Understanding Intestate Succession
Imagine this: A family in San Diego loses a loved one unexpectedly. Amid their grief, they discover there’s no will. What now? Who inherits the house in La Jolla? Who gets the retirement accounts? And who’s responsible for the outstanding debts?
If you’ve ever wondered what happens to your assets if you pass away without a will in California, you’re not alone. This situation—dying “intestate”—is more common than you might think, and it puts your family’s financial future in the hands of California state law rather than your own wishes.
What is Intestate Succession?
Intestate succession refers to the state laws that determine who inherits your property when you die without a valid will. In California, these laws act as your “default will,” distributing your assets according to a predetermined formula based on your family relationships.
The California Probate Code Sections 6400-6455 govern intestate succession, creating a hierarchy of who receives what when no will exists. These laws might not distribute your assets the way you would have chosen—which is why creating a will is so important.
Who Inherits When There’s No Will in California?
California’s intestate succession laws follow a specific order of priority. Here’s how assets are typically distributed:
If You Have a Spouse and Children
If you’re married when you die without a will in California, your assets will be divided between your surviving spouse and children, with the exact distribution depending on whether the property is community property or separate property.
Community Property: In California, a surviving spouse inherits all community property. Community property includes most assets acquired during the marriage.
Separate Property: For separate property (assets owned before marriage or received as gifts or inheritances), the distribution depends on how many children you have:
- If you have one child: Your spouse inherits 1/2 of your separate property, and your child inherits 1/2
- If you have two or more children: Your spouse inherits 1/3 of your separate property, and your children split the remaining 2/3 equally
If You Have a Spouse But No Children
If you have a spouse but no children, your spouse inherits all your community property and either all or part of your separate property, depending on whether your parents or siblings are still living:
- If your parents are deceased and you have no siblings: Your spouse inherits all separate property
- If you have surviving parents but no siblings: Your spouse inherits 1/2 of separate property, and your parents inherit 1/2
- If you have surviving siblings but no parents: Your spouse inherits 1/2 of separate property, and your siblings split 1/2
If You Have Children But No Spouse
If you have children but no spouse, your children inherit everything in equal shares. If a child has died before you, that child’s children (your grandchildren) will typically receive their parent’s share.
If You Have Neither a Spouse Nor Children
If you die without a spouse or children, your estate passes in the following order:
- Parents
- Siblings (or their children if a sibling is deceased)
- Grandparents
- Aunts, uncles, and cousins
- If no blood relatives can be found, your estate “escheats” to the State of California
These rules are codified in California Probate Code Sections 6401 and 6402.
What Property Doesn’t Pass Through Intestate Succession?
Not all assets follow intestate succession rules. Some property passes to specific beneficiaries regardless of whether you have a will:
- Assets with designated beneficiaries (life insurance policies, retirement accounts, transfer-on-death accounts)
- Property held in joint tenancy or community property with right of survivorship
- Assets in a living trust
- Pay-on-death bank accounts
- Transfer-on-death securities
These assets pass directly to the named beneficiaries or co-owners, bypassing the probate process entirely.
The Probate Process for Intestate Estates
When someone dies without a will in California, their estate typically goes through probate—a court-supervised process for distributing the deceased person’s assets.
How Probate Works for Intestate Estates
- Petition for Administration: Someone (usually a family member) must petition the probate court to be appointed as the estate administrator.
- Appointment of Administrator: The court appoints an administrator, who functions similarly to an executor but follows intestate succession laws rather than a will’s instructions.
- Notification of Heirs and Creditors: The administrator must notify potential heirs and creditors about the probate proceeding.
- Inventory and Appraisal: The administrator creates an inventory of estate assets and has them appraised.
- Payment of Debts and Taxes: The administrator pays valid creditor claims and any taxes owed.
- Distribution of Remaining Assets: After debts and taxes are paid, remaining assets are distributed according to California’s intestate succession laws.
The entire process typically takes 9-18 months and can cost between 4-7% of the estate’s value in administrative fees, attorney fees, and court costs.
Small Estate Procedures in California
If the estate’s value falls below certain thresholds, California offers simplified procedures that may allow heirs to skip the formal probate process:
- Estates with personal property valued at $166,250 or less—excluding real property—may qualify for simplified probate procedures under California Probate Code Section 13100.
- For real property valued at $55,425 or less, heirs can file an Affidavit Re Real Property of Small Value:
Common Questions About Dying Without a Will in California
What happens to my home if I die without a will?
If you own your home solely in your name and die without a will, it will be distributed according to intestate succession laws. Your spouse, children, or other relatives will inherit it based on their relationship to you.
Do unmarried partners inherit under intestate succession?
No. California intestate succession laws do not recognize unmarried partners, regardless of how long you’ve been together. Without a will, your partner has no inheritance rights.
What about my stepchildren?
Stepchildren have no inheritance rights under California intestate succession laws unless you’ve legally adopted them. This can lead to unintended consequences if you have a blended family.
How long does intestate probate take in California?
Probate for intestate estates typically takes 9-18 months but can take longer if complications arise, such as disputes among heirs or difficulty locating all potential beneficiaries.
Can I avoid intestate succession?
Yes! Creating a valid will or trust allows you to determine who inherits your property rather than leaving it to state law. Other estate planning tools like beneficiary designations, joint tenancy, and payable-on-death accounts can also help avoid intestate succession for specific assets.
The Pitfalls of Intestate Succession
Dying without a will in California can create numerous problems:
- Your wishes aren’t honored: The state’s formula may not reflect your personal wishes about who should inherit your property.
- Family conflict: When the law determines inheritance rather than your explicit wishes, disputes among family members often arise.
- Higher costs and longer delays: Intestate probate can be more complicated, expensive, and time-consuming than probate with a valid will.
- Unintended beneficiaries: Distant relatives you barely know might inherit your assets while close friends or unmarried partners receive nothing.
- Court-appointed guardians for minor children: Without a will naming guardians for your children, the court will appoint someone—possibly not the person you would have chosen.
Special Considerations in California
Community Property State Rules
California is a community property state, which significantly affects how assets are distributed when someone dies intestate. Generally, each spouse owns half of all community property, which includes most assets acquired during marriage.
When one spouse dies without a will, their community property interest passes to the surviving spouse. However, separate property (acquired before marriage or through gift or inheritance) follows different distribution rules.
Domestic Partners
In California, registered domestic partners have the same intestate succession rights as spouses under California Probate Code Section 6401(c):
Half-Relatives
Under California law, half-blood relatives (such as half-siblings) inherit the same as whole-blood relatives according to California Probate Code Section 6406.
Posthumous Relatives
Children conceived before your death but born afterward can still inherit as if they had been born during your lifetime, according to California Probate Code Section 6407.
Key Takeaways: California Intestate Succession
- Dying without a will in California means the state decides who gets your property through intestate succession laws.
- Your spouse and children are typically first in line to inherit, but the exact distribution depends on whether the property is community or separate property.
- Many assets—like life insurance policies with named beneficiaries, jointly-owned property, and assets in trusts—pass outside of intestate succession.
- Unmarried partners and stepchildren (unless legally adopted) have no inheritance rights under intestate succession.
- The probate process for intestate estates can be lengthy (9-18 months) and expensive (4-7% of estate value).
- Creating a will or trust is the only way to ensure your assets go to the people you choose rather than following the state’s predetermined formula.
Frequently Asked Questions
Who inherits if someone dies without a will in California?
The California Probate Code determines inheritance when someone dies without a will. Typically, assets go first to a surviving spouse and children, then to parents, siblings, and more distant relatives, in that order.
How long does someone have to be married to inherit in California?
There’s no minimum marriage length requirement for inheritance rights in California. Even a recent spouse has full inheritance rights under intestate succession laws.
Can friends inherit if there’s no will?
No. Friends cannot inherit through intestate succession regardless of how close your relationship was. Only blood relatives and legal spouses/registered domestic partners can inherit without a will.
What happens to my pets if I die without a will in California?
Under California law, pets are considered personal property. Without a will specifying who should care for them, they’ll be distributed along with your other property according to intestate succession laws.
Do estate taxes apply to intestate estates in California?
California does not have a state estate tax. However, for very large estates, federal estate taxes may apply whether or not there’s a will.
What happens to digital assets when someone dies without a will?
Digital assets (social media accounts, digital photos, cryptocurrencies, etc.) are treated like other personal property and distributed according to intestate succession laws, though accessing these assets can be challenging without proper planning.
Contact Us
Don’t leave your family’s future to chance. Creating a comprehensive estate plan ensures your wishes are honored and your loved ones are protected.
Our San Diego County legal team at Casiano Law Firm can help you create a personalized estate plan tailored to your unique circumstances, or assist your family if you’re dealing with the intestate estate of a loved one.
Schedule a consultation today to take the first step toward peace of mind. Your family’s security is too important to leave to intestate succession laws.
