Common Scenarios in California Probate Cases

In prior posts, I’ve gone over how to make a will in California as well as what happens to your stuff in the event you die without a will. The former is, hopefully, pretty useful. The latter is hopefully useful too, if only to give you something to avoid. Let’s suppose, however, that you’ve made a will. This post will briefly go over what will happen to that will in the event you do pass away. Or, if you want to think of it this way, this is the situation your friends, family, heirs, etc will have to deal with once you’re gone. Because it would be too easy otherwise, there are actually several scenarios that commonly occur in California. I’ll try my best to go over each of them and introduce the terms that apply to those situations. One thing to remember is that the goal will be to handle, take care of, or dispose of the deceased’s estate. The legal term for this is “administration”. The authority to administer a deceased’s estate arises from the issuance of “letters” under California Probate Code section 8400(a). Scenario #1 is where the deceased died without a will of any kind. This is called “intestacy” or “intestate succession” and, in a previous post, I went over how California handles that. The letters applicable to this situation are “Letters of Administration”. Scenario #2 is when the deceased person died with a will, the will names someone to administer the deceased’s estate, and the person is able and willing to serve. Such a person is called an executor if they are male and...

How to Make a Will in California

We’ve probably all seen a movie or TV show with a scene where someone is dying and trying to make a will. Usually, this involves the person saying a line like “I, John Smith, being of sound mind and body, do make this my last will and testament…” Hollywood artistic license plays a large part in what you see on TV and in the movies, but the question of how to make a will is a good one. A post of two ago, I went over what happens to your stuff if you die without a will. Human nature makes it difficult for most people to imagine themselves dying, but death happens to all of us. Making a will doesn’t mean you hope to die, but it does make it easier for your friends and family or whoever else has to deal with the aftermath of you passing away. Having a will also makes it more likely that the stuff you’ve worked hard for and accumulated over your life actually goes to the people that you want to get it. In the United States, the laws and procedures by which you make a will are determined by each state. In California, the process to make a will is described in California Probate Code Section 6110 which specifies the following requirements. The person making the will is called the “testator”. Writing a will is also unlike writing any other document because the person who knows the most about the document (i.e. the will) will be dead by the time any questions arise about what this phrase or that phrase in...

Long-Term and Short-Term Marriages in California

If you’re in California and either contemplating a divorce or just learning about them just in case, one important distinction to know is whether your marriage is “short-term” or “long-term”. As I’ll explain, it’s not a difficult distinction to keep straight, but it is important to know for at least two reasons: (1) different rules apply depending on which category your case is in, and (2) lawyers and judges will often use the words “short-term” and “long-term” very casually so it’s important to know what they mean. Simply put, a marriage is “short-term” is generally one that is less than 10 years in duration. Conversely, a marriage is generally “long-term” if it is 10 or more years in duration. See California Family Code section 4336(b). This 10-year mark is not set in stone, though. It is possible for a long-term marriage to be less than 10 years long and for a marriage longer than 10 years long to be considered short-term. As with many things in the law, it all depends on the situation. There are many areas in which this short versus long distinction is important. The most common one I see is when it comes to determining permanent spousal support under California Family Code section 4320, specifically section 4320(l). If your marriage is short-term, section 4320(l) can place a limit on the duration of permanent spousal support of half the length of the marriage. If your marriage is long-term, then this “half the length” limitation may not apply. As I said earlier, though, there is no way to say for sure whether your marriage is long or...

What if you die without a will? California Intestate Succession

A will and/or a trust is probably something that a lot of people hear that they should have. Most people probably don’t, however, because human nature is that way. In this blog post, I’m going to go over what happens if you die without any estate planning documents at all. Any one of us can, unfortunately, die all of a sudden so this post is likely not as theoretical as a lot of us would like to think. I’m going to talk specifically about California, but the concept I’ll go over (i.e. Intestate Succession) is not unique to California. Other states in the US recognize it also. As always, however, if you’re outside of California, you need to look up the particular rules for Intestate Succession in your state. In describing what happens to you if you die without a will or a trust, I’ll also illustrate one of the reasons why you should not wait to get divorced. Intestate Succession Intestate succession is the generic term for what happens if you die without a will or a trust. As a reminder, California has specific requirements that a will and a trust have to meet in order to be valid. If your will or trust doesn’t meet those requirements and you die, it’s like you didn’t have a will or trust at all. Intestate Succession is a set of rules that governs who gets your stuff when you die. If you leave a will or a trust, you can specify who you want (or don’t want, as the case may be) to get your stuff. You can leave things...