Many California families assume that if they pass away without a will or trust, their loved ones will automatically “figure things out.” In reality, dying without an estate plan—known legally as dying intestate—triggers a costly and time-consuming process that often leaves families frustrated and financially strained.
In this episode of Estate Planning Beyond the Binder, Brian Chew, Managing Partner at OC Wills and Trusts, explains how intestate succession works in California, what probate really costs, and why relying on state law is rarely the best option for families.
What does it mean to die intestate in California?
When someone dies without a will or trust, California’s intestate succession laws decide who inherits their assets. The “default” order begins with a surviving spouse, then children or grandchildren, and if none exist, assets pass upward to parents, siblings, nieces, nephews, aunts, uncles, and cousins.
While this may sound straightforward, intestate cases almost always require probate—a court-supervised process to determine who is in charge of the estate and how assets will be distributed. Even in simple cases where there is no dispute, probate can last one to two years and cost families tens of thousands of dollars in legal fees.
Why is probate in California so expensive?
Probate fees in California are based on the gross value of the estate, not the net equity. This means a $1 million home with an $800,000 mortgage is still subject to probate fees on the full $1 million. Families can easily lose $20,000–$25,000 or more in probate expenses—money that could have gone directly to heirs.
In addition to fees, selling a home through probate often reduces its market value. Extra court procedures and restrictions discourage potential buyers, which means families may walk away with less than they would have through a standard sale.
What delays do families face during probate?
One of the biggest surprises about probate is how little actually happens in court. Most cases are uncontested, with no arguments or disputes. Yet because of the court’s backlog, it still takes one to two years before money is released to heirs.
This delay leaves families struggling with financial uncertainty. Even when a home is sold, funds remain tied up in the probate process until the case closes.
Does the state of California take your property if you don’t have a will?
A common misconception is that the state automatically takes your assets if you don’t have a will. Brian Chew clarifies that while unclaimed assets are eventually turned over to the state, they remain recoverable. For example, dormant bank accounts may be transferred to the California Unclaimed Property Office, but rightful heirs can file a claim to recover the funds.
The state doesn’t keep your property for itself—it simply holds it until someone comes forward. However, this process can create confusion and delays for families.
Why doesn’t a will alone avoid probate in California?
Many people believe that having a simple will will keep their estate out of probate. In California, that’s not the case. A will must be filed in court and probated before an executor gains authority to manage assets.
A living trust, on the other hand, allows assets to be transferred directly to beneficiaries without court involvement, avoiding probate entirely if properly funded. This distinction is critical for families who want to save time, money, and stress.
What are the risks of using online estate planning documents?
Online platforms like LegalZoom can generate wills or trusts, but they often fail in practice because they don’t ensure the trust is funded. An unfunded trust—one that isn’t connected to actual assets like real estate or financial accounts—offers little protection.
According to Brian Chew, estate planning is not just about filling out forms; it’s about execution and follow-through. Families need guidance, accountability, and legal advice to ensure their plan actually works when it’s needed.
What is the first step toward building a strong estate plan?
Brian Chew explains that estate planning is simpler than most people think. The foundation rests on three questions:
- Who do you love?
- Who do you trust?
- How much do you trust them?
Answering these questions provides most of the direction an attorney needs to design a customized plan. While asset details matter, clarity about relationships and decision-makers is far more important.
At its core, estate planning isn’t about documents—it’s about love and responsibility. Families create estate plans to make life easier for their loved ones, reduce conflict, and ensure their wishes are honored.
Why is “nothing” the most expensive plan of all?
Dying without an estate plan may seem acceptable to those who think state law will cover the basics. In reality, intestate succession leads to long delays, costly probate fees, and added stress for surviving family members.
As Brian Chew emphasizes, something is always better than nothing. Even a basic plan can save families money, time, and heartache. Estate planning is ultimately an act of care—making things easier for the people you love most.
