If there is no will, everything in the estate reverts to the state law of intestate succession, which means they died without exercising their right to decide where their stuff goes when they die, in the form of a will or a trust, so that right reverts to the state law which decides where everything goes. In California, if you die when you’re married and everything was community property, it all goes to your spouse. If there is no spouse, it goes to your kids and if there are no kids, then it will go to your parents, or siblings or so on, until the state finds an heir.
If a will is missing or can’t be found, that estate, too, will revert to the state law of intestate succession, since there is no evidence the will exists. Wills cannot be oral; there must be documentary evidence of the person’s true intent. If there is no will, then it goes through a regular probate with the assets distributed to the heirs according to the laws of intestate succession.
Is there a Way to Find Out if There is a Will for Someone?
Sometimes, people will register their will at the local County Probate Court Clerk’s office, and there are some private companies that will register your will, so you could look there, or you can just search the person’s residence or safe deposit box to find one. I’ve had situations in which we had to get a court order to open a safe deposit box because that’s where the person had put their will; then we probated the will and distributed the assets according to the will.
How Much Does Probate Actually Cost?
In California, it’s all based on a formula that works like this: we add up the value of all assets, but don’t deduct the debt and figure it from that. If there is a $500,000 house with a mortgage against it, the asset is worth $500,000 and you calculate from that; for $500,000 house, it’s 4 percent of the first $100,000, 3 percent of the next $100,000 and 2 percent of everything above that, up to $1 million. So, the attorney and executor each would make $13,000 and add a couple thousand for court costs, so for a $500,000 estate, expect it to cost about $28,000 give or take a little bit of money here and there.
How Long Does the Probate Process Take?
I always tell clients that, from the time we file the petition until we get the order for distribution to the heirs it will generally take 9 months to a year, if everything goes according to plan and there are no objections or unnecessary delays, but some probates can take up to a couple of years. I got involved in one probate case that has been in the system for 15 years, and while it’s happening, everything just sits there and there’s nothing anyone can do. But as a general rule, it will take about a year.
Is There Any Way to Expedite the Probate Process?
The number one thing that you need to do is get the attorney all of the necessary information to get the probate petition filed, since deadlines begin running the date you file the petition. That means telling the attorney who the heirs are, their relationship to the decedent and a list of the decedent’s property. Then, get the probate petition filed and assist the attorney in the process in a timely fashion.
If there is real estate to be sold, then get the house fixed up and sold; get the financial assets liquidated and perform every duty required in a timely fashion. The attorney is somewhat limited by what the executor’s willing to do and when but generally, if you have a competent attorney and you’re doing what you need to do, the process will move along and will be completed in about a year.
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