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Horizon Elder Law & Estate Planning Blog

Saturday, June 18, 2022

What is Intestate Probate?

Intestate probate is the process that an estate has to go through when a person dies without leaving a valid will or living trust behind. After gathering the assets and paying the debts of the estate, the administrator will distribute the remaining assets according to the rules of intestate succession in California.

Often, the assets get distributed in a way the decedent might not have wanted. If you do not want this type of outcome for your estate, you will want to prepare a will or a living trust. A California probate attorney can provide guidance and handle the intestate probate process. Here is an overview that answers the question of what is intestate probate.

The Intestate Probate Process

Many of the steps of the probate process are the same, whether the person died with a will or was intestate. In general, the probate court handles these functions:

  • Determines if there is a valid will.
  • Finds out who are the heirs or beneficiaries of the estate of the decedent.
  • Discovers what assets belonged to the deceased person and calculates the total value of the estate’s property.
  • Pays the valid debts and expenses, including probate costs, of the decedent.
  • Distributes the remaining assets of the deceased person’s property to the heirs or beneficiaries. When there is a valid will, the distribution usually follows the terms of that document. For an intestate estate, the probate court will transfer assets according to our state’s rules of intestate succession.

It is more complicated to administer an intestate estate than one that involves a valid will or living trust. An estate planning lawyer can handle much of the legwork for you.

Assets That Do Not Have to Go Through Probate

If the deceased person owned assets for which he designated a beneficiary, those items might not have to go through the probate process. For assets like this, the existence of a will or the lack thereof is irrelevant. Here are examples of some assets that might not have to go through probate, if the decedent correctly designated a beneficiary of the asset or account:

  • A life insurance policy that names an individual or an organization (like a charity) as the beneficiary. If the deceased person had a life insurance policy but left the beneficiary designation blank or made his own estate the beneficiary, the policy proceeds will have to go through probate.
  • A retirement account that designated someone other than the deceased person’s estate as the beneficiary.
  • A bank or investment account that designated a beneficiary who was not the deceased person.
  • An account or asset that named a beneficiary and was titled as TOD (transfer on death) or POD (payable on death).
  • If the decedent had a living trust, the assets that had been titled over to the trust do not have to go through court to get transferred to the beneficiaries.

All other assets of the deceased person must go through the probate process.

Who Inherits When There Was No Will or Living Trust

After the court deals with any community property, the remaining assets will get transferred to the surviving relatives of the decedent. The distribution formula will depend on whether the deceased person had any surviving spouse, children, or grandchildren. Potentially, the decedent’s surviving parents, brothers, sisters, nieces, or nephews could inherit.

A California estate planning attorney could explain how distribution according to intestate succession would work in your family’s situation. For legal help with your estate planning get in touch with our office today. We offer a free consultation.


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