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Probate

Dying without a will in California

What happens to your loved one’s estate in California if there is no will


  • Without a valid will, the courts in California will distribute your loved one’s assets according to what are known as intestate laws.

  • Generally, the surviving spouse and children are given the highest priority when judges determine inheritances.

  • Beyond immediate family, intestate laws spell out the order of who can inherit assets, and they are overwhelmingly based on family relationships.

  • California’s ntestate laws also have a specific order for who would be chosen to serve as administrator, the person empowered to act on behalf of the estate to settle your loved one’s affairs.


The death of a loved one is always a difficult, but it can feel especially bewildering then they pass away with an invalid, incomplete, or missing will.

Without a valid will, the uncertainty around what is going to happen next can be intensely stressful. One comfort for California residents, however, is that the protocol for this situation is relatively straightforward.

When someone dies without a will, this is called “intestate.” California’s intestate succession laws dictate how assets are going to be distributed to beneficiaries.

Keep in mind that only assets that would normally be dictated in the will are eligible to pass through probate under intestate law. So, for instance, if your loved one had an asset like life insurance policy, that is not usually passed through probate, so it won’t fall under intestate succession law, either. 

Who inherits what under California intestate law? 

Since there is no will to give instructions about which assets go to which beneficiaries, the court will distribute your loved one’s assets according to California’s intestate laws. Essentially, who gets what depends on who your loved one’s closest relatives are.

This differs from state to state––here’s an overview of the specifics in California. The full outline of California intestate succession laws can be found online at California Probate Code § § 6400-6414. However, you won’t need to memorize these laws. The probate court will guide you through the process. 

Generally, the surviving spouse, if there is one, inherits all of the communal property (property acquired while married) and all or a share of the property their late spouse had before marriage (known as separate property).

Many families put their separate property together, so it all becomes communal property. If there is separate property, however, and there is a surviving spouse plus surviving children, the spouse and children each get a share of it. If there is no surviving spouse, the children inherit all property, communal and separate. 

If there are only surviving children and no spouse, the property is divided evenly between the children. A grandchild will only receive an intestate share if their parent is not alive. This section of the California Probate Code § § 6450-6455 covers intestate succession pertaining specifically to parent and child relationships. 

Who becomes the administrator?

Probably the biggest question when there is no will is: Who is in charge? In a valid will, an executor is designated. Without a will, that role is called the administrator.

Ultimately, the probate court will appoint an administrator based on your situation, but according to intestate law, there is a priority system for family members eligible to serve as the estate’s administrator.

The surviving spouse or domestic partner is given priority, and then surviving children. If there are neither, then priority goes to grandchildren.

Here is a an abbreviated list of the full order of priority that California follows to appoint an administrator:

  • Surviving spouse or domestic partner

  • Children

  • Grandchildren

  • Parents

  • Brothers and sisters

  • Grandparents

  • Children of a predeceased spouse or domestic partner

  • Other next of kin

  • Parents of a predeceased spouse or domestic partner

If a family member with lower priority wants to fill the administrator role, then they might need a written waiver from any family member(s) with higher priority. For example, if the decedent’s sibling wants to be the administrator, they may need a written waiver from the spouse and/or children. The court may also appoint more than one person as administrator. 

Serving as an estate administrator is no small task, so it’s really important to understand all that the job entails and decide as a family who will be able to take it on.

The surviving spouse or domestic partner is given priority, and then surviving children. If there are neither, then priority goes to grandchildren.

If none of the heirs wish to serve as the administrator, or similarly if more than one heir with priority wants to take on the role and a decision cannot be made by the family, then the court will either choose between family members or, in some cases, appoint a disinterested third-party person.

If the court finds any family member with high priority to be ineligible (if they are not a U.S. citizen, for example), then they will appoint someone with the next-highest priority. 

All this being said, you are not required to serve as an administrator if you are chosen. A person with higher priority can always decline the position and nominate someone else. If your family is having a hard time deciding on who will take on this important task, it’s always a good idea to consult a probate lawyer.

How to initiate probate 

Once you have decided as best you can who the administrator will be, it’s time to initiate the probate process.

The person who will be the administrator should schedule a hearing by contacting the Probate Department within the Superior Court of the county where your loved one lived. Next, that person must prepare the Petition for Probate (Form DE-111), which is the same form you would file if your loved one did have a will.

Some county courts will require you to have filled out additional forms at the same time as your Petition for Probate, while others will only require these forms after the administrator has been officially appointed.

The forms you may be asked to prepare upfront are the Notice of Petition to Administer Estate (Form DE-121), the Duties and Liabilities of Personal Representative (Form DE-147), the Order for Probate (DE-140), and, finally, the Letters Testamentary (DE-150). Each court is a little different, but it’s a good idea to have these forms with you just in case the court asks for them during your initial petition.

This can get a bit complicated––unless you have experience in administering an estate, it’s best to meet with a probate lawyer before filling out these forms to make sure you’re on the right track. Any errors in these forms can result in delays during probate down the road. 

Losing a loved one without a will might sound like a nightmare, but don’t worry, it’s not as complicated as it seems. Many people pass away without a valid will, and California’s courts have a structured process to deal with it. The probate court in your county will guide you and your family through the process

Probate

Probate

Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.