Too Much Trouble To Get A Will?

The couple had a modest house in one of California's rural counties, and the value of the house was $165,000 at the time the husband died. It was a second marriage for the couple, and they were living in husband's house from his first marriage, which ended when his first wife died. The deed was in his name only, and the couple had no community property agreement. Husband had two children from his first marriage. Husband had no will.

Question: Who gets the house when Husband dies?

Answer: Everybody gets the house, but they won't get it until the probate is completed.

Why? Because California intestacy law provides that when a decedent's estate includes separate property, the separate property is split between the spouse and the children. In this case, the spouse gets one-third of the house, and the children get two-thirds. Because the children's share is greater than $100,000, a probate will be needed. It could take upwards of a year and $7,000, including court costs, to complete the probate.

How could this have been avoided? Assuming that the decedent wanted his spouse to have the entire house after he died, he could have accomplished this with a simple will that gave everything to his wife. She would have used a spousal property petition, instead of a full probate, to take title to the house. No probate, no need to share the house with the children.

But, assuming that the decedent wanted the children to take part of his estate and still avoid probate, he could have created a living trust and put the house in it. There would be some trust administration fees, but no probate.

The decedent had a choice: Do nothing and cause a problem down the road, or do something now and avoid future problems. The difference can be summarized as being remembered as "Dear Old Dad", or "that blankity-blank idiot."