Huntington Beach, California Attorney, Mark W. Bidwell

Intestacy 

Who inherits real property if there is no will or trust? Without a will or trust the intestacy laws of California intervene. Intestacy law identify who is the next of kin to inherit.

The surviving spouse is the default next of kin. If there is no surviving spouse, then the children of the deceased inherit. If there is no spouse or children, parents inherit and if no parents survive, brothers and sisters inherit. But this fairly straight forward order is complicated by California’s community property laws or the death of a person who is in a class of heirs, such as children.

The closet surviving next of kin creates a class of heirs. For example, the deceased has three children, two living and one deceased. Because there are living children, identification of heirs stops at the “class of children.” The deceased child’s own children, (grandchildren) become heirs and are part owners of the real property.  

The other complication is the distinction between community property and separate property. California is a community property state. Community property is property acquired during the marriage. Each spouse owns one-half. The default is on death of one spouse, the other inherits and becomes the sole owner.

Separate property complicates inheritance. Separate property is acquired either prior to the marriage, by inheritance or by gift. Separate property owned by a deceased spouse does not by default go only to the surviving spouse. For example, if the deceased had children, they inherit a portion of the real property. So, both the surviving spouse and the children become owners of the property.

If the deceased did not have a will or trust for the transfer of real property, the intestacy laws of California intervene. The laws of intestacy identify who is the next of kin to inherit. Who is the next of kin is complicated if the real property is separate property or a next of kin has died with surviving children.

How to Sell or Transfer Real Property Owned by the Decedent

The first issue is where to file. "Probate" is a court and part of the California code. Probate Court jurisdiction is by County where the decedent lived or owned real property. For example, if the decedent lived in Orange County, Orange County is the proper county for proceedings. If the decedent lived in another state but owned real estate in Orange County, Orange County is the proper County for filing a petition. 

A petition to the Superior Court is needed to begin the process to sell or transfer the home of the decedent. At time of filing of the petition the probate the court must provide a hearing date within 45 days. 15 days before the hearing date three publications in a newspaper are required. All heirs and persons named in the will must be served by mail at least 15 days before the hearing. Publication and service by mail must be without error. in Orange County any error could delay the hearing by up to six months.

At the hearing the court will appoint the personal representative to administer the estate. Key to fast tracking the real property sale is obtaining authority under the Independent Administration of Estates Act. A personal representative who has been granted authority under the Act is allowed to sell the real estate with minimal court supervision and can move quickly.

The personal representative must keep the probate estate open for a minimum of four months to allow creditors time to present their claims. At the end of four months the personal representative may file a second petition to close the estate and distribute the proceeds to heirs. Orange County and Los Angeles County are booked and a hearing date could be out as far as four to seven months.

Assuming everything goes well and all documents and actions are timed perfectly, a probate case can be completed in seven months.  Add any minor problem or complication and a minimum of additional two months are needed. A good rule of thumb is the probate process will take one year.

Mark W. Bidwell has practiced law in Orange County, California for 20 years. Prior to practicing law, Mr. Bidwell was a Certified Public Accountant (CPA).  Mr. Bidwell serves on the Board of Directors for the Newport Harbor Bar Association and California Society of CPAs Estate Planning Committee. Office is at 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649.