Most people I talk to know that they should have a will or trust, but they’re not quite sure why. Perhaps more importantly, they wonder what happens if they die and they don’t have a will or trust? To be clear, dying without a will does not mean chaos and confusion (unless that’s just how your family rolls). California has rules in place to make sure that everything is taken care of in an orderly fashion, whether or not someone has a will or trust.
Here’s what happens when someone dies:
Disposition of remains. Something needs to be done with the body. If there’s no health care directive, then California gives this task to the surviving spouse. If there’s no surviving spouse, then the burden is on the adult children. If there are no adult children, then the responsibility goes to parents, then siblings, and then whoever has the closest blood relationship to the deceased person (“decedent”). If the decedent has no living relatives, or the relatives can’t be located, then the funeral director or cemetery administrator will have the authority to dispose of the decedent’s remains.
Life insurance policies and retirement accounts. These are controlled by contract and will automatically go to whoever the decedent named as a beneficiary. If the decedent did not name a beneficiary, or the beneficiary died before the decedent, then the money will be part of the general estate.
Pay on death accounts. Any accounts with a beneficiary designation will automatically go to the beneficiary, just like life insurance policies and retirement accounts.
Joint accounts and joint tenancy property. Any bank accounts held jointly, and any real property owned by the decedent and someone else as joint tenants, will automatically go to the survivor. The financial institution will need to be notified (and the County Recorder for joint tenancy property), but otherwise, no further work needs to be done for these assets.
Community property. Anything held as community property between spouses (which is almost everything for most married couples) automatically goes to the surviving spouse. The surviving spouse will need to update the records at financial institutions and the County Recorder’s Office, but that’s about it.
Assets in trust. If the decedent had a trust, then anything held in trust would be disposed of according to the terms of the trust.
General estate (i.e. everything else). If there is anything left in the estate after all of the above, someone will have to add up the value of the remaining estate. If the value is above the probate threshold limit (currently $166,000) then probate will be required. When an estate goes through probate, the Probate Court makes sure that the rules are followed, all debts are paid, and the remaining estate goes where it is supposed to go. If there is a will, then the probate process will be simplified, but it won’t be avoided entirely. Probate is orderly, but it is also tedious, time-consuming, and expensive.
If the remaining estate is below the probate threshold, then it can be dealt with by the surviving spouse or next of kin without going through Probate Court. There’s some legwork and paperwork required, but it will usually go faster than a full probate.
This is a 10,000 foot overview of the estate administration process, but it gives you an idea of what will happen to everything when someone dies. The easiest route by far is to simply have everything (or most everything) held in trust, which puts it all in a centralized location, tells everyone what’s supposed to happen, and names the person or people who are responsible for getting it done.
I hope this article has helped if you’ve been wondering what happens if you die and you don’t have a will or trust? I always believe this information should make you feel empowered to make the right decision for your family. If you would like to learn more about the estate administration process or would like assistance creating a trust, please contact me at kaway@kawaylaw.com.
