Ask Phyllis: a blog series of frequently asked real estate questions.
What happens if you don’t have a will or a trust
Dear Phyllis,
I look forward to your real estate wisdom and believe I have a new topic. My ninety-five-year-old aunt is widowed. She and her husband never had children. She still drives and does her shopping and errands. I visit once a week to check in and keep her company. We also invite her to holiday dinners to enjoy with our family. She does not have a will or trust. My family does not need her money, but I am concerned about how her home and assets will be distributed upon her death. I would prefer she make a document, leaving it all to charity rather than distant, unknown relatives. What happens if you don’t have a will or trust, and what do you suggest I do?
A Nephew
Dear Nephew,
I am not an attorney, and I suggest you contact one. If your aunt dies without a will or trust (intestate), California’s intestate succession laws will dictate who inherits her estate—including her home and other assets. Since she has no children, no living spouse, and you did not mention siblings, the court will look for the next closest blood relatives, even if she has never met them. These could be distant cousins or their descendants.
This is from my perspective as a real estate agent who specializes in trust and probate sales. Your 95-year-old aunt needs an estate plan—now—if she wants her home and assets to go to charity rather than distant relatives.
Meet with a Trust Attorney:
1. Create a Living Trust
This is the best option as she owns real estate.
Avoids probate, names charitable beneficiaries, and keeps things private.
2. Make a Will (at minimum)
Names who inherits (e.g., charities) and who is in charge.
Still goes through probate, which is slow and public.
3. Set up the Power of Attorney & Health Directive
Allows someone she trusts to manage finances and medical care if she becomes incapacitated.
If none of the above is an option, you should contact a trust attorney and obtain guidance on helping your aunt create a holographic will. A holographic will is a handwritten will that is created and signed by the person making the will. Although this can be created without an attorney, I recommend against it. You want to be sure it is properly done and valid.
