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A Guide to Intestate Succession in California: Who Gets What?

There are specific intestate laws in California that dictate how property is handled without the presence of a will. Here's what you need to know.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Intestacy is a legal term that describes the state or condition of an estate when a person passes away without a Will. Probate courts will use intestate succession laws to determine how the deceased person’s property will be administered and distributed. Each state has its own set of intestacy laws, so the outcomes and results will vary from state to state. Today we’re going to examine the intestacy laws of the Golden State. Keep reading to find out intestate succession California laws. In other words — who gets what?

What happens when someone dies without a Will in California?

When someone dies without a Will, their estate enters a condition called “intestacy.” This means that the probate court judges won’t have any sort of Will or Estate Plan to refer to help determine how the decedent would have wanted to distribute property or nominate as their Executor. 

Instead, the court is forced to use state intestacy laws to determine who should be appointed as the Executor, identify property and assets, and decide how they should be distributed and to whom. We talk more about the intestate succession process in this guide, so click on the link to learn more about intestate. 

When someone does without a Will in California specifically, then the California probate court must administer the estate without any information or last wishes from the decedent. They will distribute his or her property to their closest relatives in accordance with California intestate succession laws. You can review California’s intestate legislative information in detail here

Who inherits when there is no Will in California?

“Who inherits when there is no Will in California?” This is a common question that presides when a deceased loved one passes away, but leaves no Will. Naturally, family members are curious to know how the court system will administer the distribution of the deceased person’s assets and property.

Inheritance outcomes are largely influenced by family structure and other situational elements. We will review these shortly. Before we begin, it’s important to understand that California is a communal property state. This means that any property acquired between a married couple during their marriage is considered communal property. This property passes directly to the surviving spouse without question. Any other property is considered separate property. 

Here are just a few scenarios of how the property would be distributed based on intestate succession California laws:

  • If the deceased had no Will or Trust, and was married with no children, then the spouse inherits everything.

  • If the deceased had no Will or Trust, and was not married but had children, then the children would inherit everything.

  • If the deceased had no Will or Trust, and had living parents but had no spouse or children, then the parents would inherit everything.

  • If the deceased had no Will or Trust, and had siblings but no living parents, spouse, or children, then the siblings would inherit everything split amongst them equally.

  • If the deceased had no Will or Trust, was married and had one child or grandchild, then the spouse would inherit all of the community property and half of the separate property. The child or grandchild would inherit the rest. 

  • If the deceased had no Will or Trust, was married and had two or more children, then the spouse would inherit all of the community property and one-third of the separate property. The children would inherit the remaining two-thirds.

Other Important California Intestate Succession Rules

Earlier, we went over the difference between community and separate property, and how California is a community property state. This means that if the decedent has a surviving spouse, then they will automatically inherit all of the community property. There are other important California intestate succession rules to know about as well. Here is a summary:

  • Survivorship period: Let us say that a married couple gets into a car accident. The husband passes away at the scene. However, the wife survives but is in a critical state in the hospital and passes away several days later. It does not make administrative nor practical sense to bequeath property to the technically “surviving” wife only for her to pass away soon after. Therefore, California’s intestate succession statutes include a survivorship period where a person must outlive the decedent by 120 hours.

  • Half-relatives: Any “half” relatives are treated as a “whole” relative through the lens of intestacy. A common example is a set of half-siblings that share a parent. They are each equally entitled to property belonging to their parent following their death.

  • Posthumous relative: Any relative that was conceived before the decedent’s death still stands to inherit as if they had been born while the decedent was alive. A great example is the unborn child of someone who passed away. Even though they were born after their parent passed away, they are still entitled to their inheritance as if they were alive at the same time.

  • Immigration: Whether or not a relative is a citizen or legally present in the U.S. does not affect their inheritance rights. Any relative will receive their rightful share of inheritance regardless of their immigration or naturalization status, or location.

  • Advancement rule: Gifts that were given to relatives by the decedent during their lifetime will not deduct from that relative’s share of the inheritance. An exception is made if either the decedent or the relative admits the gift in writing and states that the gift should be deducted from the inheritance.

  • Slayer rule: Are you worried that your inheritance could possibly go to the person who murdered you? Don’t worry, it won’t. The California probate code states that someone who kills you with intent will not receive any share of your property. 

Can intestate succession in California be disputed?

In short, you cannot dispute any ruling made by probate proceedings that followed intestate succession laws. Intestate succession laws serve as a judicial safety net in the absence of a Will or Estate Plan.

These laws were created precisely such that inheritances are distributed to relatives in the most just and fair way possible. The court follows a priority list when determining who should receive what, and how much. If the decedent was married, then their surviving spouse would receive the largest share of the inheritance. The surviving child or grandchild is prioritized next, and then the parents. Larger and more complex families can lead to complicated dynamics. 

Although the outcome of how inheritances are divided may leave someone upset, they generally cannot dispute the decision. This prevents a family member from unfairly attempting to claim inheritance shares that were not rightfully theirs. 

Avoid Intestate by Updating Your Will Today

Intestate succession in California is an important legal process that is used to adjudicate how an estate should be distributed, when the deceased person left no Will or Estate Plan. Although these laws are designed to distribute inheritances in as just and fair ways as possible, no system is perfect or without flaws. Intestate succession laws often remove the human and sometimes contrived element when it comes to family politics and dynamics. Therefore, intestacy laws do not always fit neatly into every scenario or circumstance, and often have blind spots.

For instance, what if the decedent and their surviving spouse were fighting and were in the middle of discussing divorce at the time of death? What if the decedent and their only child were estranged from one another? In cases such as these, intestacy laws may not work in favor of what the decedent would have wanted to happen. 

This proves the point that establishing a Will is critical. If you want to have any say over how your legacy is passed on to your loved ones, you have the opportunity to have a voice post-posthumously. By establishing a valid Will before death, the probate court must legally give consideration to your final wishes. Not only will this give you peace of mind, it can relieve a large burden from your loved ones.

The absence of a Will following a loved one’s death can cause confusion, uncertainty, and at worse, in-fighting between relatives. Death is stressful, and adding inheritances to the mix can cause tensions to overflow. You can nip any doubts or conflicts in the bud by documenting your intentions for how your inheritance should be distributed in writing. Further, a Will is a legal document that cannot be overruled or manipulated by anyone other than yourself. 

Not sure how to create a Will? Don’t worry, we can help you with that! You may be pleased to hear that creating a Will doesn’t have to be the expensive, complex, and laborious process that it’s often made out to be. At Trust & Will, we’ve created an easy-to-use platform that allows you to create a Will online within a few minutes. All you have to do is follow our guided questions, which will in turn help you create your document. Even if you don’t feel fully ready to establish your Estate Plan, it is always better to start a foundation that you can build upon as you gain experience. That way, if anything were to happen, you’ll have had something in place and help your loved ones avoid dealing with an intestacy scenario. Giving everyone peace of mind is well worth the effort. 

Take our free quiz to see where you should get started, or compare our different estate planning options. Get started today!

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