California Intestate Succession: Who Inherits Without a Will?
Most people assume their family would figure it out. That their spouse would get the house, their kids would split the rest, and everything would work itself out the way they intended. In California, that assumption is often wrong.
When someone dies without a valid will or trust, California law decides who gets what. This is called intestate succession, and the distribution formula is fixed by the California Probate Code. It does not consider what you actually wanted. It does not account for family dynamics, estranged relatives, or the fact that you would never in a million years have chosen a particular outcome. The law applies the same formula to everyone.
Understanding how intestate succession works in California matters whether you are dealing with a loved one's estate right now, or whether you are reading this because you realize you do not have a plan in place. Both are important reasons to understand exactly what happens.
What Is Intestate Succession?
Intestate succession is the legal process California uses to distribute a deceased person's assets when they die without a valid will or trust. The word intestate simply means dying without a will.
The California Probate Code establishes a priority list of heirs (called intestate heirs) who are entitled to inherit. This list moves through family relationships in a specific order, and the distribution formula depends on whether each asset is community property or separate property.
Everything passes through the probate court. There is no shortcut, no private process, and no way to avoid it once a person has died intestate with assets that require distribution.
Community Property vs. Separate Property: Why It Matters
California is a community property state. This distinction is critical to understanding who inherits what under intestate succession rules.
- Community property: Assets acquired during the marriage by either spouse. This includes income earned during the marriage, real estate purchased during the marriage, and most financial accounts funded during the marriage.
- Separate property: Assets owned before marriage, received as a gift or inheritance during the marriage, or acquired after legal separation. Separate property stays separate even during a marriage, as long as it is not commingled with community property.
The reason this matters for intestate succession: community property and separate property follow different distribution rules. Your surviving spouse may receive all of your community property but only a portion of your separate property, depending on what other relatives survive you.
California Intestate Succession: Who Inherits and How Much
The table below shows how California distributes assets under intestate succession based on who survives the deceased.
| How Representation Works in California |
|---|
| California uses a concept called 'representation' (per stirpes) when a direct heir has already died. For example, if your child predeceased you, that child's share passes to their children (your grandchildren) rather than being redistributed among your other children. |
| This can produce outcomes that are very different from what most people expect. If you had two children and one predeceased you leaving three grandchildren, that one child's share of your estate would be split three ways among those grandchildren while your surviving child receives the full other half. |
What Intestate Succession Does Not Cover
Not every asset goes through intestate succession. Some assets pass outside of probate entirely, regardless of whether you have a will. Understanding this distinction is important because it affects the full picture of what your family receives.
Assets that typically pass outside of intestate succession:
- Life insurance policies: Pass directly to the named beneficiary on the policy.
- Retirement accounts (401k, IRA): Pass directly to the named beneficiary.
- Joint tenancy property: Passes to the surviving joint tenant automatically.
- Payable-on-death (POD) accounts: Pass directly to the named recipient.
- Assets held in a living trust: Pass according to the trust terms, entirely outside of probate.
This is one of the reasons a living trust is such a powerful planning tool. Assets properly held in a trust bypass intestate succession entirely. They also bypass probate. Your family receives them on your timeline, not the court's.
Who Does Not Inherit Under California Intestate Succession?
This is where the law can produce outcomes that genuinely surprise families.
- Unmarried partners: California intestate succession does not recognize unmarried partners, regardless of how long you have been together or how committed your relationship is. A domestic partner registered with the state is treated similarly to a spouse, but an unmarried partner with no registration has no intestate inheritance rights.
- Stepchildren: Stepchildren do not inherit under intestate succession unless they were legally adopted.
- Close friends: No matter how important someone is in your life, they have no standing under intestate succession.
- Estranged relatives: Relatives you have not spoken to in decades can still inherit under intestate succession if they fall within the priority list and no closer relatives survive you.
- Charities or causes: You cannot leave anything to a charity through intestate succession. Those intentions require a will or trust.
This is the gap that estate planning closes. The law has no way of knowing what you actually wanted. Only a valid will or trust can reflect your real intentions.
What Happens to Minor Children Under Intestate Succession?
If minor children inherit assets through intestate succession, the court appoints a guardian of the estate to manage those assets until the child turns 18. At 18, the child receives the full inheritance outright, with no conditions, no guidance, and no structure.
The court also appoints a guardian of the person if both parents have died and no guardian was named in a valid will. The court will do its best, but the outcome may not reflect who you would have chosen.
A properly drafted estate plan (with a living trust and a will that names a guardian) gives you control over both of these decisions. Without one, those decisions belong to a judge who does not know your family.
Intestate Succession Means Probate: Here Is What That Costs
Intestate succession in California moves through the probate court. For most estates with real property or significant assets, this means:
- 12 to 18 months of court proceedings minimum.
- Statutory attorney and executor fees calculated as a percentage of the gross estate value.
- Public court filings, your family's financial situation becomes a matter of public record.
- No control over timing, distribution, or process.
A living trust avoids all of this entirely.
Frequently Asked Questions
Does California recognize common law marriage for intestate succession purposes?
No. California does not recognize common law marriage. An unmarried partner, even one who has lived with you for decades, has no inheritance rights under California intestate succession law unless they are a registered domestic partner. This is one of the most common and painful surprises families face when a partner dies without a plan.
What if I have a will but it is found to be invalid?
If a will is challenged successfully and declared invalid by the court, the estate is treated as if the will never existed. California intestate succession rules then apply to all assets that would have passed under that will. This is why proper drafting and execution of estate planning documents matters.
Can I write my own will in California to avoid intestate succession?
California recognizes holographic wills (handwritten, dated, and signed documents) under certain conditions. However, a holographic will still goes through probate, does not avoid the probate process, and is frequently challenged or found invalid due to missing elements. A properly drafted will executed with witnesses, or a living trust, provides significantly stronger protection.
What happens to a jointly owned home under intestate succession?
It depends on how title is held. If the home is held in joint tenancy with right of survivorship, the surviving joint tenant inherits the full property automatically outside of probate. If it is held as tenants in common, the deceased person's share becomes part of the intestate estate and passes through probate according to California succession rules.
How long does intestate succession take in California?
The California probate process, which intestate estates must go through, typically takes 12 to 18 months for straightforward estates. Complex estates, family disputes, or incomplete records can extend this significantly. During that time, assets are generally frozen and unavailable to your family.
Is there any way to avoid intestate succession after someone has already died without a will?
Options are limited once someone has died without a plan. For very small estates, California's simplified small estate affidavit process applies to estates under $184,500 (verify current threshold). For larger estates, full probate is generally required. The time to plan is before death, not after.
Your Family Deserves Better Than the Default
Intestate succession is California's plan for your estate. Not yours.
It is a formula written by the legislature that applies equally to everyone, regardless of family dynamics, personal wishes, or what you actually intended. It leaves out people you love. It includes people you may have never wanted to benefit. And it puts everything through a public court process that takes over a year and costs your family real money.
The good news is that avoiding this outcome is not complicated. A properly drafted estate plan (at minimum a will that names a guardian for your children, and ideally a living trust that avoids probate entirely) puts you back in control.
If you do not have a plan in place, or if you are dealing with a loved one's estate right now and are not sure where to stand, I am here to help. Start with a free consultation and we will figure out together what your family needs.
This article is a service of Brittany Cohen, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Comprehensive Estate Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Comprehensive Estate Planning Session and mention this article to find out how to get this $750 session at no charge.
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