Wills play a crucial role in probate since they specify deceased estate owners’ wishes as to the distribution of their assets. However, it is not uncommon in probate cases for wills to go missing or for a deceased individual to not leave one at all. When these happen, courts proceed with probate following certain rules.
The default rule that will apply
In California, if a decedent did not leave a will or their will cannot be located, the probate court will follow the rules of intestate succession, wherein the court will distribute the deceased’s assets among their surviving family and relatives, following an order of hierarchy.
Typically, courts distribute assets among the surviving spouse and children first, if any. If the decedent had no spouse or children, the distribution goes further out in the family tree to parents, siblings and grandchildren.
Some properties do not follow intestacy laws
Note that some types of property, such as life insurance proceeds or retirement accounts, may not be subject to intestacy laws and probate. Instead, they will be distributed according to the beneficiary designations on those accounts.
If a will appears after probate starts
If a will appears after the probate process starts, the court may put a pause on the intestacy process and proceed under the terms of the will. However, it will depend on the facts and circumstances of each case.
Probate is truly a complex matter. Nonetheless, going through the process can be manageable with adequate research and reliable legal guidance.