What happens if a person dies without a will or trust?


By Atty. Robert L. Ferris 

Q. What happens if a person dies without a will or trust?

If a person dies without a will or a trust (the decedent dies intestate) then the decedent’s property will pass to the decedent’s closest relatives (heirs) in the following order: surviving spouse, children, parents, siblings, and more distant relatives (Probate Code §6400). If the decedent owned a home or other real property which is not held in joint tenancy, and the heir is not the surviving spouse, then the decedent’s estate must be probated in order for the property to pass to the heirs. If the surviving spouse is the heir, then there is a simplified probate procedure called a “Spousal Property Petition”. The cost and the procedure to probate the estate of someone who dies without a will is the same as for someone who dies with a will.

Q. How much does it cost to probate an estate?

The usual cost to probate an estate includes the following: The court filing fee, newspaper publication cost, the probate referee’s fee to value the estate for the court, and in some instances the cost to obtain a bond. These costs usually range from $1,200 – $2,000. The attorney and the estate representative are paid from the estate for their share of the work in probating the decedent’s estate. The amount of their fee is based on the value of the estate as follows: 4% of the first $100,000; 3% of the next $100,000; 2% of next $800,000; and 1% of the next $9,000,000 (See California Probate Code, Sec. 10800-10810).

For example, if the value of the estate is $500,000 the attorney and the estate representative would each be paid $13,000 calculated as follows:

4% on first $100,000
3% on next $100,000
2% on next $800,000
$100,000 =
$100,000 =
$300,000 =

These fees are paid from the decedent’s estate at the conclusion of the probate process and must be approved by the court. The estate representative can choose to waive his or her fee. I offer reduced attorney’s fees for estates valued over $500,000.


A power of attorney allows an individual to authorize someone else to handle his or her financial affairs. The power of attorney automatically terminates when the individual who created the power of attorney dies. There are different types of power of attorney. A power of attorney can become effective immediately upon signing, or may only become effective when an individual is unable to make his or her own financial decisions. A power of attorney can be revoked at any time by giving proper notice. WE ALSO DO POWER OF ATTORNEY FOR THE PHILIPPINES.