When a resident of California dies without leaving a will, transferring that person’s property can be very complex. An overview of these complexities can often provide a convincing argument for drafting a will and preparing an estate plan directing the manner in which the decedent’s property should be allocated after death.
Basic methods of transfer
Some assets, by their very nature, do not require any direction form their owner to be legally transferred. Life insurance proceeds typically pass to a named beneficiary. Likewise, retirement accounts, pensions or annuities pass to the person who has already been named as a recipient upon the owner’s death. The balance in a joint bank account generally passes directly to the other joint owner. Some property, such as a family home, is owned in joint tenancy by the couple that owned it; at death, the property passes to the survivor upon filing an affidavit of survivorship and recording of a probate deed transferring the property to the survivor
If the asset was community property but the owners did not create a right of survivorship, a probate proceeding may be necessary to determine whether a person other than the decedent’s spouse has a right of survivorship.
Transferring property pursuant to a will
If the decedent left a will and named an executor, the executor is responsible for taking the necessary steps to commence a probate proceeding in order to obtain a court order transferring the property to a designated beneficiary. If the decedent did not direct how to dispose of an asset in a will, the executor may be able to sell the property out of the probate estate. The proceeds of such a sale would be deposited in the estate and distributed with the rest of the decedent’s assets. If any beneficiaries named in the will object to the proposed sale, a hearing in probate court may be required to demonstrate that the proposed sale will not adversely affect the property of the other beneficiaries.
Advantages of a will
The simplest way to transfer a person’s assets after death is a carefully drafted will that allows the executor to transfer the decedent’s assets without a probate proceeding. A consultation with a competent probate attorney can provide useful guidance in preparing such a will or in conveying property if the decedent left no will.
