Intestate Succession in California: An Overview

Each year, many Californians pass away without leaving a last will, often assuming their family would automatically inherit their property. But when someone dies without a will, California’s intestate succession laws take over, dictating who gets what.

While this system may seem straightforward, it can lead to unintended results, especially if you have a complex family situation or specific wishes for how your assets are distributed.

At Desert Law Group, we have been helping individuals and families plan their estates for almost 25 years. We understand how important it is to control what happens to your property during your lifetime and when you pass away, and intestate succession can strip you of that control.

In this article, we’ll walk through the basics of intestate succession in California and highlight why it’s so important to create a will that reflects your wishes.

What is Intestate Succession?

When someone dies without a will, they are considered to have died “intestate.” California’s intestate succession laws, outlined in the California Probate Code sections 6400-6455, determine how that person’s property will be distributed among their surviving family members.

Essentially, the state decides who gets what, based on predefined rules.

Which Assets Pass by Intestate Succession?

Intestate succession only applies to probate assets, which are assets that would have been passed through a will. However, not all assets fall under this category.

Probate Assets

These can include assets like real estate, bank accounts, and personal property that were solely owned by the deceased. If you don’t have a will, these assets will be distributed according to California’s intestate succession laws.

Non-Probate Assets

Non-probate assets, on the other hand, pass directly to beneficiaries outside of the probate process. These include:

• Property held in a living trust or irrevocable trust
• Life insurance proceeds with a named beneficiary
• Retirement accounts like IRAs and 401(k)s with named beneficiaries
• Securities in transfer-on-death accounts
• Real estate or vehicles with transfer-on-death registration
• Joint tenancy property with a surviving tenant
• Payable-on-death bank accounts

These assets go directly to the named beneficiaries, even if the person dies without a will. However, if those beneficiaries are no longer living, the asset might be subject to intestate succession.

How Intestate Succession Works in California

When someone dies intestate in California, the distribution of their assets depends on two key factors: whether the property is community or separate property, and the surviving family members.

Community Property vs. Separate Property

California is a community property state. This means any assets acquired during marriage (with some exceptions) are considered community property and are generally split evenly between spouses. Separate property, on the other hand, includes anything owned before the marriage or acquired as a gift or inheritance. In intestate succession, the court distributes the deceased’s share of community property differently.

Order of Inheritance

The order in which assets are distributed depends on the surviving relatives. Here’s a breakdown of who inherits and when:

1. Spouse Only: If the deceased has no children, parents, or siblings, the surviving spouse inherits everything, including all community property and separate property.
2. Spouse and One Child: In this case, the spouse will inherit all community property, plus half of the deceased’s separate property. The remaining half of the separate property will go to the surviving child.
3. Spouse and Two or More Children: The spouse still receives all community property, but only one-third of the separate property. The rest is divided equally among the children.
4. Spouse, One Child, and Grandchildren from a Deceased Child: In a scenario where the deceased had one living child and grandchildren from another child who has already passed away, the surviving spouse inherits all community property and one-third of the separate property. The remaining two-thirds is divided between the living child and the grandchildren, with the grandchildren splitting their parent’s share equally.
5. Spouse and Grandchildren from Two or More Deceased Children: If both of the deceased’s children have passed away, leaving behind grandchildren, the spouse will still receive all community property and one-third of the separate property. The remaining two-thirds will be divided equally among the grandchildren of both deceased children, with each grandchild taking their parent’s share.
6. Spouse and Parents: If there are no children or grandchildren, the surviving spouse inherits all community property and half of the separate property. The other half of the separate property goes to the deceased’s surviving parents.
7. Spouse and Siblings (No Parents): If the deceased has no surviving children, grandchildren, or parents, the surviving spouse inherits all community property and half of the separate property. The other half of the separate property is divided equally among the deceased’s siblings.

The Spouse’s Share

A surviving spouse in California always inherits all community property, but their share of the separate property depends on other surviving family members as we have outlined above. If a couple was legally separated at the time of death, the surviving spouse is not entitled to inherit. It’s also important to note that registered domestic partners have the same inheritance rights as spouses.

Children’s Shares

The share each child inherits also depends on how many children there are. Additionally, California law treats various types of children differently:

• Adopted Children: They have the same rights as biological children.
• Foster and Stepchildren: They only inherit if they were legally adopted, unless they can prove they were treated as if they were.
• Posthumous Children: Children conceived but not yet born when the parent dies still inherit.
• Children Born Outside of Marriage: These children inherit if parentage is established legally.
• Grandchildren: They only inherit if their parent (the deceased’s child) is also deceased.

Will the State Get Your Property?

When someone passes away without a will and no heirs can be found, the deceased’s estate may eventually revert to the state of California. This process is known as escheat. While it may sound alarming, escheat is actually quite rare.

California law goes to great lengths to distribute a person’s assets to even distant relatives before allowing the state to claim the property.

Here’s how it works: When no immediate family members—such as a spouse, children, or parents—can be found, the state will begin searching for more distant relatives.

California’s intestate succession laws prioritize keeping the property within the family, so the search extends to siblings, grandparents, aunts, uncles, nieces, nephews, and cousins. Even if a relative is as distant as a second cousin, they would still inherit before the state steps in.

The state’s goal is to avoid escheat as much as possible. Only when absolutely no living relatives can be located, even after an exhaustive search, does the property revert to the state.

It’s worth noting that escheat doesn’t happen quickly—extensive efforts are made to track down any possible heirs.

The Probate Process Under Intestate Succession

When someone dies without a will, their estate also needs to go through probate, a lengthy and expensive court-supervised process for distributing assets and settling debts. While probate is required whether or not a will exists, there are key differences when it comes to intestate succession.

First, the court must determine intestacy, confirming that no valid will exists. This step ensures the estate is distributed under California’s intestate succession laws. Once intestacy is established, the process begins.

Next, the estate’s representative must gather information about the deceased’s assets, debts, and potential heirs. This information is critical to ensure the estate is managed and distributed correctly.

Then, the representative files a petition with the Superior Court in the county where the deceased resided, asking to open a probate case and appoint an administrator for the estate. The court will schedule a hearing to appoint this administrator.

Once the probate case is opened, the administrator must notify heirs and creditors formally about the case. They must also publish a notice in a local newspaper to inform any unknown creditors or interested parties about the probate proceedings.

After this, a court hearing is held, and if approved, the administrator is officially appointed by the court and given the legal authority to manage the estate. The administrator will then prepare an inventory and appraisal of the deceased’s assets to determine their fair market value.

The administrator must then use estate funds to pay off any debts and taxes owed before distributing any remaining assets to heirs, as outlined by intestate succession laws. Throughout this process, the administrator is required to file reports with the court to keep track of how the estate is managed.

Finally, the administrator distributes the remaining assets to the rightful heirs. A final accounting is submitted to the court, showing how everything was handled, and a petition for discharge is filed to finally close the estate. Once the court approves the final distribution, the estate is officially closed.

Other California Intestate Succession Rules

California has a few additional rules that affect how assets are distributed:

• Survivorship Period: Heirs must survive the deceased by 120 hours to inherit.
• Half-Relatives: They inherit just like full relatives.
• Posthumous Relatives: Conceived but unborn relatives can still inherit.
• Immigration Status: Heirs can inherit regardless of immigration status.
• Advancement Rule: If the deceased gave a significant gift during their lifetime, it may count against the heir’s share.
• Slayer Rule: Someone who intentionally caused the death of the deceased cannot inherit.

Potential Problems with Intestate Succession

While intestate succession may seem like a simple way to distribute assets, it can lead to complications:

Unintended Beneficiaries

Without a will, your assets might go to people you didn’t intend to inherit from you, like distant relatives you’ve had no contact with.

Family Disputes

When there’s no clear will, disagreements among family members can arise, leading to expensive and time-consuming legal battles.

Complications for Blended Families

Intestate succession often fails to account for the unique dynamics of blended families, leading to stepchildren being excluded from the inheritance unless they were formally adopted.

Lack of Control Over Guardianship

Without a will, the court will decide who takes care of your minor children, which might not reflect your wishes.

Benefits of Having a Will

By having a will, you take control of your estate and ensure your wishes are followed. Here are a few key benefits:

• Control: Decide exactly how your assets will be distributed.
• Peace of Mind: Knowing your wishes are in writing can provide comfort to both you and your loved ones.
• Minimize Family Disputes: A clear will can help avoid disagreements over your estate.
• Guardianship Designation: Choose who will care for your minor children.
• Charitable Giving: Leave a legacy by including charitable gifts in your will.

Secure Your Legacy Today: Call Desert Law Group

Creating a will is one of the most important things you can do to ensure your family is taken care of after you’re gone. Don’t leave it to chance—contact Desert Law Group today at (760) 239-5661 to schedule a consultation with our experienced estate planning attorneys. We’re here to help you create a plan that protects your loved ones and honors your wishes.