When you write your will, you likely expect everyone you name as a beneficiary to out-live you. However, this does not always happen. If one of your intended heirs passes away before you, you may need to alter your estate plan to keep your assets safe from California’s intestacy laws. 

California Probate Lawyer Kavesh Minor & Otis

Intestacy in California

California’s probate courts want everyone to avoid intestacy. In estate law, intestacy refers to an estate which was not protected by a will, trust, or other legal document. If you die without a will or a trust, you are said to have to have died “intestate.” When you die intestate, a judge will disburse your assets according to a special legal formula. This formula favors close relatives and pays no heed to what you might have wanted.

Intestacy laws may or may not come into play if your heir dies before you do. In most cases, your estate will be divided according to another legal formula.

Avoiding Intestacy With Alternative Heirs

One of the most common workarounds is also among the simplest: naming an alternative beneficiary.

If one of your heirs dies before you do, their gift may be considered void. But you can alter your will, or trust conditions, to accommodate a new heir. Depending on who and how your will was written, you may need to meet certain requirements for your altered will to remain valid.

You should always contact an estate planning attorney before revising your existing plan. Aside from altering your will, you may need to take a second look at your beneficiary designations and insurance policies.

If you do not name an alternative heir, the court will try to find a suitable replacement through the anti-lapse statute and residuary clauses.

The Anti-Lapse Statute

If you forgot to name an alternative heir, the court will still try to resolve your will before moving to probate.

California, like most other states, has what is known as an “anti-lapse statute.” Under this statute, the gift intended for a deceased beneficiary may pass on to the “issue of the deceased transferee.” In other words, if the deceased beneficiary had any children, the inheritance will be disbursed to them.

However, the anti-lapse statute has two very important qualifiers:

  • A gift can only be passed on to a person related to or a “kindred” of the intended beneficiary. If they do not have children, or a spouse, the anti-lapse statute cannot be applied.
  • A will writer can include a provision in their will stating that they do not wish the anti-lapse statute to be applied.

Residuary Clauses

The anti-lapse statute takes effect if a person does not make alternate arrangements for the inheritance due to a beneficiary’s death.

If the anti-lapse statute does not apply to the deceased—if they were, for instance, a close friend or an in-law rather than a blood relative—the remainder of the estate may be divided through California’s residuary clause.

The residuary clause will distribute the deceased beneficiary’s assets equitably among all named heirs, based on their relative, percentage-based share of the estate.

How A California Probate Attorney Can Help

If you want to write a will, establish a trust, or revise an existing estate planning document, an attorney can help ensure that your legacy is secure from the probate court’s arbitrary rules.

We can also help you make sense of a contested will, especially if the other beneficiaries disagree over who should inherit a predeceased person’s share.

Do You Need Legal Help Regarding Probate Issues In California?

If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our probate services. We proudly serve clients throughout California with offices in experienced probate attorney as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our probate services. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.

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Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.