Legal Question in Wills and Trusts in California
With a minor heir of an estate with no will: what goes to probate?
My 12 yr. old son is heir to his deceased father's estate. He and I weren't married, and there was no will. However, my son is the named beneficiary of both his dad's Union 401K plan and his Union death benefit. These things DON'T go to probate, as they are probate avoiders since they had a named beneficiary. In addition, they are non probate assets anyway (employee death benefits and retirement plan). Am I right on these things (for California)? Why would the administrator's lawyer try to get these things into the probate? Isn't that wrong, and wouldn't that make these assets heavily taxed?
2 Answers from Attorneys
Re: With a minor heir of an estate with no will: what goes to probate?
These assets are not taxed any differently because they go through probate or not. Your 12 year old son is too young to get these assets outright. Who should have control of the assets from his father during your son's childhood is a matter for the courts. Again, it is vrey easy the persist in the belief that marriage is just a piece of paper, but it has important consequences.
Re: With a minor heir of an estate with no will: what goes to probate?
Your first few sentences are generally correct. If a person is a named beneficiary on an asset (such as on IRAs, 401ks, and life insurance), it generally does not need to go to probate. An attorney should not and usually cannot get those assets to probate. Probate is not a tax. Probate is the court involved distribution of assets. There are costs related to the court's involvement. One can have estate taxes without probate and frequently probate costs without estate taxes.
I hope I have answered your questions.
Sincerely,
Kai H. Wessels, Esq.
(tel. 877-Wessels)
This is provided for informational purposes only and not to be relied upon as legal advice.
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