By Anthony Jones, J.D. | The Berhe Law Firm, APC
Most people do not spend a lot of time thinking about what happens to their things after they die. That is human nature. But if you live in California and you die without a will - what the law calls dying "intestate" - the state has already written one for you. You just do not get to read it, and chances are good that it does not reflect what you would have wanted.
This article walks through how California handles your estate when you leave no instructions. The rules are actually quite detailed, and understanding them is the first step toward making sure they never apply to you.
What "Intestate" Means and Why It Matters
When you die without a valid will or trust, you die intestate. At that point, California's intestate succession laws - found primarily in California Probate Code Sections 6400 through 6414 - take over. These statutes create a rigid priority system that determines who inherits your assets, in what proportions, and in what order.
The system is not random, and it is not arbitrary. It represents the Legislature's best guess at what most Californians would want. But "most Californians" is not you, and the law cannot account for your specific relationships, your family dynamics, or the people you actually care about. The result is that intestate succession can feel deeply unfair to the people left behind - even when it technically follows the rules.
California's Community Property Rules Come First
Before the intestate succession rules even kick in, California's community property framework shapes what is available to distribute. California is a community property state, meaning that most assets acquired by either spouse during the marriage are owned equally by both spouses, regardless of whose name is on the account or title.
Under California Probate Code Section 100, each spouse already owns one half of the community property during life. When one spouse dies, only their half is subject to distribution - the surviving spouse keeps their half automatically. Under California Probate Code Section 6401(a), the intestate share of the surviving spouse includes the decedent's one half of community property. In practice, this means that if a married California resident dies intestate, their surviving spouse receives all community property - the half that already belonged to the surviving spouse plus the decedent's half that passes through intestate succession.
Separate property is treated differently. Separate property includes assets owned before marriage, gifts received by one spouse, and inheritances - as long as they have not been commingled with community funds or otherwise transformed into community property. Under Probate Code Section 6401(c), the surviving spouse's share of separate property depends on the family structure:
- No surviving children, parents, or siblings: The surviving spouse inherits all separate property.
- One surviving child (or the descendants of one deceased child): The surviving spouse and that child each receive one half of the separate property.
- Two or more surviving children: The surviving spouse receives one third of the separate property; the children share the remaining two thirds equally.
- No children but surviving parents (or siblings if no parents): The surviving spouse receives one half of separate property; the other half goes to the parents or siblings.
This framework can produce results that surprise people. A business owner who built a company before marriage may assume a spouse will inherit it. But if the business is separate property and there are two children from a prior relationship, the spouse receives only one third of that asset.
What Happens If You Are Not Married
For unmarried Californians, the community property rules do not apply, and the entire estate passes according to the hierarchy in Probate Code Section 6402. The order of priority is:
- Children: If you have children, they inherit everything in equal shares. If one of your children died before you, that child's share passes to their own children (your grandchildren).
- Parents: If you have no surviving children or grandchildren, your parents inherit everything.
- Siblings and their descendants: If no parents survive, your siblings inherit. A deceased sibling's share passes to their children.
- Grandparents and their descendants: If none of the above survive, the estate passes to your grandparents, then to aunts, uncles, and cousins.
- The state of California: If no qualifying relatives exist, your estate eventually escheats - meaning it is transferred to the state.
Notice who is not on that list: a long-term partner you never married. A close friend who was like family. A stepchild you raised but never formally adopted. A charity you cared about deeply. None of these people or organizations will receive a single dollar under intestate succession. California Probate Code Section 6402 recognizes biological and legally adopted relatives, period.
What Happens to Minor Children
For parents, the most important piece of estate planning is often not money - it is the question of who raises your children if you and your co-parent are both gone. A will is the only legal mechanism that allows you to designate a guardian for your minor children.
When a parent dies intestate leaving minor children, a probate court judge - a stranger with no knowledge of your family, your values, or your wishes - will appoint a guardian based on a legal order of priority and the court's assessment of the best interest of the child. While courts generally look to close family members, the process is uncertain, potentially contentious, and entirely out of your control.
There is also a financial dimension. Minor children cannot legally own property outright. When a child inherits under intestate succession, a court-supervised guardianship of the estate must be established. The appointed guardian of the estate must file annual accountings, seek court approval for expenditures, and operate under significant legal restrictions. All assets held under this arrangement are released to the child in a lump sum when they turn 18 - an age at which most young adults are not financially prepared to manage a significant inheritance.
A simple will and a basic trust - combined with a guardianship nomination - can solve all of these problems. You choose the guardian. You set the age at which your child receives the inheritance. You can include instructions about how the funds should be used. None of that is available to you if you die without a plan.
The Probate Process Adds Time and Cost
Intestate estates in California typically must pass through probate - the court-supervised process for validating the transfer of assets after death. California's probate process is known for being time-consuming and expensive. Statutory executor fees (Probate Code Section 10800) and attorney fees (Section 10810) are each calculated as a percentage of the gross estate value (not net value, meaning mortgaged property counts at full value). A $1 million estate - not unusual given California real estate values - can generate over $46,000 in combined statutory fees, not counting extraordinary fees for contested matters.
Probate typically takes one to two years in California, sometimes longer in contested estates. During that time, assets are frozen, beneficiaries wait, and the family is required to navigate a complex legal process at an already difficult time.
A properly drafted revocable living trust avoids probate entirely. Assets held in trust pass directly to beneficiaries, typically within weeks, and without the cost of a court proceeding. For most California residents with real property, a trust is not a luxury - it is a practical necessity.
The "I'm Too Young for This" Problem
Estate planning is often framed as something for older people, for people with significant wealth, or for people dealing with health issues. The reality is that the people who most need a basic estate plan are often young parents, people in new relationships, and individuals who have recently acquired their first home or started a business.
If you are in your 30s with a young child, a mortgage, and a partner you are not married to, California's intestate succession laws could direct everything you own away from the people who depend on you most. Your partner has no legal claim. Your child's inheritance would be managed by a court-appointed guardian until age 18. Your parents might inherit a portion of your separate property over your partner's objection.
A basic estate plan - a will, a durable power of attorney, an advance healthcare directive, and for most homeowners a revocable living trust - does not need to be complicated or expensive. What it does need to be is done.
Take the First Step
California's intestate succession laws will do their best to distribute your assets fairly. But they cannot replicate your intentions, protect your partner, designate your child's guardian, or keep your estate out of probate. Only a plan written by you can do those things.
The estate planning attorneys at The Berhe Law Firm, APC work with California residents at every stage of life to create plans that reflect their actual wishes - not the state's default rules. Whether you need a simple will or a comprehensive trust-based plan, our team can guide you through the process with clarity and care. Contact us today to schedule a consultation.
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