Legal Question in Wills and Trusts in California

Your husband may still be able to have an attorney draft and execute a will or trust so long as he has the testamentary capacity. You should consult an estate planning attorney to assist you and your husband if a will or trust is something your husband is interested in.

Mr. Reid is correct. If possible, have him make a will. Even the simplest will will save a lot of trouble and expense after he passes, and if a trust or other plan is appropriate, it will save a LOT of trouble and MORE expense, especially taxes. Unfortunately if he is already no longer mentally capable of making a will (the physical part can be worked around if he has mental capacity and ability to communicate) then you need to resign yourself to an intestate probate.

If everything is community property, especially if both of your names are on the house and bank accounts, you will not need to probate your husband's estate. The only way to be sure is to discuss your situation in detail with a qualified estate planning attorney.

If your Husband dies with no will, you will have procedural issues to deal with in transferring title. The California Intestacy laws will apply, and they will specify where the prperty goes. The worst result is that things may not pass in the way your Husband intended. If he is able to do a will or trust, obviously that is best. If he is unable or unwilling to do so, the intestacy laws generally reflect what most people would anticipate. It's not an impossible situation. You may want to consult with an estate planning attorney now to get a basic education as to the alternatives in any event. It should provide you some confort as to the applicable laws and what is procedurally likely to happen.