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Probate Without a Will: How Does It Work?

When a person dies, and they had property upon their death, their estate (the assets they owned) generally must go through probate before anything is distributed. Probate is a legal process where a court oversees the management of the decedent’s estate. The process is required whether the decedent had a will.

If a will existed or not, the overall steps involved in probate are similar – the estate is inventoried, debts are paid, and assets are transferred to heirs or beneficiaries. Things differ in terms of who takes care of the tasks and who gets what. When a decedent has a will, their executor will divide assets according to the person’s wishes. If they didn’t have a will, an administrator manages the estate according to California’s laws.

Probate can be a complex process, especially if the decedent did not have a will. If you have been appointed the administrator of an estate in Los Angeles, contact the Law Office of Mitchell A. Port at (310) 526-3433 to learn how we can help.

What Is Probate?

Probate is a legal process an estate must go through to transfer a decedent’s property to heirs or beneficiaries. Usually, it’s only required when the decedent’s estate is valued at more than $184,500 in personal property and $61,500 in real estate for deaths after April 1, 2022. Smaller estates can go through a simplified process.

Probate is concerned with determining:

  • Whether a valid will exists,
  • The value of the decedent’s estate,
  • How the decedent’s debts and expenses are paid, and
  • Who the remaining property is distributed to.

A personal representative for the estate manages the tasks listed above, and the court oversees the process.

Who Is the Personal Representative When a Will Doesn’t Exist?

Typically, when a person establishes a will, they assign someone to serve as their personal representative, called an executor, upon their death. If an individual dies without a will (called dying intestate), the court appoints an administrator to manage the estate.

California law determines who the court may select as the administrator.

In order of priority, the individuals include, but are not limited to, the decedent’s:

  • Surviving spouse or domestic partner,
  • Child or children,
  • Grandchild or grandchildren,
  • Other offspring,
  • Parents, and
  • Siblings.

If someone dies intestate and the court must appoint an administrator, things could get complicated when multiple people have the same priority. For example, if the decedent had more than one child, disagreements might arise over who manages the estate and how everything is handled.

How Is Property Distributed When Someone Doesn’t Have a Will?

In intestate matters, the property is transferred to the decedent’s heirs according to California’s intestate succession laws.

The law provides that assets shall be distributed as follows:

  • The decedent has a spouse but no children, parents, siblings, or nieces or nephews
    • The surviving spouse gets everything
  • The decedent has a spouse and one child or grandchild of a deceased child, or has a spouse and parents but no children
    • The surviving spouse gets all community property and one-half of separate property
    • The other half of the separate property goes to the child, grandchild, or parents
  • The decedent has a spouse and more than one child, a spouse and one child and one grandchild of a deceased child, or two or more grandchildren of a deceased child
    • The spouse gets all community property and one-third of the separate property
    • The children or grandchildren get two-thirds of the separate property
  • The decedent has no spouse but has children
    • The children get everything
  • The decedent has no spouse and no children
    • The parents get everything
  • The decedent has no children, no spouse, and no parents
    • The siblings get everything

The estate administrator’s job is to identify the decedent’s heirs and distribute the assets accordingly after paying all debts and expenses.

Schedule a Consultation with an Attorney

Probate must be done according to state laws when a person dies without a will. It can be challenging to fully comprehend what steps to take, how to determine who will inherit property, and how to transfer assets to the heirs.

If you need legal help with the process, please reach out to our Los Angeles attorney at the Law Office of Mitchell A. Port by calling (310) 526-3433 or submitting an online contact form today.

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