If a person dies without a will or a trust, their real and personal property passes through a process known as intestate succession. Intestate succession provides a distribution to the living heirs of the decedent pursuant to the statute in the state where the decedent was a resident when s/he passed away. If the descendant left real property in another state, the intestate succession laws of that state will govern the disposition of that property.
When someone dies without a will, the estate will still have to go through a legal process. This will require filing the proper pleadings with the court in the appropriate jurisdiction. Instead of appointing an executor of the will, the court will appoint an administrator of the estate. Similar to an executor, an administrator has a fiduciary duty to act in the best interest of the estate.
The process for intestate succession follows almost exactly the same process as a probate. Depending on the estimated value of the estate, there may need to be a notice to creditors, an inventory and appraisement of value, as well as many other formalities to process the estate so that it can be properly distributed to the rightful heirs.
If you need assistance gaining legal clarity for an intestate succession, please feel free to call the attorneys at Incline Law Group.
As an attorney, people often ask me what to do if a relative who had a Last Will and Testament passes away, but leaves property in more than one state.
Based on our geographic area in Lake Tahoe, it is very common for our clients and their relatives to have property in both California and Nevada. In cases such as these, there will usually need to be two separate probates completed. The first probate is done in the state where the decedent resided at the time of death. In this initial probate, all of the real property in that state, as well as all personal property located in any state will be probated. If there is real property in another state, a second “ancillary” probate is processed. Ancillary probates are similar to an ordinary probate but they do have some intricacies. Many times, there is only one piece of real property in another state. Depending on the value of that real property, this may allow for a shorter, more expedited ancillary probate than would otherwise be available.
Many prefer to substantially complete the probate in the home state before starting the ancillary probates. However, ancillary probates may be done concurrently with the home state probate in order to expedite the distribution of the entire estate of the decedent. As with an ordinary probate, ancillary probates are required to transfer title to any real property in any state that is not the home state of the decedent.
The attorneys at Incline Law Group are licensed in both Nevada and California and can assist with a home state or ancillary probate.
Probate is the legal process whereby a will is “proved” in a court and accepted as a valid public document that is the true last testament of the deceased. The probate process varies by state and by the size of the estate of the deceased person. In both California and Nevada, there are specific laws and defined processes for the appointment of an executor of the will and the distribution of assets to heirs. The executor is the person who handles the affairs of the estate throughout the probate process and who ultimately distributes the property according to the terms of the will.
An attorney is not required in a probate proceeding. However, an attorney can certainly be beneficial to an executor, especially in more complex probates. It is important that certain steps be taken in a particular order to comply with the various probate statutes. An attorney can help navigate this process which may save the estate money. Since the executor of an estate is considered a fiduciary, the executor may become liable to the beneficiaries if s/he attempts to probate the will of his/her own and ends up doing so improperly or spending extra money on steps that did not need to be taken.
The attorneys at Incline Law Group are available to assist you with probate proceedings for estates of all sizes.