What is California intestate succession? Do spouses and children automatically receive everything if there’s no Will? What should I do if my parent died without a Will? Who inherits if there’s no Will? When do I have to go to probate court?
by James L. Cunningham Jr, Esq.
So, a parent or loved one has died and left no Estate Planning documents. Not only did they not create a Living Trust, they never managed to write up and sign a Last Will and Testament.
In the eyes of the law, your loved one has “died intestate.”
What happens next? Who is entitled to inherit the property? What steps do you need to take to ensure that your family does the right thing by the loved one who passed away—and the people left behind?
Well, I’ve got good news and bad news.
Let’s start with the bad news: according to California intestate succession law, it’s not possible to set up an Estate Plan for someone after they’ve passed away (or even if they have become mentally incapacitated). That ship has sailed. You’re almost certainly on your way to Probate Court, and you should read our article on Probate carefully.
In Probate Court, a judge will attempt to properly implement California intestacy laws. Each state has a set of such laws that establish how an intestate estate should be legally distributed among heirs. Here’s a link to download key portions of the California intestate succession codes, but I suggest you read this article before diving into the complex legal language you will find in the code.
The good news is that a qualified attorney can help you make the most of the cards you’ve been dealt, and perhaps most importantly, will help prevent you from making mistakes that could lead to legal consequences or family battles. I’m not saying that an attorney can fix everything. But it’s definitely a better bet to have a professional on hand to help you through what can be an extremely frustrating and time-consuming process.
At CunninghamLegal, we offer expert probate representation, or we can refer you to a specialist who deals with your specific issues. Consider scheduling a call with us.
What is intestate succession?
Intestate Succession in California refers to the legal procedure utilized for the distribution of property and assets when no valid will exists or when the will in place does not assign specific assets and properties. More specifically, intestate succcession refers to the legal order of priority in which people inherit an estate’s assets.
Intestacy is surprisingly (and sadly) common. In fact, 55 percent of people die without a Will to provide any guidance. That’s more than half of the population leaving their heirs without guidance and at the mercy of the legal system. Despite the clarity of CA intestate successtion laws, disagreements among heirs may arise, especially if there’s a substantial amount of money on the line.
I’m not saying this to scare you. But if your loved one died without a Last Will and Testament in place, I want you to be prepared for what could happen.
What can happen when someone dies intestate?
Here’s a hypothetical case.
Fred, 68, recently passed away from a massive heart attack. Despite warnings from his doctors about a heart condition, Fred had spent the last twenty years boasting about having “a ticker that wouldn’t stop.” And it didn’t stop—until it did. There was no warning. Fred felt fine in the morning and was dead by the afternoon.
Fred and his partner, Sheila, had always put off making an Estate Plan. They figured they had plenty of time to do it and always told each other that they’d do it if one of them got sick. After all, they were both still in their sixties! So there was no Living Trust, and no Last Will and Testament in place.
Sheila was Fred’s third long-term partner. He had three children with his first wife, now divorced thirty years ago. He had two former stepchildren from his second wife, who had died eight years before he did. He hadn’t talked to his stepchildren in years, and his relationship with his own kids was strained because they thought Sheila, who was much younger than Fred, was a gold digger.
Sounds like a mess, doesn’t it? Well, it’s about to get even messier.
Even though Fred and Sheila had been together for eight years, they’d never married (Fred always said he was smart enough not to make the same mistake three times). The house that Fred and Sheila shared was only in Fred’s name. But they shared a joint checking account where they kept a significant chunk of money. Fred had a pontoon boat that was mostly paid off, but not entirely. That loan was in both Fred’s and Sheila’s names.
Where do the assets go? And the debts?
Fred’s three natural children expect to inherit Fred’s estate in full since Fred and Sheila weren’t married. They quickly meet and plan to sell Fred and Sheila’s house, effectively attempting to evict Sheila. They also tell Sheila she isn’t allowed to use the joint checking account, because it belonged to the estate. In fact, Sheila probably would have the right to use the money in the joint account, but she isn’t sure, so she’s suddenly in limbo.
Then, one of Fred’s stepchildren makes the claim that he and Fred had a long-term relationship “like father and son.” The stepson wants a significant share of the estate as well, and he’s prepared to make that argument in front of a probate judge. (If the stepchild is under the age of 18 and the reason Fred didn’t adopt the stepchild was because the stepchild’s natural father wouldn’t consent to Fred’s adoption of the stepchild, the stepchild may indeed be treated as a child of Fred’s. But once over the age of 18, that argument is unlikely to prevail, as stepchildren are not automatically recognized as “children.” Even so, the question could tie up the estate in litigation for some time.)
This entire mess is getting worse, and likely to be in probate court for well over a year. As of this writing, even simple probates are running on average about 16 months in California courts.
A full Estate Plan including a Living Trust would have made Fred’s wishes clear and easily enforceable. A Last Will and Testament would have at least made Fred’s wishes known to a judge (probate would still be necessary without a Living Trust) and could have shed light on whether he planned to leave anything to his former stepson. But Fred didn’t have any of that.
Now Sheila has a huge legal and financial problem on her hands—one that’s probably going to result in her losing her home, if not more. If she wants her share of the joint account, she may have to fight for it in court. The other siblings may soon be duking it out as well.
Proper planning on Fred’s part would have made life after his passing far less contentious and stressful for everyone involved.
But here we are.
Who inherits in California if there’s no Will?
If a person made no Will before they died in California, laws of intestate succession will apply. These rules are very specific about who inherits and asset distribution, they are enforced in probate court, and there’s little-to-no wiggle room in them.
How is property ownership defined for an intestate succession?
To understand California probate code / intestate succession laws, you need to understand property ownership in California. Remember, “property” doesn’t just refer to real estate in this context. Generally, it refers to any possessions or assets held by the deceased (there are certain limitations to this, but we haven’t the space to discuss those limitations in this article).
What is the difference between community property and separate property in a California marriage?
If you’re married, your property falls into one of two broad categories:
- Community property. This is property owned by people who are married or registered domestic partners. California is a community property state, meaning that all assets (with some important exceptions) acquired after a marriage or registered domestic partnership is considered to be owned by both partners. If that property is real estate, however, much will depend on how the property is actually titled, because how the property is titled at death controls who gets the property. Titling also affects other assets like bank accounts and brokerage accounts.
- Separate property. This is property that a spouse owned before the marriage or registered domestic partnership, or after a legal separation. Inheritances and gifts are also generally considered separate property, even if they were received after the marriage or domestic partnership began. Remember, however, that separate property can easily become (or be “transmuted”) to community property if commingled.
It’s important to remember that community property only applies to marriages and registered domestic partnerships. California has no common-law marriage statute, so the length of the relationship has no bearing here. If you haven’t entered into a marriage or registered with the State of California as Domestic Partners, there’s no community property and long-term, non-registered domestic partners are not in the line of succession. This fact may come as a rude surprise to many long-term but unregistered partners like the unlucky Sheila.
Are gifts considered “an advance on an inheritance” in California?
In general, no. Any gifts made by the deceased before they died are generally not considered an “advance on an inheritance” in California unless that was specified as such in a contemporaneous writing by the deceased. So even though Fred gave a fancy car to one of his children right before he died, the others can’t say that should be deducted from the lucky child’s inheritance.
How is the California intestate succession law structured?
Now that we’ve gotten basic definitions out of the way (and these are only the basics, ownership issues can be far more complicated), here’s how the intestacy succession laws, like California next-of-kin order, is structured. In these laws, the term “issue” refers to all the natural or legally-adopted children of a person.
- If you’re married with no adopted or biological children, your spouse will inherit all community property and one-half of your separate property. Your parents (or your siblings, if your parents predeceased you, or the “issue” of those persons if they are deceased) will receive the other half of your separate property. If none of those close relatives or their “issue” (a legalese word for descendant, see above) exist, your spouse will get all separate property. Here’s the precise legal language in this situation regarding the separate property, to give you the flavor, from California Probate Code Section 6401(c):
- As to separate property, the intestate share of the surviving spouse is as follows:
(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one deceased child.
(B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.
- If you’re married with children, all your community property goes to your spouse. Separate property is divided between your spouse and children. If you have one child, that child will receive half of your separate property and your spouse will receive the other half. If you have two or more children, they will split two-thirds of your separate property and your spouse will receive one-third of the separate property.
- If you’re not married but have children, your children will split your assets evenly. If one of your children died before you, your grandchildren (issue) who are descendants of your deceased child will likely receive your deceased child’s share.
- If you’re not married and have no children, your assets are given to your closest living relatives, in order of: parents, siblings, grandparents, and then aunts, uncles, or cousins. Or their “issue” depending on degree of relation and who is still alive. There is even a California “Table of Consanguinity” that goes as far as your “Third Cousin Thrice Removed.”
The lines of succession can become quite complicated, depending on who is still living at the time of the loved one’s death, when exactly they died, how many children they had, and which of those “issue” are alive. For example, California Probate Code Section 6402(f) reads:
(f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.
Here again, is the link to download key portions of the California Probate Code for Intestate Succession [6400 – 6455], as last amended in 1993. When you read this, you will see why you will want a lawyer by your side as probate gets sorted out.
Do you believe that the deceased was estranged from someone on the intestacy succession list? Do you think the deceased would rather have left someone out of the succession order? Unfortunately, without a Will or Trust, this code lays out precisely how the probate judge will attempt to structure the inheritance.
If you’re dealing with a deceased parent’s estate and you think something will fall out wrongly, you should speak with an estate and trust specialist attorney as soon as possible. Although this succession order is set in stone, your lawyer may have options for how to limit any damage you see on the horizon.
Do all intestate estates have to go to probate?
No, but most intestate California estates are required to go through the probate process. Small estates — defined as being worth less than $184,500 as of 2022 — can be transferred by a summary probate procedure, which is less involved than the full probate process. However, any real estate holdings in California can easily top this amount. It’s best to assume that you will need to go through a full probate process rather than misjudging the size of the estate and getting surprised by probate later.
Let’s look at an example estate:
Joan recently passed away. She was predeceased by her husband but left two daughters and a son. She left the following assets:
- A two-bedroom, one-bath condo in Bakersfield assessed at $139,000.
- A late-model Toyota Camry that’s worth around $12,000.
- Jewelry that has been passed down from Joan’s mother, worth around $5,000.
- Bank accounts containing $9000.
- Other personal belongings totaling around $25,000.
Joan’s total estate is worth around $190,000, meaning that even such a modest estate will need to go through the full probate process. If Joan had remarried, the estate might only need a Spousal Property Petition (see below) if all assets pass to the husband under law or by will.
Always plan on probate when someone dies intestate, or even without a Living Trust, because chances are good that’s where you’re going to wind up.
What assets aren’t affected by intestate succession?
Even if there is no Will or Trust, certain types of assets do not need to go through probate and follow the intestacy laws, but you should still consult a qualified estate lawyer to make sure you are handling such assets properly.
Assets held as joint tenancy with right of survivorship can skip probate. However, holding property as joint tenants can have negative tax consequences for the person inheriting. On the other hand, sometimes it makes sense to hold property ass joint tenants. Lawyers are really good at saying “it depends”…and in this case it does in fact depend!
Property that is titled as community property must go through an abbreviated probate process – the Spousal Property Petition. Don’t assume that community property passes to the other spouse without needing to go through probate!
Typically, life insurance proceeds and retirement accounts do not follow the intestacy succession laws. That’s because these sorts of accounts usually have specified Beneficiaries named to inherit upon the original account holder’s death. By transferring these assets to the Beneficiaries at the time of death, such assets avoid the probate process. Remember, however, that the Beneficiaries themselves must initiate the process, nothing happens automatically.
During the probate process, someone will be named by the court as the “Personal Representative” of the estate. If there’s a Will, that’s usually the Executor. If there’s no Will, the court will simply choose someone. That person should immediately examine all accounts to see if “payable on death” (POD) or “transfer on death” (TOD) Beneficiaries were specifically named at the institution or financial company, and inform those Beneficiaries.
My parent died without a Will in California. What should I do now?
If your parent died without a Will or Trust, there are things you need to do immediately—along with things you should definitely not do. (If you are the successor Trustee to a Living Trust, you should read our article on how to administer a trust, which is a very different path).
Begin by reading our article on probate, then contact CunninghamLegal or a lawyer or law firm with experience in estates and trusts as soon as possible, and file a petition for probate. Our article on probate assumes a Will exists, but if there is no will, see Step 3 and file a petition for probate with the California Superior Court in the County where the deceased resided at the time of their death.
I know that a lawyer may seem like an added expense during a time when money already feels tight, but a good lawyer will save you much, much more than their fee. If you try to handle this on your own, the chances of things settling the way you want are much slimmer.
Let me tell you what you should not do. Except for a spouse taking possession of jointly held property (Joint Tenants or Community Property with Right of Survivorship, or a named beneficiary in a POD or TOD taking control of their share of an institutional asset), you should not, for example, take possession of the deceased’s cash, their car, or their house without going through a proper court probate process. Indeed, you could be prosecuted for taking those actions, and if you have siblings or others likely to inherit through the California intestate succession chart, they might choose to sue you.
Instead, you should work with a lawyer to inventory all assets, including assets that may not have to go through probate, and you should work with the lawyer to immediately begin probate.
Except for the specific situations mentioned above, you have no right to use of the deceased’s property until a probate court gives you that right. Take care.
What if I disagree with the way an estate is distributed or dispersed in probate?
Some of the decisions made during the probate process may upset you. It’s possible to contest the decisions made in probate, but the list of reasons you’re allowed to do so is pretty short — and “because I think I deserve more money” isn’t anywhere on it.
If you don’t think the estate is being dispersed properly, speak to your lawyer about it. They will be in the best position to help you determine whether things are being done fairly and according to the law—and if there is any recourse.
What can I do to make things easier for my own kids when I die?
If you are reading this article and you do not have a Will or Living Trust of your own, you should take it as a serious warning.
Make sure that your own Estate Plan is in shape so your kids don’t have to deal with the hassle of navigating California intestate laws during an already stressful period. They’ll undoubtedly be grateful that you were savvy enough to make plans for the inevitable.
A proper estate plan will include a Living Trust so that assets can be passed without any probate process at all. Learn about the whole California estate planning process here.
Estate plans also need to be reviewed regularly, because situations change, and a “stale” or outdated will or trust may still throw your estate into probate. You also need to review your named Beneficiaries for life insurance, annuities, retirement accounts, etc., so that they’ll go to the people you intend them to. And make sure those people know about these arrangements!
If you have no Will or Trust in place, be warned that the “easy” forms you find online aren’t enough, and can easily lead to serious errors and omissions in your planning. You need to work with a professional who takes into account your individual situation and crafts a valid, savvy Estate Plan that’s as unique as you and your loved ones.
No one else, and certainly not a computer program, can make those decisions properly with you.
If you’re a Californian and you’re looking for a law firm to help you with your Estate Plan, we invite you to consider CunninghamLegal. Please feel free to contact us if we can be of assistance.
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We look forward to working with you!
Best, Jim
James Cunningham Jr., Esq.
Founder, CunninghamLegal
We guide savvy, caring families in the protection and transfer of multi-generational wealth.
