights and guide them through the probate administration process.

California Probate Administration Without A Will

The process of probate administration when there is no will is very similar to the process when there is. One difference is that the process is commenced with the court appointment of an “administrator” rather than an “executor.”

The estate will still go through the process of estate inventory, notifications, debt repayment, and filing taxes. However, distribution of the assets will follow intestate laws rather than distribution to heirs named in a will. In many cases, it may be necessary to determine who those heirs actually are before making any distributions.

Who Inherits Property Under Intestate Succession Laws?

If the decedent was married or had a domestic partner at the time of death. If the decedent was married or had a registered domestic partner at the time of his or her death, it will be necessary to determine what property is community property (marital property) and what property is separate property (property held separately and owned solely by the decedent).

Any community property will pass directly to the spouse or domestic partner. Under California’s intestate succession laws, separate property will also go to the spouse or domestic partner if the decedent had no children or close relatives. Otherwise, there is a series of rules used to divide separate property among the surviving spouse, children and certain close relatives.

If the decedent was not married or in a registered domestic partnership at the time of death. If there is no living spouse or domestic partner, the courts will distribute assets based on any other living heirs’ relationships to the decedent. Under California’s intestacy statutes, the following heirs will have the first preference:

  • Children: To be divided equally among all children
  • All to parents: If no surviving spouse/domestic partner or children
  • All to siblings (or their children): If no surviving spouse/domestic partner, children, or parents
  • All to grandparents: If no surviving spouse/domestic partner, children, parents, or siblings (or children of siblings)
  • To the state: If, after an investigation, there are no relatives found

Contact our law firm, in San Jose, California, by calling 408-705-4577 for a free initial consultation. You will be able to discuss your probate needs with an experienced lawyer. Our firm provides the sound advice and strategy needed to successfully manage your legal needs.