Even if a loved one passes away without making a will, the surviving family members usually still have to handle the probate process. This can leave families with a lot of questions.

So, here are a few tips that can help individuals through the California probate process when there is no will. 

Every possible beneficiary of the estate should understand these duties-not just the administrator. After all, it might be helpful if the appointed administrator can rely on family members for help. This can reduce the chances of conflict and help families manage the probate process more effectively.

As we discussed in the last post, the probate court will appoint someone to be the administrator of the estate. This person is usually a close family member of the loved one who passed away. Like an executor, this person must:

• Take an inventory of the estate: This can be much more difficult when a loved one passes away without a will. A will sometimes includes a list of property that guides an executor. In intestate succession, the administrator must create an inventory on their own by reviewing the decedent’s mail and personal records.
• Handle outstanding debts: Usually, the probate process provides for notifying potential creditors and allowing them the opportunity to submit a claim for payment against the estate. Some creditors, such as Medi-Cal, the Franchise Tax Board, have a higher priority than other creditors to have the debt paid by the estate. However, the appointed administrator should monitor these payments to ensure they are correct.
• Act in good faith: This is always essential in probate matters, but it is especially so in intestate succession. An administrator or representative should make decisions with integrity and fairness to all of the beneficiaries. In intestate succession, the probate court must be guided by the Probate Code in determining the ultimate distribution of the estate. Administrators cannot show more favor towards a particular beneficiary over another.

The probate court tries to be fair. But it can still be beneficial for families to have an experienced probate attorney on their side to help them protect their rights during intestate succession.

Communication is key

Sometimes, the rules of intestate succession can be difficult to understand. This, in addition to how the property is distributed, commonly results in disagreements which can lead to costly litigation. Even the closest family members can quickly become frustrated with each other and the situation.

Administering an estate without a will is not always easy. That is why it is critical for families to communicate with each other. When families are on the same page as a united front during the probate process, they can prevent disputes before they happen and work together to preserve their loved one’s legacy.

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When the famous artist Prince passed away in 2016, people everywhere mourned the loss of a great talent and celebrated his achievements and monumental music. Then, word quickly got out that he never made a will.

Passing away without a will can cause a significant amount of stress for surviving loved ones. For example, there are several issues over Prince’s estate that have yet to be resolved years after his death. Even if individuals do not have nearly as many assets as Prince did when he passed away, dying intestate can still lead to complex issues during probate.

A closer look at intestate succession

The legal term for dying without making a will is “intestate.”

One of the most common myths about intestate succession is the state will take an individual’s property and distribute it how they like. This is not true.

Dying intestate only means that an individual’s wishes are not taken into account. Instead, the probate court will follow California’s intestate succession laws to distribute the property. 

How do intestate succession laws distribute property?

California’s intestate succession laws essentially create an estate plan for an individual. These laws determine that:

• A surviving spouse will inherit all of the community property and a portion of the individual’s separate property
• Other close relatives can still inherit assets after the spouse, such as children, grandchildren or parents
• The court may appoint a close relative the responsibility of being the estate administrator, usually the surviving spouse or children
• Assets with specific beneficiaries, such as a trust or an IRA, will often go to those listed

Generally, the probate courts strive to distribute property as fairly as possible in intestate succession. 

But intestate succession can involve significant issues

However, as we discussed in a recent blog post, intestate succession can leave families facing complicated legal challenges in probate court. For example:

• There is an increased chance of conflicts or disputes between family members regarding the estate administration
• Beneficiaries might not inherit specific assets their loved one verbally promised to them, causing more conflicts between heirs
• Blended families face particular issues since the law might recognize an ex-spouse before adopted children, for example

Intestate succession laws might try to be fair to the surviving family members, but the lack of a will can put a lot of strain on a family after the loss of a loved one. However, it is possible to navigate complex intestate succession issues while protecting the memory of a loved one, which we will discuss in the next post.

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Raising a child with special needs can be a challenging, all-consuming, full-time job. It can also be highly rewarding, but parents know the demands often seem endless. It’s not uncommon for them to live almost in orbit of their children, patiently tending to their meals, homework, medications and activities.

Then, magically, when these children reach age 18, the kids become adults in the eyes of the law and gain a whole range of new legal privileges and responsibilities. As a parent, you may suddenly find yourself held at arm’s length.

You may lose access to your child’s confidential records, lose the power to make medical decisions and learn that your child is free to move out and get married. But you know your child won’t suddenly become any more capable just by growing one day older. Parents whose adult children will still need significant help and at the same time want to keep them independent may want to file for a limited conservatorship.

What is a limited conservatorship?

A parent may wish to file for a limited conservatorship over his or her now adult child to give him or her the legal right to help make certain decisions for their developmentally disabled adult. Your adult child becomes the limited conservatee (the subject of the conservatorship), and the parent that petitioned the court or another interested individual-may be granted the legal powers by the court (Letters of Limited Conservatorship) and appointed the limited conservator.

What powers does a limited conservatorship grant?

The court will consider your adult child’s case and grant the limited conservator only those specific decision-making powers it feels are appropriate and necessary. According to the Superior Court in Santa Clara County, depending on your adult child’s needs, you may be able to:

•· Decide where your child will live

•· Sign contracts for your child

•· Agree to medical treatment

•· Permit or prevent your child’s marriage

•· Review your child’s medical record and other confidential documents

•· Manage your child’s finances

•· Participate in educational and career decisions

•· Limit your child’s social and sexual relationships, such as filing a restraining order on your child’s behalf

•· Place your child in a state hospital or facility for the developmentally disabled

Can only parents become limited conservators?

Any adult can potentially become a limited conservator. It’s often a good idea to appoint multiple conservators (co-conservators, such as parents and other adult siblings). This can ensure your adult child will still have help should anything happen to you or, if for some reason, you have to resign.

How does someone become a limited conservator?

You’ll need to file multiple forms and attend a hearing. In addition, the Court will appoint a Court Appointed Counsel to represent your adult child in the proceedings and will also send a Court Investigator to investigate the suitability of requested powers and the proposed conservators. Further, your adult child’s Regional Center Service Coordinator will prepare a report on their recommendations regarding your adult child’s capability of handling specific adult decisions. You are not required to have a lawyer, but an experienced lawyer may help guide you through the more complicated parts of the process. A lawyer may also help you more successfully show the court why you need the legal powers you seek.

Does a limited conservatorship grant me control of my child‘s estate?

Most limited conservatorships are over the “person” and do not include powers of the “estate”. But you don’t necessarily need conservatorship of your child’s estate. If your child earns a wage or receives public aid and has no other assets, you don’t need conservatorship of the estate. You will likely want to pursue a limited conservatorship of your adult child’s estate if he or she has an inheritance or other assets that are not all held in a special needs trust.

Planning for a seamless transition

Parents with special needs children will be familiar with both routines and surprises. Your child’s eighteenth birthday shouldn’t come as a surprise, so you’ll want to prepare for his or her transition to legal adulthood well in advance. The application process can run long, and Santa Clara County suggests that parents should file at least three months in advance. Of course, you can file even earlier, and filing several months in advance can help ensure you’ll be there to help your 18-year-old every bit as much as you help your 17-year-old.

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Watching as loved ones struggle with their health can be a challenge. However, it can be dangerous when loved ones can no longer fulfill their basic needs. In these cases, it might be necessary for families to consider establishing a conservatorship to ensure their loved one gets the care they need.

California law favors family members to act as conservators on behalf of their loved ones, such as spouses or children. But regardless of who is chosen as a conservator, there are a few things they must consider to help them be a reliable conservator.

1. Planning is critical 

A conservatorship allows someone to make decisions on behalf of another and arrange their care if they cannot do so themselves. This position is not as easy as it sounds. In fact, it is often a stressful job that involves enormous responsibility. They must make decisions on behalf of their loved one regarding:

• Where they live and housekeeping issues
• Any health and personal care matters
• What medical treatment they should receive
• What they should eat
• How to manage their money
• How to provide them comfort and care

Conservators must make a plan for how they will carry out these decisions and care for the conservatee. Creating a detailed but flexible plan can help individuals prepare themselves for taking on their duties as a conservator. The Judicial Council of California also provides a handbook to assist conservators.

2. You must act in good faith

Many people have heard the phrase “acting in good faith,” but what does it mean?

In a conservatorship, it means:

• Respecting the conservatee and their needs
• Prioritizing the conservatee’s best interests
• Acting with the best intentions on their behalf

When conservators act in good faith, they carefully consider the conservatee’s needs and how they would approach the situation to make an informed decision. It is not easy to make a decision for someone else. But placing their best interests first can help conservators stay faithful to that individual’s needs.

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Being a caregiver can often feel like another full-time job. It is usually an unexpected duty that takes up most of your time and can leave you feeling incredibly stressed.

Of course, this does not overshadow the love you have for your elder who needs care, whether it is a parent or a grandparent. But there is no question that being a caregiver can be both exhausting and challenging.

Why is it so difficult to be a caregiver?

Becoming a caregiver can be overwhelming for several reasons, including:

• Many caregivers feel like they do not have control over their own life
• Meeting another’s needs can prevent them from meeting their own needs
• There is often a lot of information to keep track of for their loved one, including medical or financial information
• It is not easy to see a loved one struggling with deteriorating health

All of this on top of providing care can cause considerable physical, mental and emotional stress. And that can quickly cause caregivers to experience burnout.

Caregiver burnout is all too common

Burnout can take many forms, including:

• Anxiety and depression
• Physical health problems, such as high blood pressure
• Feeling tired, even after sleeping or resting

The Mayo Clinic advises individuals to seek help and perhaps even connect with other caregivers. This might help caregivers relieve some of their stress and regain focus, but it might not make their job any easier. 

However, technology could facilitate a caregiver’s job

It is a reality for many individuals that they do not–or cannot–live with their loved one who needs care. And this can make being a caregiver even more challenging and stressful than it already is.

Technology might be the answer to help make remote caregiving an easier option.

The American Association of Retired Persons (AARP) reported that specific apps or software can help caregivers monitor their loved one, even when they cannot be there with them. For example, there are sensors that tell the caregiver who is at the door, or when their loved one is out of bed. GPS monitors can also help caregivers know where their loved one is, especially if they are prone to wander.

Of course, elderly loved ones might not take kindly to technological monitoring. It would be essential to explain the benefits the technology could provide and obtain their consent. But in the long run, it could help make a caregiver’s responsibilities significantly easier.

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The availability of information and software on the internet has led many people to attempt do-it-yourself (DIY) solutions even with potentially complex matters such as making an estate plan.

Though this might save some time and money in the short term, it can also lead to significant challenges with probate and estate administration.

A proper estate plan often involves many details

Many people might consider creating a DIY will, especially if they have very simple wishes. However, estate planning nowadays is rarely simple.

Individuals should cover several details during the estate planning process, including:

• Who will receive what assets?
• Who is in charge of administering the estate?
• Who should speak as a representative of the individual, if the individual becomes incapacitated?
• What powers or authority should those in charge of an estate have?

Unfortunately, if individuals do not correctly address these details, then the estate administration might not go as planned. And according to Forbes, it is common for DIY wills to exclude essential details or documents from their programs.

The biggest challenge? Estate administration

Whoever creates a DIY will might save themselves some time and money. However, creating the will is not usually the issue.

The main problem that families run into with DIY wills often occurs in the estate administration. There could be several issues, including:

• The DIY will might not be valid under California law
• In the absence of a valid will, the probate court could appoint someone the decedent would not want to handle their affairs.
• Or, the DIY will might not have the proper protections in place to help the family navigate the probate process effectively

So, a DIY will might work for the individual who creates the will. But that individual’s loved ones might run into complex and often costly issues after they are gone.

In short, there are significant risks involved in creating a DIY will because of potential unintended consequences. It can make probate and estate administration much more difficult.

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If you’re like most people who take the time to create a will, you want to arrange for your family’s support even after you’re gone. You may also want to spare them from a lengthy probate and soften the blow of your departure. However, if you’re not careful, your will could become a minefield.

According to Forbes, in nearly 70% of all affluent families, the death of a patriarch or matriarch leads to lost wealth and fractured relationships. The issue of inheritance can rekindle old rivalries. Children may expect more money or assign greater value to certain keepsakes than their parents would expect. When these disagreements lead to legal battles, they can drain money out of the estate and wreck relationships. But there are steps parents can take to prevent these problems.

Five ways to make sure your will works for everyone

The best way to prevent future inheritance battles is to make sure everyone understands the picture ahead of time. This means both knowing what’s going to happen and reaching a place of emotional understanding–in other words, feeling that the decisions are fair. To help you and your family reach this level of understanding, AARP recommends you take five key steps:

• Communicate your plans for the estate. Getting everyone together for a family meeting allows you to introduce your plans and make sure everyone knows why you’ve made the decisions you have. You don’t need to invite feedback, but the meeting allows you to respond to your children’s questions. It’s possible you may have forgotten something that matters to them, even though you didn’t think it important. Addressing that issue in a meeting can keep it from blowing up into a future battle.
• Divide your estate equally. Leaving more to children who you feel need more help or who cared for you may leave the others feeling spurned. It invites conflict. As AARP reminds us, inheritance isn’t just about money; it’s also about psychology. Any favoritism shown toward one child or another in the will can lead to a long-lasting sense of resentment.
• Think carefully about your choice of executor. The role of executor demands an organized, disciplined mind and a keen attention to detail. The executor needs to do a lot of work, and though few people really want to do the work, many feel honored to take the title. If you choose to name one of your children executor, you may want to explain why that child is the best choice. You can explain this in your family meeting or in the will. You may even want to set aside a fee for the work.
• Address all the important keepsakes. Most people remember to address the big, expensive items like houses, vehicles and investment portfolios, but these aren’t the only things people care about. Sometimes, the biggest fights can erupt from squabbles over much littler items. Family jewels, engagement rings, artwork and other unique items may carry tremendous emotional value even if their material value is rather limited. You want to make sure you have a plan for these items and that it’s clear and fair.
• Account for the gifts and loans you give your adult children. It’s generally best to treat your children equally in your will, but some may need more help than others while you’re around. If you invest in your child’s business or help keep them afloat through hard times, you should be clear whether you’re offering a gift or a loan. You can then track the amount of that loan or gift in your will. Doing so can help your children understand how you balanced their needs over time.

Better preparation for your future can also help your present

When you bring your family together, share your plan and get everyone on the same page, you can relax. Your children will understand your plan, and they might even feel closer. They’ll no longer have questions of money leading them in different directions.

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Not many people can imagine that someone would manipulate their elderly loved ones. However, it is a sad reality that some people will use others for their personal gain, including with respect to the creation of various estate planning documents including deeds, powers of attorney or a will. 

In California, individuals can contest a will if they believe their loved one was under undue influence while creating it. However, it is important for individuals to know the signs of undue influence so they can protect their loved ones, prevent undue influence in the first place or, if necessary, effectively contest a will.

Here are some of the common warning signs of undue influence:

1. The individual is isolated 

The person exercising undue influence often isolates the vulnerable individual. This usually allows them to maintain control over that person. Isolation can manifest itself in many ways, including:

• The influencer is always present at the individual’s home and rarely leaves their side to monitor all communication;
• The individual stops answering their phone or their phone number is changed, or you hear the influencer prompting your loved one what to say;
• The influencer reviews and controls the individual’s incoming mail;
• The influencer altogether terminates contact between the individual and their loved ones;
• The influencer insists on attending all appointments; or
• The individual stops attending church, family, or other community gatherings they have historically attended.

2. Your loved one increasingly relies on one person

As we get older, it is common to depend on others more. And it is especially common for individuals to rely primarily on one person, such as a spouse, child or sibling. This kind of dependence is normal.

However, in a case of undue influence, the individual often has no choice but to rely on the influencer. That is because the influencer manipulates the situation, so they often have control over the loved one’s:

• Finances and estate planning matters
• Mail and access to information
• Property or assets
• Medication and appointment scheduling
• Transportation
• Daily needs and life

Total reliance is often what fuels the power of the undue influence. 

3. Last-minute changes to the will show favor to that one person

Another common sign of undue influence is if a loved one:

• Starts showering one person with gifts;
• Begins putting that person’s needs ahead of their own needs; 
• Changes lawyers they’ve had for many years; or
• They make changes to their will, trust dcouments, or powers of attorney that are all in that person’s favor.

It is essential to update an estate plan regularly. However, families should be suspicious of sudden changes to their loved one’s will that show a considerable preference.

It is critical for California families to remember that undue influence can take many forms. These three signs might be some of the most common, but they are not the only ones. Contesting a will on the grounds of undue influence is possible, but families should be on the lookout for these signs long before the probate process begins to protect their loved ones.

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Including an animal companion in an estate plan might seem like something reserved for celebrities. However, that is not the case at all. As much as we think of our pets as members of our family, not many people think to plan for their pet’s future.

While individuals can include their pets in their will, they can also ensure that their pets receive the care they need with a pet trust.

What is a pet trust?

According to NBC News, nearly 500,000 pets end up in animal shelters when the people taking care of them pass away or are unable to care for them any longer. Some might be adopted, but there is no way to make sure of that.

Creating a pet trust can help protect pets from the shelter. A pet trust is just like any other trust someone might include in their estate plan. It is a legal document that:

• Chooses someone to care for the pets in the owner’s absence
• Outlines specific care instructions for the pet
• Provides finances to cover any pet expenses, including:
  • Visits to the veterinarian
  • Costs of food and toys
  • Other services, such as grooming

This trust allows pet owners to choose the best possible caregiver for their pets—aside from themselves—and provide the finances to meet the pet’s needs.

What to consider when making a pet trust

There are a few things to take into account to create an effective and realistic pet trust. People can be as specific and detailed as they wish to ensure their pets receive quality love and care. Therefore, it is often helpful to include:

• The pet’s accustomed care
• Any special directions or needs
• The pet’s standard of living
• The life expectancy of the pet
• End-of-life instructions for the pet

Under California law, the pet trust terminates when the pet passes away. So, it is also essential for individuals to consider how they wish to use any leftover finances in the trust. 

When California families care for their pets as if they are a part of the family, then it is just as important to have a plan for them as it is for any other loved one. A pet trust is one way to protect the pet’s future, even when the future is uncertain.

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One of the challenges for estate administrators here in California is dealing with people illegally occupying the decedent’s property. Sometimes, the individuals may be strangers — squatters — who assumed illegal possession of the property after the homeowner died.

But other situations might involve relatives of the decedent who refuse to vacate the premises after the death of the homeowner. Perhaps they lived there during the homeowner’s lifetime and were their caregiver during their final illness. This might give them a sense of entitlement that they can continue to live there indefinitely.

A delicate situation

If the latter situation is occurring and you are the estate administrator, you might find yourself in the untenable position of having to initiate eviction proceedings against one of your own relatives.

But regardless of any familial ties, your first and foremost responsibility must be to administer the estate to the best of your ability. Below are some suggestions for those needing to evict someone from the home due to adverse possession of the property.

Abide by the law

You need to make sure that at all times you follow the letter of the law in your dealings with squatters. Don’t get dragged into screaming confrontations or moved by crocodile tears. You have a responsibility to uphold the decedent’s wishes regarding the administration of their estate. That must remain your focus during all interactions.

Are they squatters or trespassers?

In situations where those occupying the property gained access illegally, e.g., by breaking a window or door lock, they are considered trespassers and can be arrested. Your first order of business should be to call the police to have them removed and arrested.

What does the law say about squatters?

Here in California, squatters must first be served with a three-day notice to vacate the premises. You cannot file for an unlawful detainer unless this has been done.

To get rid of squatters who refuse to leave after those three days, you must then file an unlawful detainer petition with the local court and pay the fee to get them served with a copy of it.

The squatter then must respond with their answer to your petition in which they defend their position as lawful occupants of the property.

What if they do nothing?

That’s the best-case scenario, because you will then get a default judgment stating that as administrator of the decedent’s estate, you shall regain possession of the property.

Should the squatter answer your petition and show up for the hearing, they will have an opportunity to present their side of the case before the judge. At the conclusion of the hearing, the judge will render a decision based on the evidence presented to the court.

I won my case. Now what?

The local sheriff’s office in the jurisdiction of the property in question will need to be provided with a copy of the judgment. There is a fee for them to go past a five-day vacancy notice. Should the squatters ignore that notice, sheriff’s deputies will remove them using force and you can then change the locks.

It’s often helpful to consult a California estate administration attorney to help you with the process of evicting squatters from property owned by the estate for which you are the administrator.

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