Imagine this scenario: A family is already dealing with the emotional burden of losing a loved one, when suddenly they’re thrown into a confusing legal process they never anticipated. Why? Because their loved one didn’t leave behind a will. This situation happens more often than you might think in California, and the consequences can add stress to an already difficult time.
When someone passes away without a valid will in California, their estate doesn’t simply go to their closest relative automatically. Instead, it enters a court-supervised process called probate, and the distribution follows California’s “intestate succession” laws. These predetermined rules might not align with what your loved one would have wanted—or what you expect.
Let’s walk through what actually happens during probate when there’s no will in California, who stands to inherit, and what you can do to prepare.
When There’s No Will: Welcome to Intestate Succession
When someone dies without a valid will in California, they are said to have died “intestate.” This means the California Probate Code—specifically sections 6400 through 6455—determines who gets what, regardless of what the deceased may have verbally expressed during their lifetime.
The California intestate succession laws create a fixed hierarchy of who inherits property. These laws attempt to distribute assets in a way the state legislature believes most people would want, prioritizing close family members. However, these predetermined distributions don’t account for unique family dynamics, personal wishes, or special circumstances.
Additionally, California’s status as a community property state adds another layer to intestate succession. Generally, a surviving spouse automatically owns half of all community property (assets acquired during marriage). The distribution of the deceased spouse’s half of community property, along with their separate property, follows specific rules we’ll examine shortly.
The California Probate Process Without a Will
The probate process in California follows these general steps when someone dies without a will:
1. Filing a Petition for Probate
Someone—typically a family member—must initiate the probate process by filing a petition with the Superior Court in the county where the deceased person lived. In this petition, since there’s no will naming an executor, the person filing typically requests to be appointed as the estate administrator.
This petition is filed using Judicial Council forms DE-111 (Petition for Probate) and DE-147 (Duties and Liabilities of Personal Representative). Court filing fees in California start at approximately $435, varying slightly by county.
2. Appointment of an Administrator
The court appoints an administrator to manage the estate through the probate process. Unlike an executor named in a will, an administrator is selected according to priority rules established in California Probate Code Section 8461, which generally follows this order:
- Surviving spouse or domestic partner
- Children
- Grandchildren
- Parents
- Siblings
- Other relatives according to intestate succession order
The administrator must post a bond unless all heirs waive this requirement. This bond serves as insurance to protect the estate from potential mismanagement.
3. Identification, Inventory, and Appraisal of Assets
The administrator must locate all assets owned by the deceased person, including:
- Real estate properties
- Bank accounts
- Investment accounts
- Vehicles
- Personal possessions
- Business interests
A court-appointed probate referee appraises non-cash assets. This formal inventory and appraisal must be filed with the court using form DE-160 within four months of the administrator’s appointment.
4. Notification of Creditors and Payment of Debts
The administrator must notify all known creditors and publish a notice in a local newspaper, giving creditors four months to submit claims against the estate. Valid debts must be paid from the estate assets before any distributions to heirs. These typically include:
- Final medical expenses
- Outstanding loans
- Credit card debts
- Funeral expenses
- Unpaid taxes
5. Distribution According to California Intestate Succession Laws
Once debts, taxes, and administration expenses are paid, the remaining assets are distributed according to California’s intestate succession laws. The administrator must prepare a final accounting and petition the court for permission to distribute the assets.
This entire process typically takes 9-18 months in California, though complex estates or family disputes can extend the timeline considerably.
Who Inherits When There’s No Will in California?
California’s intestate succession laws follow a specific hierarchy that determines who inherits the deceased person’s assets:
Surviving Spouse’s Share
If the deceased person was married:
- Community Property: The surviving spouse inherits all of the deceased spouse’s community property (property acquired during marriage).
- Separate Property: For separate property (owned before marriage or received as a gift or inheritance during marriage), the distribution depends on other surviving relatives:
- If there are no children, parents, siblings, or descendants of siblings: The spouse receives all separate property.
- If there are children: The spouse receives one-half of separate property, and the children share the other half.
- If there are no children but parents survive: The spouse receives one-half of separate property, and parents receive the other half.
- If there are no children or parents but siblings survive: The spouse receives one-half of separate property, and siblings share the other half.
These rules are established in California Probate Code Sections 6401 and 6402.
Children’s Share
If the deceased person had children:
- If there’s a surviving spouse, children share one-half of the separate property.
- If there’s no surviving spouse, children inherit everything equally.
- Adopted children have the same rights as biological children.
- Stepchildren who weren’t legally adopted don’t automatically inherit.
- If a child died before the parent but had children of their own (grandchildren of the deceased), those grandchildren typically receive their parent’s share.
Parents, Siblings, and Other Relatives
If the deceased person had no spouse or children:
- Parents inherit everything equally.
- If parents are deceased, siblings inherit everything equally.
- If a sibling died before the deceased but had children, those nieces and nephews inherit their parent’s share.
- If no siblings or their descendants survive, grandparents inherit.
- If no grandparents survive, the estate goes to aunts, uncles, or their descendants.
When There Are No Relatives
If no relatives can be found, the estate “escheats” to the State of California, meaning the state takes ownership of all assets under California Probate Code Section 6800.
Timeline and Costs of Probate in California
Probate in California is known for being time-consuming and expensive, particularly when there’s no will to guide the process.
Timeline
A typical probate in California takes 9-18 months to complete, but can take longer if:
- The estate includes complex assets
- There are disputes among potential heirs
- Creditor claims are contested
- The court calendar is congested
The mandatory four-month creditor claim period alone means probate can’t be completed in less than four months, even for simple estates.
Costs
Probate expenses in California typically include:
- Court Filing Fees: Initial filing fees start at approximately $435.
- Statutory Attorney Fees: California Probate Code Section 10810 establishes statutory fees based on the gross value of the estate:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- 0.5% of the next $15 million
- “Reasonable amount” for estates over $25 million
For example, an estate valued at $500,000 would incur statutory attorney fees of $13,000 ($4,000 + $3,000 + $6,000).
- Administrator Fees: The administrator is entitled to the same statutory fees as the attorney.
- Probate Referee Fees: 0.1% of the assets they appraise, plus expenses.
- Additional Costs: Publication fees, certification fees, recording fees, and bond premiums.
All told, probate costs often consume 5-7% of the estate’s value—a significant amount that could otherwise go to heirs.
How to Potentially Avoid Probate in California
While this article focuses on what happens when probate is necessary due to lack of a will, it’s worth mentioning that several probate-avoidance strategies exist in California:
Small Estate Procedures
California offers simplified procedures for estates valued under $166,250 (excluding certain assets). Heirs can often claim assets using a simple affidavit under California Probate Code Section 13100 rather than going through full probate.
Joint Ownership
Assets held in joint tenancy with right of survivorship or community property with right of survivorship automatically pass to the surviving joint owner without going through probate.
Beneficiary Designations
Many financial accounts (retirement accounts, life insurance policies, transfer-on-death accounts) pass directly to named beneficiaries outside of probate.
Transfer-on-Death Deeds
California allows transfer-on-death deeds for real property under Civil Code Section 5642, which enable property to transfer automatically upon death without probate.
Revocable Living Trusts
Assets properly transferred to a revocable living trust during life avoid probate and pass according to the terms of the trust.
Key Takeaways
- Dying without a will in California means your assets will be distributed according to the state’s intestate succession laws, which might not match your wishes.
- The probate process without a will typically takes 9-18 months and costs 5-7% of the estate’s value.
- California’s community property laws significantly impact how assets are distributed when someone dies without a will.
- A surviving spouse receives all community property but may share separate property with other heirs.
- California offers several legal mechanisms to avoid probate, including trusts, joint ownership, and beneficiary designations.
- Creating an estate plan is the only way to ensure your assets go to the people you choose, in the manner you prefer.
Frequently Asked Questions
Who handles the estate if there’s no will in California?
The court appoints an administrator following priority rules in California Probate Code Section 8461, typically starting with the surviving spouse, then children, then other relatives.
How long does probate take in California without a will?
Typically 9-18 months, though complex estates or family disagreements can extend this timeline.
Can a common-law spouse inherit in California if there’s no will?
California doesn’t recognize common-law marriage. However, a registered domestic partner has the same inheritance rights as a spouse under California law.
Do stepchildren inherit if there’s no will in California?
Stepchildren who weren’t legally adopted don’t automatically inherit under California’s intestate succession laws.
What happens to a house in California if the owner dies without a will?
If the deceased owned the house alone, it goes through probate and passes to heirs according to intestate succession. If owned in joint tenancy or community property with right of survivorship, it passes automatically to the surviving joint owner.
Can the probate court decide who gets specific items if there’s no will?
The administrator generally decides how to distribute specific items among heirs entitled to receive property of equal value, unless heirs agree otherwise or the court intervenes in case of disputes.
What happens to digital assets if someone dies without a will in California?
California’s Revised Uniform Fiduciary Access to Digital Assets Act (Probate Code Sections 870-884) allows administrators to access certain digital assets, but intestate succession laws don’t specifically address how digital assets should be distributed.
We Can Help Guide You Through Probate or Help You Avoid It
Handling probate without a will can be overwhelming, especially while grieving a loved one. At BottomLine Lawyers PC, we guide families through California’s probate process with compassion and clarity. Whether you’re dealing with an estate where no will exists or you want to create an estate plan to protect your loved ones from going through probate in the future, we’re here to help.
Don’t wait until it’s too late to make your wishes known. Contact us today for a free consultation to discuss your estate planning needs or for assistance with an ongoing probate matter. Our team can help you find the right solutions for your family’s situation.
