Summer allows us a little break in our Palm Springs law office, and it also allows us to take a break from our blogs. But as Fall is now upon us (and it is gorgeous outside, trust me), it’s time to get back to business. We get a a lot of questions about the probate process here in California (something our Firm gets involved in regularly), and how it may differ when the deceased was not a US citizen/ resident.
Before We Describe the Probate Process, Remember, Your Estate Will Save Time and Money if You Put Your House in a Trust While You’re Living
California probate is a both time consuming (think 8 months to over a year to complete…) and costly (the family of a deceased will have to pay attorneys approximately 3% of the value of the property being probated in California…plus extra costs as well associated with the estate tax return of the estate and even potentially other costs). On the other hand, property placed into a valid trust (under California law) does not have to go through probate, which generally saves the estate thousands of dollars and speeds up the process by which the heirs receive the property considerably. Sanger and Manes drafts trusts for Canadians owning Palm Springs area real estate (and all of California property generally).
If the Canadian Decedent Did Not Use a Trust or WIll which Constiutes a Valid Trust or Will Under California Law, What Happens to the US Real Estate When the Canadian Dies?
Just like if an American dies owning US real estate, no trust means a probate is required. Probate means a court proceeding whereby the court must decide who owns the property now that the former owner has passed away. Typically (although not always), the decedent will have at least had a will (probably back in Canada). So we, as US attorneys, will attempt to have the Canadian will accepted by the US court. Will it be? Not necessarily. Each state in the United States provides for its own requirements which a valid will must contain. For example, one requirement under California law is that a valid will must be signed by two witnesses who were present to witness the execution of the document by the testator and who also witnessed each other sign the document. So what if a Canadian will had one only witness? Certainly that document could be ruled invalid by the California court, and the deceased could be viewed as dying without a will (or dying “intestate”).
What are Impications of Dying Intestate?
Under California law, if the Canadian decedent is viewed as dying intestate, either because he or she had no will or trust (or the will he or she had was not viewed as valid under California law), the decedent’s property in Cal will be transferred to his or her next living heirs at law, in equal measures. So if a husband died intestate, the property would all go to his wife. If his wife had predeceased him, it would go to his children in measures- all by the rules of intestate succession.
I always tell my Canadian clients if their desire is to leave their property to someone other than the children in equal measures (like to just one child of three who really enjoyed the US house, or to a brother instead of any of the children), then at least get a California will for the California property to ensure it goes where the deceased wanted it to go (you can have confidence the California will will be honored by the California court, unlike the Canadian will). Of course, I still prefer a trust above all else.
We’ll talk about the various steps in the probate process in Part II of this series.