When a California resident dies without a valid Will or trust, state law steps in and decides who inherits, in what shares, and on what timeline. This default system is called intestate succession, informally called a “Probate Proceeding,” and it operates under the California Probate Code regardless of what the family believes the decedent would have preferred or “last wishes” by the decedent.
Most Californians assume that if they die without a Will, their assets will simply pass to their spouse or children in the way they would have wanted. The reality is much more complicated, very expensive and often surprising.
If you have not yet put a plan in place, understanding what happens by default is the first step toward deciding whether the State’s plan matches your own. As we often say, people do not plan to fail, but they do often fail to plan. Comprehensive estate planning exists precisely to replace these default rules with your own choices, saving your family significant time and money.
What Does It Mean to Die “Intestate” in California?
A person who dies without a valid Will is said to have died intestate. In that situation, California Probate Code sections 6400 through 6414 govern how the decedent’s property is distributed. The court appoints a Personal Representative, called an Administrator when there is no Will, and that person is responsible for inventorying assets, paying debts, and distributing what remains to the heirs identified by statute.
Two important points are often misunderstood. First, dying intestate does not mean assets go to the State of California. The State only takes property (a process called escheat) when no living relatives can be found anywhere in the statutory chain of inheritance. Second, intestate succession always guarantees a full Probate Proceeding.
Community Property vs. Separate Property: The Critical Distinction
California is one of nine community property states, and this status fundamentally shapes how intestate succession works. Before the court can distribute anything, every asset must be classified as either community property or separate property.
- Community property: Generally, any asset acquired by either spouse during the marriage through labor, earnings, or income, while domiciled in California. Each spouse owns an undivided one-half interest.
- Separate property: Assets owned before marriage, anything received during marriage by gift or inheritance, and generally the rents, issues, and profits derived from those separate assets.
- Quasi-community property: Property acquired while the couple lived in another state that would have been community property had it been acquired in California. For intestate succession purposes, it is generally treated like community property.
The classification matters because the surviving spouse’s share is calculated very differently for each category. Misclassification, or the absence of records that would allow proper classification, is one of the most common sources of dispute in intestate estates.
How a Surviving Spouse Inherits Under California Intestate Succession
Community Property
Under Probate Code section 6401, the surviving spouse inherits 100 percent of the decedent’s one-half community property interest. Combined with the spouse’s own one-half interest, the surviving spouse ends up owning all of the community property outright. This is the one straightforward rule in the entire intestate framework.
Separate Property
Separate property is where the surprises begin. The surviving spouse’s share depends entirely on which other relatives also survive the decedent.
| Surviving Relatives (in addition to spouse) | Spouse’s Share of Separate Property |
| No issue (children or grandchildren), parents, siblings, or issue of siblings | 100 percent (spouse takes all) |
| One child, or the issue of one deceased child | One-half (1/2) |
| Two or more children, or one child and the issue of a deceased child, or the issue of two or more deceased children | One-third (1/3) |
| No issue, but at least one surviving parent or issue of a parent (siblings, nieces, nephews) | One-half (1/2) |
The remainder of the separate property passes to the children, parents, or other relatives identified above, in the same proportions. The result is that a surviving spouse who assumed they would inherit everything may instead share ownership of the family home or investment accounts with in-laws or stepchildren they had not anticipated.
What If There Is No Surviving Spouse?
When the decedent leaves no surviving spouse, or for the portion of separate property that does not pass to a spouse, Probate Code section 6402 directs distribution down a strict order of priority:
- To the decedent’s issue (children, then grandchildren, then great-grandchildren), taken by right of representation.
- If no issue, to the decedent’s parents equally, or to the surviving parent.
- If no parents, to the issue of the parents (the decedent’s siblings, nieces, and nephews) by right of representation.
- If none of the above, to the grandparents equally, or to the issue of the grandparents.
- If none of the above, to the issue of a predeceased spouse.
- If none of the above, to next of kin in equal degree.
- If no relatives can be found, the property escheats to the State of California.
California law also requires that an heir survive the decedent by at least 120 hours under Probate Code section 6403. If an heir dies within that window, they are treated as having predeceased the decedent for inheritance purposes.
Who Does Not Inherit Under California Intestate Succession
Some of the most painful intestate outcomes involve people who, by statute, receive nothing despite a close relationship to the decedent. The default rules typically exclude:
- Unmarried partners: Long-term romantic partners, including those who have lived together for decades, have no statutory right to inherit. Registered domestic partners are an important exception and are treated similarly to spouses under California law.
- Stepchildren: A stepchild typically does not inherit unless they were legally adopted, or unless the narrow doctrine of equitable adoption applies based on a clearly established parent-child relationship.
- Friends, charities, and chosen beneficiaries: None of these can inherit through intestacy. They can only receive assets through a properly drafted Will, trust, or beneficiary designation.
- Foster children: Generally excluded unless the legal requirements for equitable adoption are satisfied.
By contrast, adopted children inherit equally with biological children, half-blood relatives inherit equally with whole-blood relatives, and a child conceived before the decedent’s death but born afterward (a posthumous child) is treated as having been alive at the time of death.
Intestate Succession Almost Always Means a Full Probate Proceeding
When there is no Will and no trust, the family typically must open a Probate Proceeding in the Superior Court of the county where the decedent lived. Probate in California is a public, court-supervised process that typically takes 12 to 18 months or longer even for non-contested or simple estates, with statutory attorney and executor fees are calculated as a percentage of the gross value of the estate, not the net equity. As an example, a home valued at 1.0m with a mortgage of 900k, producing net equity of 100k – the statutory attorney fees are based on the gross value of 1.0m = $23,000.00.
California offers limited simplified procedures for smaller estates. Under Probate Code section 13100, personal property below a statutory threshold (currently $208,850 as of April 2025) may be collected by utilizing an affidavit of small estate. A separate simplified petition exists for a primary residence valued at or below $750,000 under recent updates. These procedures still require legal steps and are not a substitute for a comprehensive estate plan, but they can reduce friction for very small estates.
For most California families, especially those who own a home in this region, the gross value of the estate exceeds the simplified-procedure thresholds, which means full Probate is unavoidable when there is no Living Trust in place. A properly funded Living Trust avoids Probate entirely, typically allowing administration to be completed in roughly 40 days without court supervision.
Real-World Scenarios: How Intestate Succession Plays Out
Scenario 1: Married with Children From a Prior Relationship
A husband dies without a Will, leaving his current wife and two children from a previous marriage. The couple owns a home purchased during the marriage (community property) and the husband owns a separate brokerage account he funded before the marriage. The wife inherits the entirety of the community property home. However, she only receives one-third of the separate brokerage account, with the remaining two-thirds split between the husband’s two children. The wife may now find herself co-owning assets with stepchildren she has limited contact with.
Scenario 2: Married Couple with Home Owned by One Person
A married couple, no children together, husband has three children from a previous marriage, husband held title to the home he shared with his wife and the husband dies without a Will and Trust. In this instance, the home is the husband’s separate property which will have to pass through the probate proceeding. There are no other assets of the probate estate and the widowed wife wishes to remain in the home; she will have to buy out her step-children for 2/3rds of the equity of the home. This often forces the surviving spouse into a very difficult position, often having to leave the home they have resided in for years if not decades.
Scenario 3: Unmarried Long-Term Partners
Two partners have lived together for 25 years but never married and never registered as domestic partners. One partner dies intestate. The surviving partner inherits nothing under California law, regardless of how long the relationship lasted or what the decedent verbally promised. The decedent’s estate passes instead to parents, siblings, or more distant relatives. More often than not, this results in a swift expulsion from the property so the intestate beneficiaries can sell the home to gain the money.
Scenario 4: Single Parent of Minor Children
A single mother of two minor children dies without a Will and without naming a guardian. The children inherit her estate equally, but because they are minors, the court must appoint a guardian of the estate to manage their inheritance until they each reach age 18. Perhaps worse than making the money unavailable until the child turns 18, all of the money will be delivered to the child when reach the age of 18. This is often a bad situation made worse.
The court also decides, with input from family members, who will raise the children. The mother’s preferences, however clearly expressed verbally, carry no legal weight.
Frequently Asked Questions
Does my spouse automatically inherit everything if I die without a Will?
Not necessarily. Your spouse inherits all of the community property, but the share of your separate property they receive depends on whether you also leave behind children, parents, or siblings. In many cases, your spouse will share ownership of separate-property assets with these other relatives. In these days of blended families, very often the step-children of the surviving spouse will inherit.
What happens to my minor children if I die without a Will?
The probate court will appoint a guardian for both the person and the estate of your minor children. Without a Will or formal Nomination of Guardian nominating a guardian, the court selects one based on family input and the best interests of the child. Disputes between family members can lead to foster care. Any inheritance is held under court supervision until each child turns 18, at which point they receive the full balance outright.
Can my unmarried partner inherit if we have lived together for years?
Under California intestate succession, an unmarried partner has no statutory right to inherit, regardless of the length or nature of the relationship. There is no Common Law Marriage in California. Registered domestic partners are treated similarly to spouses, but cohabiting partners without that legal status are excluded. A Will, trust, or beneficiary designation is required to provide for an unmarried partner.
If I have a Will, can my family avoid Probate?
A Will alone does not avoid Probate. A Will is a set of instructions to the Probate Court about how you want your assets distributed. To bypass Probate, assets need to be held in a properly funded Living Trust, or pass through non-probate transfer mechanisms such as joint tenancy or beneficiary designations.
How long does intestate Probate take in California?
Most intestate Probate Proceedings take 12 to 18 months from filing to final distribution. Contested estates, estates with complex assets, or estates with hard-to-locate heirs can take significantly longer.
Don’t Let the State Decide Your Family’s Future
California’s intestate succession rules were written to provide a default outcome for those who never put a plan in place. They were not written to reflect your family, your relationships, or your wishes. For most families, the default outcome is not the outcome they would have chosen, the cost of the resulting Probate Proceeding falls squarely on the people they leave behind and the costs are typically 10 times what it would be to put a proper plan in place to avoid the probate proceeding.
At the Law Offices of David R. Schneider, APC, every client meets directly with David to discuss their family situation, their goals, and the planning options that fit. With over 27 years of experience guiding California families through estate planning, trusts, and probate, David takes the time to listen between the lines and design a plan that reflects what matters most to you.
Schedule your free, no-obligation consultation today by calling (805) 374-8777 or reaching out through our contact form to learn more about how we can help your family avoid the uncertainty of intestate succession.