Frequently Asked Questions about Wills, Trusts & Probate
What happens if you die without a will?
- In California, if you die without a will, you are said to have died intestate.
- California has a set of default rules for who gets the estate if there is no will.
- Generally, as to community property, the surviving spouse gets 100% of the community property if there is no will in California.
- As to separate property, the children and spouse share it depending on whether there are any children, and the number of children.
The Default Estate- No will
Community Property: 100% to Spouse, or Registered Domestic Partner, if any.
If there are no children, the spouse (Domestic Partner) gets it.
If there are children, ½ to spouse, and ½ if only one child. If more than one child, then 1/3 to spouse and 2/3 split among the children.
What is the Cost of Probate Administration in Los Angeles
- Generally, there are several categories of fees and costs.
- Statutory Fees and for Personal Representative and for the Attorney for the Personal Representative
- Extra-ordinary Fees for Personal Representative and his/her lawyer.
- Bond (if not waived)
- Filing Fees for Petitions
- Probate Referee’s Appraisal Fees
- Miscellaneous Costs of Letters and Certified Orders
- Translation of California Statutory Fees
Estate Size Statutory Fees for Each Personal
Representative and his/her attorney
How long does it take to close a probate estate in Los Angeles?
- A nice probate without any litigation in Los Angeles can take about a year.
- Most cases take somewhere between 1-2 years to complete.
- Complications can happen when there are undiscovered assets or assets which have escheated to the State of California or other states.
- What if there is not enough money to pay cash gifts in a will?
- Cash gifts usually get paid first before the residue.
- If there is no residue, and the cash gifts exceed the size of the estate, the cash gifts get reduced (called abated.
What happens if the deceased left more than one will?
- If the decedent left more than one will, generally, there is a presumption that the last one governs, unless:
- You can show there was fraud, duress, mistake, undue influence, or lack of capacity at the time of execution of the will.
- In that case, there will be a will contest and the court will set the case for a trial as to which will is valid.
What are the best ways to prevent
gold diggers from getting to your trust assets?
- Preventing undue influence can be effectuated by:
- Naming a Professional Fiduciary as Successor Trustee
- Setting up an automatic change in the trustee to a professional, once trustor reaches a particular age
- Creating an Exclusive Method of Revocation for the Trust.
- Creating an Exclusive Method of withdrawal and transfer of property from the Trust.
About Mina Sirkin, Los Angeles Probate Lawyer
- Mina N. Sirkin has been practicing probate law in Los Angeles County since 1992.
- Ms. Sirkin is a Board Certified Specialist in Probate, Estate Planning, and Trust Law in California.
- Frequent Media Expert on Estate and Conservatorship Cases in Los Angeles
- Appeared on CNN, CNBC, Inside Edition, RollingStone.com, KCET, NPR News