Some assets get transferred at the time of your death simply by operation of law. For example, assets that you own with others as joint tenants automatically become theirs upon your death. Other assets are transferred by virtue of beneficiary designations that you've used on those assets. A prime example would be the beneficiary you've named to receive your retirement account upon your death.

The threat of probate is occasionally overstated. However, relying solely on using the joint tenant form of title or beneficiary designations may fail to accomplish the objective of avoiding probate. For example, without further action, when the last surviving joint tenant on a property dies, it will need to be probated.

Beneficiary designations on accounts generally have the benefit of permitting one to name one or more alternate beneficiaries in case the primary beneficiary dies. Therefore, there's generally some ability to plan for contingencies. That being said, the naming of alternate beneficiaries may not be adequate to cover all of the potentialities of how your asset may need to be transferred. For example, if all of the beneficiaries you've named on a retirement account pass away, that asset may need to be probated at the time of your death to allow your heirs at law to claim it (which, by the way, may not be what you want).

Usually clients are advised to name their revocable living trust as either the primary or secondary beneficiary of assets that utilize beneficiary designations. This may depend on the client's marital status and other circumstances. Naming a trust as the beneficiary of retirement accounts involves consideration of the minimum distribution rules, so it's important to consult with a qualified professional when making changes.

Who Gets Your Assets if You Die Without an Estate Plan?

Whether you like it or not, everybody in California needs an estate plan. If you've failed to prepare actual estate planning documents, then it means that you are relying on the body of California law to dictate who will receive your property. Here's an overview of how some of your assets will get distributed:

1. Joint Tenancy assets automatically pass to the other joint tenants when you pass away.
2. Community property with right of survivorship is a special way of owning assets available to married couples and registered domestic partners. When one of the spouses or partners passes away, the other one automatically becomes the owner.
3. Assets with beneficiary designations automatically go to the beneficiaries that you've named on those accounts. A couple of common examples include life insurance and retirement accounts.
4. Assets held in a trust get distributed based on the terms of the trust document.

Intestate Succession?

If you die owning assets that are not subject to immediate transfer when you pass away and you have no Will in place, those assets are distributed according to the laws of "intestate succession." Under this statutory framework, these assets get distributed to your "heirs" (this is the legal term for people who would inherit from you if you had no Will and is generally comprised of your closest family members).

Probate

With a few exceptions, assets that are subject to the laws of intestate succession generally have to be "probated." Probate is a court-supervised process to make sure that your debts are paid off and your assets get distributed to your heirs. It can be a very expensive and time consuming proposition. For many Californians, avoiding the arduous process of probate is their primary goal in preparing an estate plan.