What if I Die Without a Last Will and Testament?

If you die without a Last Will and Testament, it is called INTESTATE SUCCESSION. Intestate Succession is an Estate Plan by default. If you die without a Last Will and Testament, the State of California has written one for you. Probate is still required and there is no guarantee that your assets will be distributed as you desire.


What is a Last Will and Testament?

Your Last Will and Testament is a letter addressed to the judge of the Probate Court. "Dear Judge: Now that I have died, I would like to give…" It is the Judge's sworn duty to read the instructions in the letter and accomplish your objectives. A Last Will and Testament does not avoid Probate nor its associated costs and delays. It actually it guarantees your Last Will and Testament must undergo these costs and delays.


Advantages of a Last Will and Testament

  • LOW COSTS
    The establishment costs are low. You can write your own Last Will and Testament, called a Holographic Last Will and Testament, for nothing, or have an attorney prepare your Last Will and Testament.
  • SIMPLE
    The Last Will and Testament provides a plan that is simple during your lifetime.
  • PERSONAL WISHES
    The Last Will and Testament instructs the Judge to distribute your assets. However, there is no guarantee that your assets will be distributed as you desire unless your Last Will and Testament is current.

Disdvantages of a Last Will and Testament

  • PROBATE
    A Last Will and Testament requires Probate, which is a public record.
  • EXPENSE
    A Last Will and Testament is more expensive because of Statutory Probate Fees.
  • DELAYS
    A Last Will and Testament forces delays of distribution of assets, usually 1-2 years or more.

Four Exceptions to the General Rule

Even though you have a Last Will and Testament, when you die, your estate must be Probated. There are four exceptions:

  • JOINT TENANCY with Right of Survivorship. (Joint Tenancy also avoids the directions of your Last Will and Testament and may direct property to a person you do not intend.)
  • SMALL ESTATES with gross real estate and personal assets valued under $100,000, there will be no Probate.
  • LIVING TRUST with assets transferred to your trust before death.
  • COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP assets between Husband and Wife will automatically transfer to the surviving spouse.

Unless your estate is within one of these exceptions, it must be Probated with all the costs and delays.