What Happens if There Is no Will in Probate?

Many of my clients are concerned about what happens if there is no will or trust when a family member passes away. In fact, a few of them are afraid if there is no will or trust that the State, in this case California, will “take everything.” No state takes everything if there is no will or trust, but every state has a series of laws that dictate who will receive a person’s property if that person died without a will or a trust. These laws are generally known as the laws of intestacy because “in” means “without,” and “testacy” means a written document.

Laws of Intestacy in California

Under the laws of intestacy in California, if there is no will or trust, then typically, the closest relative receives the decedent’s property. And if the property is significant enough, meaning in most cases that it is valued in excess of $150,000, then the distribution of property will have to go through the probate process.

Some clients ask “does a will avoid probate?” Unfortunately, the answer is no. Instead you should be asking whether or not there is a trust for the property at stake. A will does not avoid probate, but a trust can.

No Will Probate

In determining the closest relatives of a person who died without a will or a trust, typically the first individuals in line for inheritance are a spouse, if any, a child or children, if any; a parent or parents if any, and then the person’s siblings, and outwards to the closest livings relatives. An attorney is sensitive to these issues and typically takes care when drafting a will or trust to identify the person’s spouse and/or children and how they are to be dealt with. This is one reason, among many to contact experienced counsel when drafting your will or creating a trust.

The Law Offices of David Baker can assist you with your will and estate planning in California. If you are in one of the following Bay Area locations: San Francisco, Berkeley, Albany, Pinole, Crockett, Martinez, El Sobrante, El Cerrito, Vallejo and Richmond, call us or contact us today to discuss your situation (510) 724-2020.
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