Frequently Asked Questions about Probate

How long does probate take

It depends.  Family conflict is one thing that can drag a probate out.  If everyone is "on the same team" everything proceeds more smoothly and efficiently-- as quickly as 6-7 months.

Is probate always necessary?

No.  Living trusts can (but do not always) eliminate the need for probate.  Certain forms of property in "joint ownership" pass automatically at death, as do certain trusts and bank accounts which are designed to convey property at the moment of death without court confirmation.  Beneficiaries of certain insurance policies and retirement plans also receive the policy benefit outside the probate process.  However, officially transferring the property may require some paperwork and/or presentation of a death certificate.

My relative died without a will- what does this mean for me?

Outside of the exceptions mentioned above, property proceeds by way of "intestate succession".    This is governed by the California Probate Code.

A very typical situation is where someone leaves behind a spouse and children.  Generally (although there are exceptions), the spouse will inherit the community property, and the separate property is split between the spouse and the children.   If there is only one child, the spouse gets 1/2 of separate property and the child gets 1/2 of separate property.  If there is more than one child the spouse gets 1/3 of separate property, and the children evenly divide the remaining 2/3. 

Another typical situation is where someone leaves behind only children.  Generally (although not without exception), the children typically are able to evenly split the estate.

There are many exceptions to these generalizations however, and I encourage you to call me for a free consultation.  For example, registered domestic partners are treated as spouses for the purpose of intestate succession.  And grandchildren of the deceased person are entitled to their parent's share if their parent happened to die first. 

Attorney & Counselor at Law
717 K Street, Suite 500A
Sacramento, California 95814