Intestate succession in California refers to the probate process that distributes property and assets when someone dies without a will or when someone passes away and hasn’t included certain assets in the will or another estate planning instrument. When an estate becomes intestate, that estate is subject to intestacy laws, which are also known as California next-of-kin laws. In these situations, assets are distributed per a predetermined order defined by the state. Intestate succession is complicated, especially as family dynamics and situations evolve.
Whether you are an heir who is expecting an inheritance or an individual who has been tasked with serving as the executor, it is crucial to understand this process and the laws that govern it. Here is what you should know about California intestate succession.
What is the Law of Intestate Succession in California?
Intestate succession is a component of California inheritance law that accounts for situations in which someone passes away without leaving behind an estate planning document that outlines how they want their assets and finances distributed. Here’s what to know about the rules of intestacy.
Related Article: What is the Probate Process if You Die Without a Will or Trust?
Who Inherits When There is No Will?
When someone dies without a will, that is considered dying intestate, and the order in which people inherit depends on the laws of intestacy.
This distribution order operates under what is known as California next of kin order, meaning your spouse and those who share the closest blood relationship will inherit the most. But determining this order is more complicated than that.
Related Article: What Estate Planning Documents Should Each Spouse Have?
How is Next of Kin Determined During Intestate Succession in California?
The court determines who is next of kin during this process by carefully looking at the decedent’s remaining living family and who is closest to them in blood relation. Depending on who is still alive and how closely blood-related individuals are to the deceased, this guides who will be intestate heirs.
Generally, a surviving spouse is given the highest priority, and children are given the second highest, but there’s more to this order of inheritance than that, as it could potentially reach distant family. Here is a California intestate succession chart to illustrate what this order could look like for you.
| If one dies with… | Here’s what happens… |
| children but no spouse | children inherit everything |
| spouse but no children, parents, siblings, or nieces or nephews | spouse inherits everything |
| parents but no children, spouse, or siblings | parents inherit everything |
| siblings but no children, spouse, or parents | siblings inherit everything |
| a spouse and one child or grandchild | spouse inherits all of community property and 1/2 of separate property |
| a spouse and two or more children | spouse inherits all of community property and 1/3 separate party
children inherit 2/3 of separate property |
| a spouse and one child and one or more grandchildren from a deceased child | spouse inherits all of community property and 1/3 of your separate property
children inherit 2/3 of separate property |
| a spouse and grandchildren from two or more deceased children | spouse inherits all of community property and 1/3 of separate property
children inherit 2/3 of separate property |
| a spouse and parents | spouse inherits all of community property and 1/2 of separate property
parents inherit 1/2 of separate property |
| a spouse and siblings, but no parents | spouse inherits all of community property and 1/2 of separate property
siblings inherit 1/2 of separate property |
| no spouse, children, or parents | All community and separate property go to siblings, then nieces/nephews, then grandparents, then uncles/aunts, and then cousins |
| no relatives at all | All community and separate property are escheated to the state of California. |
This info is from California Probate Code Sections 6401 & 6402.
Still, understanding the nuances of inheritance laws without a will, especially once an estate undergoes intestate succession in California, is crucial to knowing what to expect and navigating challenges or surprises gracefully.
For example, do you know the distinction between community and separate property? What if new heirs or distant family surfaces as the court goes through the decedent’s bloodline? How do half-siblings factor into the equation? All of this is crucial to consider.
Further, step-children or foster children are notable omissions from this chart, and California probate law has recently adapted to give them more inheritance rights under intestate succession. Still, these rights are a somewhat gray area.
In some situations, if there is proof the deceased took a foster or step-child child in and treated them as their own, they may be entitled to the same inheritance as the blood children. There are other rules and laws that can influence this process, too, such as posthumous births.
Another notable omission from the chart is adopted children. When a parent officially adopts a child, they are treated by law as if they had been born to the adopting parents. As a result, they enjoy the same rights as biological children to inherit from their adoptive parents’ and their adoptive parents’ relatives.
Ultimately, understanding how to maneuver through and interpret these complicated rules is why working with a professional probate attorney is vital during this process.
What Assets Bypass Intestate Succession in California?
After understanding who inherits when someone dies without a will, it’s crucial to understand what assets bypass through intestate succession. Generally, per the rules of intestate succession in California, the following assets bypass this legal channel:
- Property transferred to a living trust
- Real estate with a transfer on death deed
- Life insurance proceeds with designated beneficiaries
- Vehicles with a transfer on death registration
- Payable-on-death bank accounts
- Security held in a transfer-on-death account
- IRA, 401(k), and other retirement account funds with named beneficiaries
- Property owned with someone else in joint tenancy
Related Article: What Type of Assets are Subject to Probate?
What to Do When Someone Dies Without a Will
If you are an heir, such as a surviving spouse or child, you likely do not have to do anything but wait for the probate process to distribute your inheritance.
Certified copies of the decedent’s death certificate are required to file a Petition for Letters of Administration with the court and begin the probate process.
If the court verifies that there is not a valid will, it appoints an administrator of the estate, and they will administer the estate per the laws of intestate succession in California.
As part of the process, the person serving as the executor or administrator should:
- Preserve the decedent’s assets
- Resolve all valid credit claims
- Take inventory of all the estate assets
- Prepare and file estate accountings with the court
- Serve as a liaison to the probate court
- Ensure they distribute assets promptly
How Does Probate Work Without a Will?
Generally, there is little practical difference between probate without a will and probate with one. The defining distinction to be aware of is that during the probate process without a will, the state will decide who will receive the estate per intestate succession laws.
Another difference to note is that because there is no will, the decedent did not designate an executor. Typically, a close relative like a surviving spouse or child will handle probate, but it is ultimately up to the court’s discretion. They choose who should take on this responsibility.
Still, things can get more complicated in your pursuit to receive your inheritance without a will to guide this process. For example, if the decedent left behind a complicated estate, owed substantial debt, or the court can’t locate heirs, this can elongate the process.
We advise working with a probate attorney throughout this process to navigate complex intestacy laws in California and, if necessary, defend your rights.
Related Article: What is the Probate Process?
What Are the Risks of Intestate Succession in California?
There are many risks of failing to leave behind estate planning documents, such as a will or trust, and allowing your estate to enter intestate. The biggest risk, however, is that you forfeit control of where your assets go.
Imagine you have a complicated family dynamic and you and your brother are not on good terms – maybe not even on speaking terms. If you have no living spouse, children, or parents and die without estate planning documents, this brother would then inherit your estate.
Ultimately, estate planning is about crafting your legacy, and when you fail to leave behind these documents, you have no control over the legacy you leave behind. This is why working with professionals to set up a will or trust and oversee your estate is crucial.
Do You Need Help Navigating Intestate Succession in California? Work with a Professional.
So, there you have it. Intestate succession is, typically, what happens if you die without a will in California. The laws that govern this process are complex, and it is crucial to work with a probate attorney to navigate them carefully for heirs and executors alike. Your first step should always be working with a seasoned probate attorney, and having CPA and fiduciary could also help immensely.
Just as importantly, if you still have the chance to create an estate plan that avoids the complex and less-than-ideal process of intestate succession in California, we strongly recommend creating one! Only an estate plan can ensure your final wishes are honored.
