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Frequently Asked Questions about Estate Planning

What happens if I do not have an estate plan?


If you do not have any estate planning then your family will most likely need to probate most of your estate. Probate is the legal process in which the state gathers your assets, pays any creditors, and distributes any remaining assets based on the laws of California.  Probate often is expensive, complicated and time-consuming process.  If you do not have an estate plan, then you die intestate, and your assets are distributed under the rules of Intestate Succession.  This is the default distribution scheme by which the recipients of your probate estate are chosen.  Certain types of assets avoid probate on their own, and they are called “will substitutes.”  Most retirement plans and insurance policies wherein you designate a beneficiary as part of the plan/policy pass directly to that beneficiary.  Typically a beneficiary simply submits a claim form along with a death certificate and the company sends the beneficiary a check.


Another will substitute is real property that is held in joint tenancy or as community property with right of survivorship.  If real property is owned this way, the surviving owner simply files an affidavit of death with the county recorder and a new deed perfecting title in their name.


An often overlooked will substitute is for any financial account, be it a simple checking account to an entire investment portfolio.  With any financial account you can designate what is called a pay-on-death (POD) or transfer-on-death (TOD) beneficiary.  This generally does not cost you anything to do and something you do yourself at your financial institution.  Unlike a joint account in which both parties have access during their lifetime, a POD or TOD does not give anyone access while you are alive, but enables the direct transfer of whatever money is in the account on your death.


A final type of will substitute is an inter-vivos trust, sometimes called living trusts.  These are discussed in detail in other questions, but share the common feature of all will substitutes in that they avoid probate, which means no court, no legal fees and no waiting.