Call for an initial consultation: 510-402-1579
We Speak Korean – 한국어로 도와드릴수 있습니다

Don't Make A Move
Without Knowing Your Options

Newark Family And Estate Law Blog

In most cases in California, after a death, an estate representative will close out the estate through the probate process. The California Courts note that smaller estates may not need to go through probate and an informal estate representative will complete the process.

When the formal probate process is necessary, the court appoints one or more estate representatives.

If the deceased named someone in a will

A judge usually appoints the person or persons who the deceased named in his or her will. However, there may be exceptions. For example, according to the California Probate Code, a judge may not appoint someone who is a minor or someone who is a ward of a guardian or conservator. In that case, the judge may simply appoint the guardian or conservator or may choose someone else.

Likewise, if there are conflicts of interest or another challenge by those who have an interest in the estate, the wishes of the deceased may not stand.

If there is no will

The courts have a list of priority for who may be the estate administrator if the person died intestate. This begins with the spouse or domestic partner, then moves to the children, then the grandchildren, then other issue of the deceased. The list continues in this order:

  • Parents
  • Siblings
  • Nieces and nephews
  • Grandparents
  • Children or grandchildren of grandparents
  • Children or grandchildren of a deceased spouse or domestic partner

The person with priority may nominate someone else, and the judge will consider that nomination before the next person in order of priority unless the nominated person is further down on the list than the grandparents.

Other factors may apply, and much of the outcome is dependent on the discretion of the judge, so it is wise to have a thorough understanding of the Probate Code before filing a challenge.

Every couple should discuss finances before they marry, and if you already have bank accounts, retirement accounts or other assets, it is particularly important. Debt is another critical topic to talk about.

According to NetCredit, you and your new spouse could be setting yourselves up for trouble if you have not addressed how your marriage will affect financial matters.

Marital property

The assets, accounts and debt that you and your spouse acquire or contribute to during the marriage are community property in California. This means no matter whose name is on the title, account or loan document, it belongs to both of you.

A prenuptial agreement can set out ahead of time who will retain certain items during the marriage and in the case of divorce, afterward. For example, you may want to state that investments you make are your own, whether you earn or lose money on them during the marriage.

Separate property

If you already have assets and debts before the marriage, those are your own unless they become commingled after the wedding. In your prenuptial contract, you can designate that those remain in your name.

This can preserve them for you in case of a divorce, but it can also serve another purpose. If you have children from another relationship, it can change the way that they inherit the assets. Community property will go to your spouse when you die, but your children may inherit a portion of an estate that is not community property.

Your prenuptial agreement may not be valid if you or your spouse insists on something a judge will say is unreasonable. You must also both be completely honest. And being reasonable and honest about your finances is a good start to your marital relationship.

There are a myriad of factors to consider when creating an estate plan. In addition to organizing your property and assets, you must consider who you would like to receive it once you pass. Furthermore, you may want to make the process as easy as possible for your loved ones.

A living trust is an essential component to an estate plan, as it offers several advantages to those who wish to organize their estate, beneficiaries and assets.

What is a living trust and how does it work?

A living trust is an entity that manages your assets and property for you, while you are living and once you pass. According to The Balance, the trustee manages your property and assets once you transfer ownership of your property and assets into the trust.

In a revocable trust, you stay in charge of those assets while you are alive. You can rearrange assets, change beneficiaries or redistribute property as you see fit. In an irrevocable trust, however, an appointed trustee manages your property, as you essentially transfer complete ownership over to the trust.

What are the benefits of a trust?

Unlike a last will and testament, living trusts do not have to go through the probate process. The probate process, which establishes validity and determines taxes, is not necessary as you relinquish ownership of the items once placed in the trust.

Other benefits of a living trust include the following:

  • Property and assets transfer directly to beneficiaries
  • Property and assets can stay in the family and do not run the risk of ending up with a beneficiary’s spouse or someone you did not intend to have your property
  • Privacy, as trusts are not a matter of public record

You can also organize your trust in a way where assets are paid out over a period of time or once a milestone is reached. For example, a child may receive their share once they become a certain age. You can also allocate the money to help a child pay for college.

While planning your estate, you put a lot of focus on taking care of your children in your absence. It may not feel right leaving them the same amount, but you do not know how to go about leaving them different inheritances.

Kiplinger offers advice on the matter. Understand how to do the right thing for your adult children and yourself.

When to leave unequal inheritance amounts

Common scenarios in which you may consider leaving your heirs different inheritances include when you have a child with special needs or physical disabilities that make it difficult to earn a living. If you often give one child more money than your other children, you may leave your other heirs a greater inheritance.

When to explain unequal inheritance amounts

Understandably, your children may grow upset upon learning about their staggered inheritance. Consider sitting your heirs down to tell them about your decision and why you made it. By not explaining your reasoning while alive, you risk your children growing upset when the time comes to read your will. Animosity and resentment could grow between your children. Even if your children do not agree with your decision, they at least know why you made it.

How to handle unequal inheritance amounts

In your golden years, one of your adult children may help take care of you. If so, you may pay that child like you would a caretaker or home health aide. That way, you have a reason for leaving her or him more than your other children.

It is OK to leave your heirs different asset amounts. What matters most is doing so in the fairest, most respectful way possible.

One of the benefits of estate planning is that certain assets may be able to bypass the process of probate. This allows heirs to receive their inheritance much sooner, and without as much headache.

Unfortunately, many people may not have estate planning documents set up, or even a will. If you find yourself in the latter situation, you may wonder what happens if you pass away without a will in place.

Dying without a will

According to FindLaw experts, if you die without a will in place it is called dying “intestate.” When this happens, the courts gather and distribute your assets according to your state’s laws on intestacy.

In these instances, there are very few assets that will avoid probate. Some life insurance policies may be payable directly to the beneficiary, but that is about it.

Intestacy succession

The courts pass down your assets in a very specific manner. One of the benefits of estate planning is that you can allocate your assets to whomever you want. If you die without an estate plan or a will, there is no guarantee that your assets will go to who you think they should.

Intestacy succession involves the following path:

  • If your spouse survives you and you do not have children, he or she will receive your entire net estate
  • If your spouse survives you and you do have children, your estate will see division between your spouse and your children
  • If you have neither a living spouse nor living children, your estate will pass to your parents
  • If none of the abovementioned relatives are living, your estate will see division amongst your siblings

It is essential to have an estate plan in place to ensure that your final wishes come to fruition.

Married couples automatically create a contractual relationship when they file their marriage license. Spouses, by default, agree to a state-imposed agreement that decides each individual’s rights, including property, in the event that the couple divorces. However, if you live unmarried with your long-term romantic partner, a nasty breakup or a death could lead to issues involving property and asset division.

A cohabitation agreement provides you with that contractual protection that married spouses have, but as a cohabiting couple.

1. You bought a home with your partner.

A cohabitation agreement can include terms that cover managing and selling your property if your relationship ends. Additionally, the contract can include how much each partner needs to contribute to the mortgage payments and other property expenses.

2. Your partner is the primary income-earner and you are the primary caretaker.

This relationship dynamic could mean that you put your own career building and income potential on hold. A sudden breakup could leave you in a tough financial situation until you find a job. A cohabitation agreement could mitigate this by including something like a spousal support arrangement or a lump sum payment.

3. You want to protect your significant assets.

In your cohabitation agreement, you can include ownership details for each asset acquired before and during your relationship. Also, the contract can specify what you wish to leave to your significant other in the event of your death.

Overall, if you live with a long-term romantic partner and your relationship resembles that of a married couple (i.e. you share bank accounts, have children together, co-own property) a cohabitation agreement may help you avoid serious difficulties in the event of an unfortunate breakup.