A Guide to Intestate Succession in California

When someone dies before drawing up a will that specifies how they want their estate handled, that’s known as dying intestate. Without a will, it’s up to the court to determine how any assets will be distributed and to whom. Here’s what you need to know.

What Happens When Someone Dies Without a Will in California?

Precisely what happens when someone dies intestate in California depends on a number of factors, as every case is unique. However, in general, an estate owned by someone who died intestate must go through California’s probate court, as specified in California’s intestate succession law.

That means the court, rather than the deceased, determines how the estate will be distributed. If the deceased had no assets, this isn’t a problem. But if there were assets, they must be registered with the probate court.

Another critical factor in not having a will applies if there were minor children who were orphaned by the death of the intestate person. A will provides a legal process to assign guardianship to the children as chosen by the deceased. If there’s no will, the probate court has the responsibility of choosing a legal guardian for the children.

How Does Probate Court Determine How to Distribute an Estate When There’s No Will?

California’s intestate succession law is specific about how assets will be distributed, and the emphasis is on surviving family members, with the caveat that survivors must outlive the deceased for at least five days (120 hours) in order to be eligible for the inheritance. The court prioritizes the family tree in this order.

• Spouse or registered domestic partner. This person will receive all the community property and half of the separate property (the difference between community and separate property is explained below). However, if the spouses were legally separated at the time of one’s death, the surviving spouse is no longer eligible for any inheritance.
• Children. Usually, children will receive half of the couple’s separate property divided equally among them if there is more than one child. If a child is deceased but has surviving children of their own (which makes them the intestate deceased’s grandchildren), those children will receive that portion of the inheritance.
• Parents. Suppose the deceased has no surviving spouse, registered domestic partner, or children or grandchildren, but they do have surviving parents. In that case, those parents will receive the assets of the estate divided equally between them.
• Siblings, nieces, and nephews. If none of the family members listed above are alive, any siblings and their offspring will receive the assets. The siblings receive the assets first, but if one or more siblings are deceased but have surviving children (nieces and nephews), those children receive the sibling’s portion.
• Grandparents or descendants of grandparents. If none of the family members listed above are alive, any remaining grandparents or their descendants are eligible to receive the estate.
• Distant relatives. If all of the above are deceased, the California probate code allows the court to try and determine if there are more distant relatives (second and third cousins, etc.) that are surviving to award the estate to.
• No surviving family members (as far as can be known). When this happens, the estate is taken by the state of California.

The bottom line is that someone who dies intestate will have their assets given only to family members. If the estate owner doesn’t want family members to have the assets or wants to give some of the assets to friends or organizations such as nonprofits, the only way to ensure that happens is to draw up a legal will. No friends or organizations can receive any part of the estate without a will.

What Is Community Property and Separate Property in California?

As noted above, the court will examine assets to see which ones were community versus separate property for spouses. That’s an important distinction. Here’s how California law views property in a marriage.

Community property (sometimes called marital property). This is basically any assets acquired by the couple during the marriage, whether it’s real estate, bank accounts, investments, etc. When someone dies intestate but has several assets that were jointly owned, the spouse automatically receives those assets without having to go through probate. It’s important to note that some gifts and inheritances may not be considered community property. If there’s uncertainty as to whether or not a specific gift or inheritance is considered community or separate property, it’s advisable to work with an experienced estate planning attorney.

Separate property. Each party in a marriage may have had assets that they owned before the marriage, including real estate or bank accounts. That’s considered separate from the marriage, as are most gifts or inheritances that arrive during the marriage, as long as they’re directed to one spouse only. These are considered separate as long as they weren’t rolled into the community property. Once a couple has legally separated, any assets they acquire from the point of separation are also considered separate.

What Should I Do if I Need to Begin Drafting a Will?

Call Cava & Faulkner at 916-685-1225 for a free consultation. Our team of experienced, knowledgeable estate planning attorneys understands how important it is to ensure your wishes are followed after your death. A will is a vital tool for helping that to happen. There may be other tools, such as trusts and powers of attorney, that can also help, but a will is a great place to start.