This post explains the options for the post-death transfer of California real property by either planning or letting California’s laws take their course. Examples of planning are trusts, joint ownership, lifetime transfers, and revocable transfer on death deeds. No planning relies on the rules of intestacy and probate administration.
Intestacy law identifies who is the next of kin. The surviving spouse is the default next of kin. If there is no surviving spouse, then the children of the deceased inherit. Then, if there is no spouse or children, parents inherit. Brothers and sisters are next to inherit. The intestacy laws follow what most people would do if they planned.
No Plan or a Partial Plan
You are not required to plan for the post-death transfer of your real property. However, an unplanned transfer occurs under the administrative rule of the probate court. The probate court has legal filings and hearings, which are time-consuming and expensive. However, these are fine for the decedent but are problems for the decedent’s heirs.
Planning is needed if an owner of real property is concerned about who will inherit the real property or the cost and time of probate. However, only some plans are complete. For example, a will is a partial plan. It does state who will inherit. But a will does not avoid probate administration.
Joint ownership of real property and transfer on death deeds can be complete plans. But the intended heir must not predecease the owner. If the intended heir predeceases, joint ownership and a transfer on death deed are the same as no plan.
Complete Plans
A gift is a complete plan. But a gift is the abdication of any responsibility and the surrender of control of the real property. Lifetime gifts also have unfavorable tax consequences compared to post-death transfers of real property.
A complete plan is a trust. A trust identifies heirs, avoids probate, and provides for contingencies if plan A does not come through. A trust does not have unfavorable tax consequences and can be changed.
In Summary
An owner of real property has two options for the post-death transfer of real property. Either plan or let the probate laws of California take their course. Planning has many forms; trusts, joint ownership, lifetime transfers, and revocable transfer on death deeds. No planning involves the laws of intestacy and probate administration.
Mark W. Bidwell, a California attorney, authored this post. He can be contacted at 714-846-2888 or by email at Mark@DeedandRecord.com.