If you die without a will in California, state law decides who inherits your property through a process called "intestate succession." This rigid legal framework may not align with your wishes and can create complications for your loved ones.
⚠️ Critical Fact
Many Americans don't have a will or trust. When they pass away, California's intestate succession laws, not their wishes, determine who inherits everything they've worked for.
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What Is Intestate Succession?
Intestate succession is the legal process that determines who inherits your property when you die without a valid will or living trust. California Probate Code §§ 6400-6455 establishes a strict hierarchy of heirs based on family relationships.
This process applies to:
- People who never created a will or trust
- Those whose will was declared invalid
- Individuals whose will doesn't dispose of all property
- Property not transferred to a trust
Who Inherits Under California Intestate Succession?
California law establishes a specific order of inheritance that depends on which family members survive you.
If You're Married or Have a Registered Domestic Partner
California is a community property state, which significantly affects intestate succession. Here's how your property is distributed:
| Surviving Relatives | Spouse/Partner Gets | Others Get |
|---|---|---|
| Spouse/partner only (no children, parents, or siblings) | 100% of estate | Nothing |
| Spouse/partner + 1 child (or child's descendants) | All community property + 1/2 separate property | Child gets 1/2 separate property |
| Spouse/partner + 2+ children | All community property + 1/3 separate property | Children share 2/3 separate property |
| Spouse/partner + parent(s) but no children | All community property + 1/2 separate property | Parent(s) get 1/2 separate property |
| Spouse/partner + siblings but no children/parents | All community property + 1/2 separate property | Siblings share 1/2 separate property |
📘 Community vs. Separate Property
Community Property: Assets acquired during marriage (with exceptions like inheritance or gifts)
Separate Property: Assets owned before marriage, inherited property, or gifts to one spouse
If You're Not Married
When you're unmarried with no registered domestic partner, your estate passes to blood relatives in this order:
- Children: Your children inherit everything equally. If a child died before you, their children (your grandchildren) inherit their share.
- Parents: If no children or grandchildren, your parents inherit everything equally.
- Siblings: If no parents, your siblings share everything. Nieces and nephews inherit if their parent (your sibling) predeceased you.
- Grandparents: If no siblings or their descendants, your grandparents inherit.
- Aunts/Uncles: If no grandparents, your parents' siblings inherit.
- Cousins and Beyond: The law extends to increasingly distant relatives.
- The State: If absolutely no relatives can be found, your property "escheats" to the State of California.
Example Scenarios
Scenario 1: The Blended Family
Situation: Michael remarries after his wife's death. He has two adult children from his first marriage. He and his new wife, Sarah, buy a house together. Michael dies without a will.
Result: The house (community property) goes entirely to Sarah. However, Michael's separate property, including his retirement accounts and a rental property he owned before remarriage, is split: 1/3 to Sarah, 2/3 divided between his two children. This creates conflict as Sarah expected to inherit everything.
Scenario 2: The Long-Term Partner
Situation: Jennifer and Mark have lived together for 15 years but never married. They own a home together, with both names on the deed as tenants in common. Mark dies without a will.
Result: Mark's share of the property passes to his adult daughter from a previous relationship, not to Jennifer. Jennifer must now co-own the home with Mark's daughter, who may want to force a sale.
Scenario 3: The Estranged Relative
Situation: David has been estranged from his siblings for 20 years due to family conflict. He's close with his best friend and wants her to inherit. He dies without a will.
Result: His siblings, whom he hasn't spoken to in decades, inherit everything. His best friend gets nothing, regardless of their relationship.
Who DOESN'T Inherit?
California's intestate succession laws exclude several categories of people you might assume would inherit:
- Unmarried Partners: Boyfriends, girlfriends, and long-term partners receive nothing unless you were registered domestic partners.
- Stepchildren: Stepchildren generally don't inherit unless you legally adopted them.
- Friends: Even your closest friends have no legal claim to your estate.
- Charities: Organizations you supported during life receive nothing.
- Ex-Spouses: Divorce terminates inheritance rights.
- Foster Children: Foster children generally don't inherit unless formally adopted.
⚠️ The Probate Requirement
Dying intestate usually means your estate goes through probate, a public, expensive, and time-consuming court process that often takes 12 to 18 months or longer; on a $500,000 estate the statutory attorney and executor fees alone are $26,000, plus court costs. Smaller estates have simpler routes: an estate up to $208,850 can use a small estate affidavit (Probate Code §13100), and for deaths on or after April 1, 2025, a primary residence worth up to $750,000 can pass by a court petition under Probate Code §13151, which is simpler than full probate but still a court filing.
Help Your Family Avoid $26,000+ in Probate Fees
Probate fees are set by statute: the personal representative (Prob. Code §10800) and the attorney (§10810) are each entitled to the same schedule, so the figure above counts both. Extraordinary fees and court costs are extra. A living trust is $400 for an individual, $500 for a couple.
Additional Complications of Dying Intestate
1. Minor Children's Guardianship
If you have minor children and die without a will, you don't get to choose their guardian. The court decides based on "the best interests of the child," which may not align with your preferences. Family members may fight for custody, creating additional trauma for your children.
2. Business Ownership Issues
If you own a business, dying intestate can create operational chaos. Your business interests may be divided among multiple heirs who disagree about management. Partners or co-owners may suddenly be in business with your relatives who lack expertise.
3. Digital Assets
California's intestate succession laws don't specifically address digital assets like cryptocurrency, social media accounts, or online businesses. These can be permanently lost or inaccessible without proper planning.
4. Family Conflict
Intestate succession often creates or exacerbates family disputes. When the law makes decisions instead of you, relatives may fight over who gets what, destroying relationships and depleting the estate through legal fees.
Special Situations
Half-Relatives
Half-siblings (those who share only one parent with you) have the same inheritance rights as full siblings under California law.
Posthumous Children
Children conceived before but born after your death inherit as if they were born during your lifetime.
Immigration Status
Immigration status doesn't affect inheritance rights. Non-citizen relatives can inherit under intestate succession laws.
Debts and Taxes
Before any distribution to heirs, your estate must pay:
- Probate administration costs and attorney fees
- Court costs and executor fees
- Funeral and burial expenses
- Outstanding debts and taxes
How to Avoid Intestate Succession
You can prevent California's intestate succession laws from controlling your estate with proper planning:
Create a Living Trust
A revocable living trust allows you to:
- Specify exactly who inherits what
- Avoid probate for the assets it holds
- Provide for people intestate succession excludes (partners, stepchildren, friends)
- Create conditions for inheritance (age requirements, educational milestones)
- Maintain privacy (trusts aren't public record)
Execute a Will
At minimum, everyone should have a will that:
- Names guardians for minor children
- Specifies who inherits your property
- Names an executor to manage your estate
- Addresses specific bequests (family heirlooms, sentimental items)
💡 Important Note
A will avoids intestate succession but doesn't avoid probate. A funded living trust is one of the most complete ways to avoid probate while keeping control over distribution.
Use Beneficiary Designations
Certain assets transfer outside of intestate succession through beneficiary designations:
- Retirement accounts (401k, IRA)
- Life insurance policies
- Payable-on-death (POD) bank accounts
- Transfer-on-death (TOD) securities
Critical: Review beneficiary designations regularly. These override your will or trust, so outdated designations (like an ex-spouse) can cause problems.
Time-Sensitive Considerations
Don't delay estate planning. Common myths that prevent people from planning:
❌ Common Myths
- "I'm too young to need a will.": Accidents and illness don't discriminate by age.
- "I don't have enough assets." Even modest estates benefit from planning. Probate costs are proportional to estate size.
- "My spouse will automatically get everything." As shown above, this is often wrong in California.
- "Estate planning is too expensive." The cost of dying intestate far exceeds the cost of proper planning.
Taking Action
If you don't currently have a will or living trust, you're allowing California law to make crucial decisions about your property and your children's future. The consequences affect your loved ones, not you.
Consider these questions:
- Do you want the state to decide who raises your children?
- Are you comfortable with intestate succession laws determining your heirs?
- Can your family afford a probate that often takes 12 to 18 months or longer?
- Will the people you love most be protected?
Don't Leave Your Family's Future to Chance
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Start Online →Frequently Asked Questions
What if I own property in multiple states?
Each state's intestate succession laws apply to real estate located in that state. A living trust can simplify multi-state property ownership.
Can I disinherit someone through intestate succession?
No. Intestate succession follows strict legal formulas. To disinherit someone (except a spouse, who has special protections), you need a will or trust.
How long does intestate probate take in California?
Often 12 to 18 months or longer, especially if there are disputes or complex assets. With a funded living trust, your successor trustee can transfer the trust's assets without going to probate court.
What happens to my pets?
Pets are considered property under intestate succession. They pass to heirs along with other property. A trust can provide specific instructions for pet care.
Are jointly owned assets subject to intestate succession?
It depends on how the property is titled. Joint tenancy with right of survivorship passes automatically to the surviving owner. Tenancy in common interests pass through intestate succession.
About the Author
Rozsa Gyene (State Bar #208356) is a California estate planning attorney whose practice includes living trusts, wills, and probate matters. Rozsa Gyene has been licensed to practice law in California since 2000.
