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California Probate Law
Posted by: cpw, May 11, 2009 05:53PM
I only need a rough answer here, I'm not taking any actions....just curious. My nephew died, with no will, but with $350K in a bank account and a car. Survivors are his parents and two siblings. Is that fairly easy to probate in CA? Roughly, how do his assets get divvied up?

Re: California Probate Law
Posted by: Sven, May 11, 2009 06:38PM
From the following excerpt from on line stuff on California law where there is no will, the parents get everything.
Here is the clip I copied from somebody's summary:

1. The first question is whether the decedent (the person who died) was married.

A. If the decedent was not married, the estate is distributed as follows:
1. To the decedent's children, who take in equal shares if they are in the same generation.
2. If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents.

I cannot imagine that all cash in one account and a car are going to be all that problematic, especially if no inheritance tax is due, as if often the case when things pass to family members. '

Was anyone listed as a Payable on Death person on the bank account? If so, will or no will, they get the bank account.

Re: California Probate Law
Posted by: cpw, May 11, 2009 07:03PM
Sven...exactly what I was looking for, thanks.

Re: California Probate Law
Posted by: DeeDee, May 12, 2009 01:04AM
California has a small estate procedure that avoids probate. The estate must be valued at $100K or less to use this procedure. If some of the bank assets are titled as joint assets or POD assets or have a beneficiary, the estate may meet the criteria of small estate. Refer to Section 13050 of the Ca Probate Code for more info.

Re: California Probate Law
Posted by: cpw, May 12, 2009 01:15AM
DD...thnx, but may not work with $350+K. Nephew was a hermit, I doubt anyone was named beneficiary.

a legal right
Posted by: jainen, May 19, 2009 03:28PM
>>....just curious<<

You have a legal right to be curious. Probates are PUBLIC proceedings, and $350,000 cash will likely attract all sorts of curiosity. Tell your brother or sister to get an attorney, and don't let the Public Administrator touch it.

Re: a legal right
Posted by: cpw, May 19, 2009 03:48PM
j...the attorney was hired yesterday!

Hired by the estate
Posted by: jainen, May 21, 2009 08:13PM
>>the attorney was hired yesterday<<

Hired by the estate, the executor, or the heirs?

Re: Hired by the estate
Posted by: cpw, May 21, 2009 08:23PM
j...you're probably asking more than I know. As per Sven, my brother (the father) and his wife are the heirs, and they hired an attorney to "facilitate things" (ie, whatever needs doing).

a thrifty approach
Posted by: jainen, May 21, 2009 10:55PM
>>they hired an attorney to "facilitate things" (ie, whatever needs doing)<<

That's not exactly a thrifty approach to legal advice. An estate attorney has a maximum (theoretically) fee that would be nine or ten thousand, but if he represents the heirs in a contested proceeding it could be 1/3 of $350,000 so I hope he doesn't decide that some sort of contest "needs doing."

When I mentioned curiosity, I didn't mean to suggest that attacks would only come from outsiders. If you get along with the bereaved couple you might ask to take a peek at things, to see what exactly does need doing.

Re: a thrifty approach
Posted by: Sven, May 22, 2009 02:38AM
This is Sven, and, well, "per me" if the nephew had no will and if nothing was jointly held, then his parents are his sole heirs under California law. But the estate still is the estate and somebody needs to be the personal representative or whatever Cal calls him or her. It may well be Mom or Dad appointed by the court. What"whoever" needs to do to get the Cal probate process, simple or complex, going. If that means hiring a lawyer by someone (and it may well be the personal representative of the deceased) then somebody needs to do it. I mean Jainen is quite right there are different interests at work here. Somebody, however, needs to do something.

Maybe I am reading too much into the discussion but what is the relevance to the facts as presented so far of discussing what lawyers may get in a contested proceeding, other than to caution against letting lawyers run amok. What is to contest? Cal law provides who gets what in intestacy and the siblings simply lose if this is a garden variety intestate situation. What are they going to contest, California intestacy law?

Now if there happen to be esoteric facts the sibs can raise, and who can't for $350K, maybe they can manufacture something to "contest" Mom and Dad getting the money to their exclusion, jike maybe Mom and Dad having exerted undue influence on the deceased not to make a will that gives the sibs a share.

Finally, in a pitch for lawyers after flaying them, this is why people need to have wills. Dying intestate puts the State in the picutre, which rarely turns out to be a pretty one.

Re: California Probate Law
Posted by: cpw, May 22, 2009 02:26PM
This is not a contested hearing...should be trivial as probate hearings go. One interesting twist, tho, is that Mom and Dad want to give the sibs the $350K. Is that treated like a "gift" (the $13K/$1M and all that stuff) or can it flow thru to the sibs avoiding gift tax considerations?

claiming to be a relative
Posted by: jainen, May 22, 2009 03:15PM
>>What is to contest? <<

Who knows? That's the reason it has to go to probate. Maybe there will be claims about some hidden assets. Hidden debts. A hidden will. Even a hidden spouse.

We at least know that the parents are contesting their own inheritance rights, which opens things up to other people claiming to be a relative.

Re: California Probate Law
Posted by: Sven, May 23, 2009 02:23AM
If the 'rents want the 'sibs to share the $350, why don't they simply disclaim the inheritance?

Re: California Probate Law
Posted by: cpw, May 23, 2009 03:31PM
I think that's the back-up plan. One of the sibs is a ne'er do well, Dad would like to maintain some control.

Re: California Probate Law
Posted by: Sven, May 25, 2009 01:27AM
Can't have it both ways, Dad! Want the strings, take the money and set up a trust for the ne'er do well sib. Stand aside and there are no strings attached if he inherits half.

Re: California Probate Law
Posted by: audreyrichard, June 4, 2013 11:48AM
Allocating your assets simply means deciding how much you should have in stocks, bonds, cash and other investments. And within each category, it means deciding on types of bonds, stocks, mutual funds or other securities. When you decide to invest 90 percent of your money in stock funds and keep the rest in a money-market fund, you are allocating assets.

Re: California Probate Law
Posted by: audreyrichard, June 4, 2013 11:49AM
Allocating your assets simply means deciding how much you should have in stocks, bonds, cash and other investments. And within each category, it means deciding on types of bonds, stocks, mutual funds or other securities. When you decide to invest 90 percent of your money in stock funds and keep the rest in a money-market fund, you are allocating assets.

Re: California Probate Law
Posted by: Drewremedy, June 4, 2013 05:41PM

Now you are starting to add complications.

Lets assume under CA intestacy it all goes to parents--that should be easy and not costly to administer unless parent didn't pay attention as to lawyer fee agreement.

Parents have a legal right to make a timely disclaimer in whole or in part to the administrator --which may be themselves.

However the basic rule is a disclaimer cuts the cord of control and acts as if the person died and whatever it is passes to the next persons in line WITHOUT direction.

If parents want to keep one child out of the loop then for parents to disclaim is generally not a way to do it. (absent an interlocking disclaimer from the child )

One way to maintain control is to accept the full inheritance and then make such specific gifts as parents want over a timeframe that fits thier views and tax planning interests--but that is a step outside of probate administration.

Re: California Probate Law
Posted by: tomd37, July 15, 2015 02:00PM
Anne - Hopefully this issue is long resolved as it is two years old now based on the date of the initial posting.

Tom D.



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