What Happens to My Property When I Die?
When you die, your property will go through the court process known as probate. During probate, the court will process your will, accept or name a representative, and appropriate any inheritance to your heirs.
The Probate Process in California
When you die, someone must come forward to begin the probate process. If you have a will, that will probably be the executor you named. When there is no will, or the executor is not available, the court will appoint a representative to oversee the administration of the estate.
Once this person is given the authority by the court, he or she will begin the process of organizing, gathering, and valuing all the assets in your estate. While the job of an executor can be extensive, other family members or your estate attorney can help guide the process.
The Executor’s Job
The executor’s job will include
- Filing the will in probate court -- Your executor must locate and read the will to determine who your heirs are and how your property will be distributed.
- Notifying all agencies, institutions, and heirs of your death -- Your executor will need to inform all banking institutions, mortgage companies, credit card companies, government agencies, and any heirs of your death.
- Setting up management accounts -- Your executor must manage any income or the payment of debts owed by the estate.
- Filing a list of assets -- Your executor must analyze and inventory all assets owned by the estate and file this with the court.
- Maintaining assets -- Any property that is held by the estate must be maintained, protected, and managed by the executor until it can be distributed or sold.
- Paying off any debts -- Any debts, expenses, or taxes left must be paid by the executor, including any final income tax returns.
- Distributing assets -- Your executor is then required to distribute all remaining assets to heirs in accordance with the terms of the will.
- Disposing of other property -- Your executor must dispose of any other property remaining after the distribution of assets. Loved ones may take some of the personal property that was not named in the will or it may be sold, discarded, or donated.
While the executor typically has the authority to do most things associated with the administration of the estate without court approval, there are some tasks, such as selling real property, that are subject to the approval of the probate court.
During the probate process, the executor must keep all assets safe and maintained, taxes filed, and creditors paid. In California, all creditors have four months to come forward with any claims for payment. If there isn’t enough money in the estate, however, probate code specifies in what order claims get paid from the estate.
What Happens When There is No Will?
If you die without a will, your estate will still go through probate and an administrator will be named by the court. But without a will to offer guidance to how you would have wished your property to be distributed, the administrator of the estate must distribute assets according to California’s intestate succession laws after all debts have been paid.
Intestate distribution sets out a standardized version of asset distribution that most resembles what an average person may have wished. But this is not always the case for some individuals, which is why everyone should have a valid will. Otherwise, state law decides on who gets what from your estate.
Does All Property Have to Go Through Probate?
In California, not all assets must go through probate. The California Probate Code has imposed a threshold on assets of $166,250. If your total assets do not exceed that threshold, these assets may not need to be probated.
Assets that don’t need to go through probate include
- life insurance policies
- assets held in trust
- real property held in joint tenancy
- IRAs and 401ks
Non-probate assets will have their own provisions for transfer and will be transferred to the beneficiaries by the various institutions that hold them. Real property that is held in joint tenancy will go to the surviving individual on the deed. Other personal property that doesn’t exceed the small estate threshold can be transferred by means of a small estate affidavit without going through the probate court.
Sound Estate Planning is the Key in Califronia
While probate may seem complicated, good estate planning can vastly simplify it for your heirs and loved ones, especially if you have extensive assets or small children. Unfortunately, without taking affirmative steps, you may not have the final say in what happens to your estate or who administers it.
At the Law Offices of Roshni T. Desai, our Santa Ana estate planning attorneys have dedicated our careers to ensuring the future of our clients and their loved ones. Call us at (714) 694-1200 or contact us online to schedule a free consultation to discuss your estate planning needs.