Dying Without a Last Will and Testament in California

Understanding the Laws of Intestacy Succession

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When a California resident or a person who owns real estate located in California dies without having made a Last Will and Testament, the intestacy succession laws found in the California Probate Code will dictate who inherits the deceased person's California probate estate. Below is a summary of the California intestacy succession laws in various situations.

Deceased Person is Survived by a Spouse and/or Descendants and/or Parents and/or Siblings

Here is what will happen under the California intestacy laws if the deceased person is survived by a spouse and/or descendants (children, grandchildren, great-grandchildren, etc.), and/or parents, and/or siblings:

  • Survived by a spouse and children - In this case the surviving spouse will inherit all of the deceased spouse's community property and one-half (1/2) or one-third (1/3) of the deceased spouse's separate property and the children will inherit one-half (1/2) or two-thirds (2/3) of the deceased spouse's separate property, per stirpes.
  • Survived by a spouse and no descendants, parents or siblings - In this case, the surviving spouse will inherit the deceased spouse's entire probate estate.
  • Survived by a spouse and parent or parents and no descendants - In this case, the surviving spouse will inherit all of the deceased spouse's community property and one-half (1/2) of the deceased spouse's separate property and the parents will inherit one-half (1/2) of the deceased spouse's separate property.
  • Survived by a spouse and sibling or siblings and no parents or descendants - In this case, the surviving spouse will inherit all of the deceased spouse's community property and one-half (1/2) of the deceased spouse's separate property and the siblings will inherit one-half (1/2) of the deceased spouse's separate property.
  • Survived by descendants and no spouse - In this case, the deceased person's descendants will inherit the entire probate estate, per stirpes.

Deceased Person is Not Survived by a Spouse, Descendants, Parents or Siblings

If the deceased person dies without a will and is not survived by a spouse, descendants, parents or siblings, then the deceased person's property will pass to nieces and nephews, if any, otherwise to grandparents, aunts or uncles, great uncles or aunts, cousins of any degree, or the children, parents, or siblings of a predeceased spouse.

In the unlikely circumstance that the deceased person is not survived by any family members as described above, then the entire probate estate will escheat to the State of California.

What You Will Inherit From a California Intestate Estate

So exactly what will you inherit if your relative dies without leaving a Last Will and Testament and the relative was a resident of California or owned real estate located in California? Even if you determine based on the information presented above that you are entitled to an intestate share of your relative's estate, you may very well not inherit anything.

Why? Because your relative may have left all non-probate property or the debts your relative owed at the time of death may exceed the value of the probate estate which will make the estate insolvent. If you are not sure of your legal rights as an intestate heir in California, then consult with a California probate attorney to be sure.

The information contained in this article is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.