After death, the process of estate administration begins. During the administration phase, the individual’s assets are collected, creditors are paid, and the rest of the estate’s assets are distributed to beneficiaries in accordance with the estate plan.
Probate assets are those that the testator owned that were in his or her name at the time of death. If the testator left a will, that document would dictate how beneficiaries receive their inheritance and how much of the estate they are entitled to.
Finding the Will
To determine who the decedent has selected to administer the will, family members must locate the document. The attorney used for estate planning in San Diego may have a copy of the will. Once the administrator is identified, they must file their status with the court. This initiates the process of probate. The administrator’s petition to work as the executor must be approved by the court before probate begins.
What Happens When the Person Dies Intestate?
Estates without a will are referred to as “intestate” estates. Even if a person goes through estate planning, the extent of that estate plan will determine a lot. For example, certain items cannot pass through a will, such as real estate or retirement accounts. Instead, these things would need to be placed in a trust.
Factors for Intestate
Several critical factors must be decided when a person dies intestate. These include:
- Administration: The courts must appoint an administrator to oversee the estate during probate. Also, California state law provides a list of people who could fill the role. These individuals may petition for the job during probate and the probate court judge will decide which party is best suited for estate administration.
- Succession rules: The state dictates the hierarchy of inheritance; therefore, some individuals whom the deceased would not have given the property to may inherit that property because the court must follow the succession rules dictated by California. Typically, the hierarchy follows the logical pattern of a spouse, surviving children, parents, and so on.
- Custody of minor children: The court must decide who is a fit guardian for any minor children of the deceased. If one parent is surviving, then they are likely to receive guardianship. However, if no parents are surviving, then the courts must determine which party is best suited to handle custody and care of the minor children.
What about Same-Sex Marriages?
This is a complex issue. If one is in a same-sex relationship and has a legally recognized marriage, then they should receive the same succession rules. If, however, the state does not acknowledge the marriage then it is best that the couple do estate planning in San Diego to protect each other. Not all states recognize same-sex marriages; therefore, the only way to ensure a same-sex partner receives an inheritance is through an estate plan.
Dying without an estate plan means that the court decides the estate, and most of those decisions may be counter to what the deceased would have wanted.