Determination of Heirship Attorneys Serving Southern California

If your loved one has passed away without an estate plan in California, you might be confused about what happens next. In these situations, it’s completely natural to be concerned about how inheritance is determined. Keep this in mind: when someone passes away without a will or trust to designate how their assets should be distributed, the state uses what is called the rules of intestate succession to determine the beneficiaries.

Dying without an estate instrument such as a will or trust is called dying intestate, or dying without testament. The estate generally must still go through probate court proceedings, where the distribution of assets will be decided according to state law.

However, the estate doesn’t always have to go through probate. There are options for heirs to seek to prove their right to inherit the decedent’s assets. No matter what your situation may entail, it’s vital to reach out to an estate attorney and probate lawyer during this complex time. 

Bring your questions and concerns to our team at Bochnewich Law Offices. We are estate planning and probate attorneys who understand all the ins and outs of the California Family Code and Probate Code. We proudly serve clients in the counties of Los Angeles, Orange, San Diego, Riverside, San Bernardino, and the rest of Southern California. 

When Is an Affidavit of Heirship Necessary?

Suppose your loved one passed away with a will or trust in place. If the estate is valued at $184,500 or less, and probate has not been opened, heirs can file an affidavit of small estate to avoid probate. If this is done, then to prove your right to inherit, you must file an affidavit of heirship. You must also file a decree of determination of heirship. These documents are designed not only to prove you’re an heir but also to state which assets you are entitled to. 

When an affidavit of a small estate is filed—which can only be done once 40 days have passed since the death of the estate-holder and when no probate has begun—then it will be necessary to file an affidavit of heirship. This must be done in the Superior Court in the county where the decedent lived and where the other affidavit was filed. 

Filing an Affidavit of Small Estate

To determine the estate’s value and qualification for small estate administration, certain assets are exempted, so the value may actually be higher than $184,5000. Excluded assets are: 

• property held in a trust 

• cars, boats, and RVs 

• property held outside of California 

• property that passed directly to someone through co-ownership  

• life insurance or retirement benefits that passed to a named beneficiary 

• unpaid salaries up to a certain amount 

Proving Heirship

The affidavit of heirship requires that the person filing the document include the heir’s basic information along with a description of the property being claimed. Basic information includes your name, age, and the names and information of any other possible heirs if known. Though not required, it may also be useful to include a birth certificate or other document showing the relationship. 

In addition to the affidavit of heirship, you must also file a decree of determination of heirship with the court. If granted, the decree establishes the petitioner’s identity as an heir to the estate and that the petitioner’s claim to a particular asset is valid. After you’ve gone through all these hoops, the court may issue you a decree of heirship serving as legal proof that you are an heir to the decedent’s estate. 

What If Probate Has Already Begun?

Probate court proceedings for someone who died intestate are subject to the Probate Code and to the state’s Law of Intestate Succession. However, you may still need to prove your right to heirship by petitioning the probate court.  

The California Probate Code Section 11700 provides: “At any time after letters are first issued to a general personal representative and before an order for final distribution is made, the personal representative, or any person claiming to be a beneficiary or otherwise entitled to distribution of a share of the estate, may file a petition for a court determination of the persons entitled to distribution of the decedent’s estate.” 

In the above sentence, “personal representative” refers to the person named by the court to administer the estate during probate. 

It’s important to reach out to an experienced attorney at any stage in the legal process. Skilled legal counsel can inform you of your options and help you decide how to proceed. 
 

In California, Who Gets What?

Under intestate succession, California uses what could be termed a hierarchy of inheritance. For instance, if there is only a spouse or domestic partner and no children, that person inherits everything. If there are only children and no spouse, the children inherit everything. If there are no spouses or children, then the parents will inherit it all. If there are no spouses, children, or parents, then siblings become heirs. 

If there are a spouse and one child or grandchild, the spouse inherits all of the community property and one-half of the separate property. A spouse with two or more children still inherits all of the community property but only one-third of the separate property. The other two-thirds goes to the children. The list goes on to include other possible scenarios.