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What Will Happen If You Die in California Without A Will?

San Jose, CA |

My friend's husband passed away without a will. She left with a house in a range of $1.2M market price (owned as joint tenancy with her deceased husband), few joint bank accounts and few retirements accounts. They were married for about 25 years and all assets owned are common property. They have 1 son (minor) and no previous marriages, no brothers, sisters, etc. My friend's lawyer said that her house should go to probate and even joint bank accounts also are subjects to probate. From what I saw on the internet, it looks like neither house, no joint accounts should be probateable. Could you please help to clear the issue, if the house and/or joint bank accounts are probateable in California.

Attorney Answers 2

Posted

Property that passes by operation of law is not controlled by a will or the laws of intestate succession where there is no will. So joint tenancies, and retirement accounts, life insurance and annuties that are all controlled by the beneficiary named pass automatically to the joint tenant or the named beneficiary and are not subject to probate. All other assets that do not pass by operation of law pass under the laws of intestate succession under the laws of the state of where the decedent last resided. Since this is a CA estate, community property rules also may have an impact. You should be a true friend and get her to a good estates attorney. Two that regularly contribute to Avvo that you should check out would be Ms. Brewer and Miss Elizabeth Johnson.

Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net . For further tax advice check out his website is www.sjfpc.com . and his blog is >

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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Posted

Your friend needs a new lawyer.

I cannot imagine that a lawyer with even minimal competency would say that there needs to be a probate in this situation.

The only remotely plausible reason for a probate might be to have a judge rule that the real estate is "community property" rather than "joint tenancy" so that your friend could have some better income tax benefits ... and that can be accomplished with a "spousal property petition", which should cost a fraction of what a probate would cost (for example, $1.2MM house would result in a probate fee to the lawyer of approximately $25,000 while a spousal property petition should cost more like $2500 - or less).

My office is in Palo Alto. If your friend needs assistance, I would be happy to help.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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