Free Consultation : 858.324.4296

What Happens if I Die Without a Will in California?

What does it mean to die “intestate” in California?

What happens when someone passes away without a will in California? A person who passes away without first establishing a valid will is said to die “intestate.” When one dies without a valid will, a person’s estate is passed to their heirs according to California laws of intestate succession, which are found in the California Probate Code. The court supervises the transfer of the person’s remaining property and assets through a legal process known as probate.

Certain Property Exempt from California Intestate Succession:

It should be noted that certain assets may be exempt from passing according to the laws of intestate succession. These are assets which pass automatically without court assistance, usually due to the title in which they are held. These assets may include various jointly held accounts, or accounts with a named pay on death beneficiary, life insurance proceeds, certain retirement accounts with a designated beneficiary, and certain forms of jointly owned real estate.

Generally speaking, all other remaining assets of a person who passes away without a will are required to go through the court supervised process of probate, and the assets are then distributed according to local intestacy law.

California Intestate Succession Law:

According to the California laws of intestate succession, when one dies without a will, their probate estate is distributed by the court as follows:

If Married at the Time of Death:  If the decedent was married at the time of death, it must first be determined whether the property is community property. California is a community property state, and accordingly there is a legal presumption that property which is acquired during the time of the marriage is considered community property. On the other hand, separate property refers to property acquired before the marriage, property acquired through gift or inheritance, property purchased with separate property funds, or property acquired after a couple has separated.

  • If survived by only a spouse, with no issue (lineal children, grandchildren, or great grandchildren, etc.), parents, siblings, or issue of siblings, then the spouse receives 100% of the community property and 100% of the separate property
  • If survived by a spouse, with children, or deceased children’s issue, then the spouse receives 100% of the community property, and between 1/2 and 1/3 of the separate property, depending how many children there are. The remaining 1/2 to 2/3 of the property is distributed per stirpes to the children or deceased children’s issue.
  • If survived by a spouse, with no issue but with a parent or parents, then the spouse receives 100% of the community property, and 1/2 of the separate property. The remaining 1/2 is distributed to the parent(s).
  • If survived by a spouse, with no issue, no parents, but with a sibling or siblings, then the spouse receives 100% of the community property, and 1/2 of the separate property. The remaining 1/2 is distributed to the sibling(s).

If Unmarried at the Time of Death: If the decedent was not married at the time of death, property is distributed as follows:

  • If survived by issue (lineal children, grandchildren, or great grandchildren, etc.), the issue receive 100% of the property and take equal shares if in the same generation
  • If survived by a parent or parents, with no issue, the parents receive 100% of the property.
  • If survived by siblings, with no issue and no parents, the siblings receive 100% of the property and take equally if of same degree of kinship to the decedent
  • If survived by grandparents or issue of grandparents, with no issue, parents, or siblings, the grandparents, or grandparents’ issue if the grandparents did not survive, receive 100% of the property, taking equal shares if of the same degree of kinship to the decedent.
  • If survived by issue of a predeceased spouse, with no surviving issue, parent, or issue of parent, grandparent or issue of grandparent, the issue of the predeceased spouse receive 100% of the property, taking equal shares if of the same degree of kinship to the predeceased spouse.
  • If survived by next of kin, with no surviving issue, parent, or issue of parent, grandparent or issue of grandparent, or issue of the predeceased spouse, then the next of kin receive 100% of the property, taking equal shares if of the same degree of kinship to the decedent.
  • If survived by parents of a predeceased spouse, or issue of the parents of a predeceased spouse, with no surviving issue, parent, or issue of parent, grandparent or issue of grandparent, or issue of the predeceased spouse, or next of kin, then the parents of the predeceased spouse, or issue of the parents of the predeceased spouse, receive 100% of the property, taking equal shares if of the same degree of kinship to the predeceased spouse.

As indicated above, portions of an estate may be exempt from passing according to the laws of intestate succession, even though a decedent did not execute a will. However, the majority of an estate without a will or trust is usually subject to intestacy laws, and must pass through the Court’s probate system. It is also important to note that while a valid will provides the Court with direction as to how to distribute your assets, a will does not automatically prevent your estate from going through the probate process. To learn more about the difference between transferring property through a will or a trust, see our recent article here.

If you need assistance in learning how to avoid probate and preventing the state from controlling the distribution of your assets, please contact the Law Office of Christine Padilla for a complimentary estate planning consultation. We are also available to assist those who need guidance through the probate process, under the circumstances where a loved one has passed without a valid will or trust in place.

Leave a Reply

Your email address will not be published. Required fields are marked *