Under California law, a decedent’s family members (even the decedent’s children), are not necessarily entitled to receive an inheritance under California law. A California resident may create an estate plan (a Will or Trust) and may leave their assets to whomever they wish (even non-family members). The decedent may also own other assets that are not subject to the terms of a Will or Trust, such as insurance proceeds, retirement accounts, securities held in transfer-on-death (TOD) accounts, and assets held in joint-ownership (called “joint-tenancy”), all of which may pass to specific designated individual in accordance with the policies or terms of each specific account rather than the terms of the Trust or Will.

The Decedent was Married

If the decedent has a living spouse, the spouse is probably entitled to the decedent’s assets for the remainder of the spouse’s lifetime, but there are exceptions. Some assets, such as real properties held in joint-ownership between both spouses, automatically pass to the spouse upon death, but this depends on the type of asset and the legal ownership. The right to receive an inheritance depends on the terms of the decedent’s Will or Trust. Spouses often create marital Trusts. However, a person could create Trust that specifically leaves their half of the marital assets, and/or their separate non-marital property (if any), to someone other than their spouse (which could include children or stepchildren). Most married couples choose to leave assets to their spouse first, then their kids upon the second spouse’s passing. Blended families sometimes deal with complicated disputes regarding who receives assets when one parent (or stepparent) is still living and there are children from previous marriages, who may or may not be entitled to an inheritance depending on the terms of the Trust and/or Will and the legal ownership of each asset.

No Will, Trust, or Estate Plan

If the decedent did not create an estate plan prior to passing away, a probate judge must determine who is legally entitled to the assets according to California’s laws of intestate succession. If the decedent died intestate (without a Will), the closest family relatives may be entitled to the decedent’s assets; however, the family member in charge will need to file an intestate Petition for Probate (also called a “Petition to Administer Estate”) and obtain court approval to transfer assets. The probate process can take several years. In some cases, if the decedent did not own a house or other substantial assets, the decedent’s closest relative may be able to avoid the entire probate process by obtaining and notarizing a Small Estate Affidavit from the court.

How to Determine Entitlement to an Inheritance

Below are the initial steps you should take to take to determine whether you are entitled to an inheritance:

• Determine if the decedent created a Will or Trust (an estate plan)
• Request copies of the Will or Trust from the Executor (for a Will) or Trustee (for a Trust)
• Review the terms of the Will or Trust to determine whether you are named as a beneficiary
• If the Executor or Trustee refuses to provide information, consult with an attorney

How to Obtain a Will or Trust 

Beneficiaries and heirs of Wills or Trusts are entitled to copies of the decedent’s estate plan after the decedent passes away. Before the grantor passes away, the granter is still entitled to make changes to their estate plan. Wills and Trusts are considered private documents until death, and most are revocable (unless set up as an Irrevocable Trust). The Executor or Trustee is required to send the heirs and/or beneficiaries’ each a copy of the estate planning documents within a few months of the decedent’s passing. The specific time frame varies depending on whether there is a Will, Trust, or both.

If you are an heir but have not received copies of the Will or Trust in the mail within a few months of the decedent’s passing, you could do an online name search on the Superior Court’s website in the County in which the decedent lived to determine whether a copy of the Will or a Probate case has been filed. Probate Court records are public records.

If you are unsure whether the decedent had a Trust, you could also perform a property title search with the County Recorder’s office in the county which the decedent owned property. If you obtain copies of the deeds to any of the decedent’s properties, you may be able to determine whether the decedent transferred their property into a Trust by reviewing the name on the deeds (which will list the legal owner and the name of the Trustee).

How to Obtain an Estate Plan

We recommend sending a letter, email, or text to the person who you believe may be the Executor or Trustee to request copies of the decedent’s Will or Trust. If the Executor or Trustee is unresponsive or refuses to provide the estate planning documents in a timely manner after the decedent’s passing, kindly inform the Trustee or Executor you may seek legal recourse.

How to Receive Your Inheritance

If you obtain copies of the decedent’s Will or Trust, and you are indeed named as a beneficiary, the Executor or Trustee should communicate with you about a time frame and an approximate value of your share. It may take some time to gather this information. If the decedent only had a Will (and no Trust), the executor will need to go through the probate process in court. Courts are always backlogged, so probate can take several years. The Executor or Trustee may also need to sell properties and securities before the assets are distributed, which can also slow down the process. If you are a Trust beneficiary, the Trustee should provide additional information on the steps and time frame for receiving your inheritance.

Problems with an Executor or Trustee

If the Executor or Trustee acts improperly by withholding financial information for an unreasonable amount of time, stealing from the Estate or Trust, mismanaging the Estate or Trust assets, favoring one beneficiary over the other, or downright refusing to provide your rightful inheritance, you may have legal recourse. We recommend consulting with a licensed attorney if you believe you may need to file a lawsuit.

The bottom line: inheritance entitlement depends on whether the decedent specifically named you as a beneficiary in their Will or Trust. Receiving an inheritance involves multiple steps, which could include the arduous process of probate court approval. It is not uncommon for probate or trust administration to take several years, so don’t expect an immediate payout.

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