Sep 13, 2023
Frequently Asked Questions about Probate in Texas: Answered
Probate in Texas made simple. Explore our detailed FAQ for expert guidance on probate processes, and best practices in the lone star state.
Keeping an up-to-date, valid will is of the utmost importance so that even after an unexpected passing, your assets will be distributed according to your wishes and your family will have a clear path of action.
But with over half of all Americans lacking an estate plan, let alone a will - it’s not unusual for someone to pass away without having left a will.
If this happened to your loved one and you’re finding yourself struggling to settle their estate, you’re not alone. During this difficult time of loss, knowing the basics of Californian intestate succession law can help you see a way forward.
If you die without having created a will, under California law, you have been considered to have passed away intestate.
What you leave behind to your heirs and beneficiaries is up to California’s Intestate succession law. Governed by California state probate code §6400-6455, intestate succession dictates that your closest relatives will inherit your property, regardless of your relationship with them or your personal wishes.
Although these laws are designed to ensure that your assets go to your closest relatives, it’s important to understand the specifics.
Let’s take a closer look at who inherits what under California’s intestate succession laws:
To best understand who inherits under California's intestate succession law, it's best if we go over the different ways in which properties are recognized in California:
1. Community property and 2. Separate property.
Community Property pertains to assets acquired by a married couple during their marriage, excluding any inheritance or gifts. In California, both spouses have an equal interest in community property. Upon the death of one spouse, their 50% share of the community property automatically passes to the surviving spouse, without going through probate.
Separate Property refers to assets acquired by an individual before marriage or acquired during marriage through inheritance or gift. It also includes any earnings or assets acquired after legal separation.
In the unfortunate event someone passes away without a will, if there is a surviving spouse in most cases they will inherit 50% of the separate property, while the remaining 50% will pass to the deceased's children, parents, siblings, and other relatives - according to California's intestate succession law.
To make intestate succession a bit easier to understand, we’ve created this table for intestate succession in California:
|Deceased’s survivor(s):||Who Inherits:|
|Children but no spouse||Children inherits everything|
|Spouse with no children, or no immediate next of kin (parents, siblings, nieces, cousins)||Spouse inherits everything|
|Sibling with no other next of kin (parents, children, spouse, relatives)||Siblings inherit|
|Spouse and 1 child||Spouse inherits all community property and ½ (50%) of the deceased’s separate property.|
|Spouse & 2+ children||Spouse inherits all community property & ⅓ of deceased's separate property; with children inheriting an evenly split remaining ⅔ of separate property.|
|Spouse and parents of the deceased||Spouse inherits all community property, and ½ (50%) of the deceased’s separate property - with the parents inheriting the remaining ½ (50%) of separate property.|
|Spouse and siblings, no surviving parents||Spouse inherits all community property, and ½ (50%) of separate property. Siblings inherit the remaining ½ (50%) of separate property.|
If your spouse has passed away without a will, and all of the property you 2 owned are owned as community property - the surviving spouse can fill out form DE-221.
It proves that you are the spouse while also giving you an opportunity to make your case for the property you believe you're legally entitled to. It’s also important to point out that in California, these spousal succession laws also apply to registered domestic partners.
Five-Day Survival Rule: For an heir to be eligible for inheritance, they must outlive the decedent by a minimum of 120 hours, or five days. If they fail to meet this requirement, the law considers them as having died before the decedent, and their estate will not inherit.
Consequences of Legal Separation: A surviving spouse who was legally separated from the decedent at the time of death is not entitled to inherit any part of the community property.
Per Stirpes Distribution: The term "per stirpes" originates from Latin. In Latin, "per" translates to "by" or "through," and "stirpes" means "roots" or "stocks." In inheritance law, "per stirpes" is a principle governing how an estate is distributed through a deceased heir's line of descendants, ensuring that their share is passed down to their descendants evenly.
To better illustrate the concept of per stirpes distribution, consider this example:
John, the decedent, has three children: Alice, Bob, and Carol. Sadly, Bob died before John, leaving two children, David and Emily
In this situation, per stirpes distribution operates as follows:
Alice and Carol, John's surviving children, each inherit an equal portion of John's estate.
Bob's share, as he predeceased John, is divided equally between his children, David and Emily.
So, if John's estate is divided into thirds for his children, Alice and Carol each receive one-third, while David and Emily each get one-sixth (half of Bob's one-third share).
Inheritance Rights of Half-Siblings: Half-siblings hold the same legal right to inherit as full siblings, regardless of whether they share one or both parents.
Rights of Posthumous Heirs: If a relative was conceived before the decedent's death but has not yet been born, they are still eligible to inherit.
Citizenship and Inheritance: The right to inherit under California law is not impacted by an heir's citizenship or immigration status.
Considering Lifetime Gifts: Gifts given by the decedent to a relative during their life can be deducted from the relative's inheritance if there was a written agreement or written acknowledgment by the recipient.
When someone passes away their after-life affairs will need to be taken care of, for example, paying creditors, selling assets, distributing assets to beneficiaries, etc.
The formal name for this process is called Probate, which is a court supervised process that oversees the distribution of a deceased individual's assets and the settling of their debts.
This procedure ensures that the estate is managed properly and beneficiaries receive their inheritance as dictated by law.
To commence probate, someone with the authority to represent the estate must file the petition for probate, form DE-111.
Thus - the need for appointing a personal representative. In the unfortunate case of someone dying without a will (intestate), the court will either appoint a personal representative or someone with an interest in the estate can submit a court application to apply to become the personal representative of the estate.
However, not just anyone can apply for a personal representative, California's Probate Code § 8461 outlines the order of priority for individuals who may serve as the personal representative:
Surviving spouse or registered domestic partner
Other surviving issue (great-grandchildren)
Issue of siblings (nieces or nephews)
Issue of grandparents (aunts or uncles)
Adult children of a predeceased spouse or registered domestic partner
Other issue of a predeceased spouse or registered domestic partner
Other next of kin
Parents of a predeceased spouse or registered domestic partner
Issue of parents of a predeceased spouse or registered domestic partner
Conservator or guardian of the estate acting in that capacity at the time of death who has filed the first account and is not acting as a conservator or guardian for any other person
Any other person
Once a personal representative has been appointed and approved by the court, the personal representative takes on the fiduciary responsibility of impartially settling the deceased's estate to the best of their ability.
Inventory and appraisal: The personal representative is responsible for creating a detailed inventory of the deceased's assets, including real estate, personal property, bank accounts, and other valuable items. This inventory must be accurately appraised to determine the fair market value of each asset.
Managing the estate: During the probate process, the personal representative must ensure the proper management and preservation of the estate's assets. This may involve overseeing financial accounts, maintaining property, and ensuring the payment of any necessary expenses.
Paying debts and taxes: The personal representative must identify and settle the deceased's outstanding debts, including any taxes owed. This may require the sale of assets to generate the funds needed to satisfy these obligations.
Filing court documents: Throughout the probate process, the personal representative must file various documents with the court, such as the inventory and appraisal, accountings, and petitions for distribution. These filings ensure the court is aware of the estate's progress and can approve the necessary actions.
Distributing assets: Once debts and taxes are settled, the personal representative must distribute the remaining assets to the appropriate beneficiaries. In the absence of a will, California's intestate succession laws dictate which heirs are entitled to receive a portion of the estate.
Closing the estate: Finally, the personal representative must petition the court to close the estate, signaling that all required tasks have been completed. Upon approval, the personal representative is formally discharged from their duties.
It can be difficult to untangle all of the legal complexities of intestate succession. Instead, turn to a professional estate executor who's familiar with probate courts and handling inheritance in the absence of a will.
Family should be able to come together and lean on each other in mourning, and the stress and potential for disputes that come with attempting to handle everything on your own should never get in the way of that.
If you’re currently dealing with an estate that doesn’t have a will and feel overwhelmed, let us help. Schedule a free consultation and find out how we can help you navigate this process together.