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

Asked about 3 years ago - 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)

  1. Janet Lee Brewer

    Pro

    Contributor Level 17

    Answered . 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.

  2. Steven J. Fromm

    Contributor Level 20

    Answered . 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... more

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