The probate code is a collection of laws on all issues related to wills and estates. There is a Uniform Probate Code which was created for the purpose of simplifying the probate process and standardizing the laws regarding wills, trusts, and intestacy. The Uniform Probate Code also addresses gifts, as well. Because the probate code is an important part of estate planning, any probate lawyer you work with must understand how those laws could affect your estate.
Why is a standardized set of laws a good idea?
Federal and state governments have the authority to enact their own laws regarding probate, as long as those laws conform to the mandates of the U.S. Constitution. Essentially that means, the state and federal probate laws do not have to be the same. When the Uniform Probate Code was first drafted, the goal was for all 50 states to adopt its mandates. However, when the original version was first enacted in 1969, only a few states adopted the Uniform Probate Code in its entirety. California has not adopted the UPC but many of the California Probate Code’s sections were modeled on UPC provisions. Still there are substantial differences in each state’s laws.
What do probate proceedings involve?
“Probate” is the legal process in which the assets and debts of the deceased are handled by the court. Your estate is distributed to your heirs after your creditors have been paid. The probate process is supervised entirely by the probate court and involves all components of estate administration.
California’s Laws of Intestate Succession
One reason a probate lawyer needs to know about the probate code is to understand the laws of intestate succession. These laws determine who gets what if you die without a will. In general terms, if you die without a will in California, your assets will go to your closest relatives.
If you die with surviving children, but no spouse, parents or siblings, your children will inherit everything in your estate. If you die with a surviving spouse, but no children, parents or siblings, then your spouse inherits everything. Your parents are next in line, meaning, if you have no surviving spouse, children or siblings, they will inherit. The same is true, if only siblings survive you.
If you leave a spouse and children behind, your spouse inherits all of your community property and one-half or one-third of your separate property. Your children inherit one-half or two-thirds of your separate property.
If your spouse survives you, but you have no children, and your parents are still alive, your spouse inherits all of your community property and one-half of your separate property; while your parents inherit the remaining half of your separate property. The same division would apply if only your spouse and siblings survive you. There are a few caveats to the intestate succession laws.
The Spouse’s Share of your estate
In California, if you are married and you die without a will, the share your spouse receives, depends on whether you owned your property as separate property or community property. Community property is the property that is acquired while a couple is married. On the other hand, separate property is the property each individual acquired before marriage. There are two exceptions: gifts and inheritances which are given to one spouse are considered separate property, even if acquired during the marriage.
If you and your spouse are not divorced, but legally separated, at the time of your death, you your spouse will not be entitled to any of your property. In California, the rules for married couples also apply to registered domestic partners.
Children’s shares of a parent’s estate
The size of each child’s intestate share of your estate depends on how many children survive you, and whether or not you have a surviving spouse. In order for children to inherit, in California, they must be legal children, which includes biological children, adopted children, and children conceived by you, but not born before your death (posthumous children).
Foster children and stepchildren, whom you did not legally adopt, do not automatically receive a share. However, a foster child or stepchild can inherit if he or she can prove that your relationship began while the child was a minor and continued throughout your lifetimes, and you would have adopted the child if it had been legally possible.
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If you have questions regarding probate or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
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