Someone Died Without a Will in California: What Happens Next?

There is no will. Who inherits and who is in charge sound like one question. Those are two questions, and different rules answer each. California's intestacy rules, which apply when there is no will, decide who inherits the property in the estate. A separate ranked list decides whom the court may appoint as administrator, the person who handles an estate with no will. Nobody has power over the estate until that appointment takes effect.

The state takes only where nobody at all is entitled to take, and these rules reach well beyond close family. The California Courts publish a guide to property after someone dies.

What these rules divide

Under Probate Code section 6400, these rules reach whatever a will has not effectively disposed of. There Is a Will. Why Might We Still Need Probate? takes up a writing that might be one.

Under Probate Code section 5000, a provision saying who receives property at death names its own recipient, whether in a trust, an account agreement, or an insurance policy. Under Probate Code section 5302, money in a joint account belongs to the surviving account holder as against the estate of the person who died, unless there is clear and convincing evidence of a different intent. Do We Need Probate in California? sorts each asset in turn.

What a surviving spouse takes

Under Family Code section 760, what either spouse acquired during the marriage while living in California is generally community property. Under Family Code section 770, what a spouse owned earlier or received as a gift or an inheritance is separate property.

At the death, Probate Code section 100 puts community property in two shares: one belongs to the surviving spouse, the other to the person who died. Probate Code section 6401 gives the survivor that second share as an intestate share, so the survivor ends up holding the community property, part by ownership and part by inheritance. The share that was already the survivor's is not inherited from anyone. My Spouse Died: Do I Need a Spousal Property Petition? covers the survivor's route.

The surviving spouse takes all of the separate property where the person who died left no children, grandchildren, or later generations, no parent, no brother or sister, and nobody descended from a brother or sister who died earlier, and takes a smaller share where any of those relatives survived. Section 6401 sets out those cases.

Family Code section 297.5 puts a registered domestic partner where a spouse stands, registration meaning a Declaration of Domestic Partnership filed with the Secretary of State and not terminated. A partner who never married the person who died and never registered does not inherit under these rules, though a joint account, a payable-on-death designation, or a trust may still give that partner something.

Who comes next, and how far the rules reach

What the surviving spouse does not take, or the whole intestate estate where there is none, passes under Probate Code section 6402 to the descendants of the person who died, meaning children, grandchildren, and later generations, taking equally where they are of the same generation. With no descendants that property ordinarily goes to the parents, then to brothers and sisters and their descendants, then to grandparents or their descendants, and further still to more distant relatives, each step reached only where nobody earlier survived.

Under Probate Code section 6403, for inheritance when there is no will, anyone who would inherit must outlive the person who died by 120 hours; where that cannot be established by clear and convincing evidence, the law treats that person as having died first; and the requirement does not apply where applying it would send the property to the state.

Probate Code section 6404 marks the end of the order: the state takes only where there is no taker of the intestate estate, and then only where no one takes under a will and nobody other than a government takes by inheritance.

Who can be in charge, and when

With no will, the court appoints an administrator under Probate Code section 8460, choosing from the ranked list in Probate Code section 8461: a surviving spouse or registered domestic partner, then children, then grandchildren and other descendants, then parents, then brothers and sisters, and on through more distant relatives to the public administrator and creditors. That list ranks who may ask to be appointed, a different question from who inherits.

Under Probate Code section 8462, a family member's place counts only if that person inherits part of the estate, which is what makes that person an heir: someone these rules entitle to inherit, a surviving spouse or registered domestic partner included.

Priority is not appointment: where several share a place, the court may appoint one or more of them, or a person who claims it where nobody with priority does.

Probate Code section 8400 fixes the moment: until the court has appointed someone and Letters have issued, nobody may administer the estate. Letters are the court's appointment document. Named Executor? What You Can Do Before and After Court Appointment compares what changes when they issue.

Meanwhile a family can agree who will ask, collect what a petition needs, and take that to a lawyer.

Four things families assume

The state takes at the end of a long line of relatives, not the start; having no will does not hand the estate to the state.

Children are one group on the appointment list, and nothing there ranks them by birth order or age.

Authority comes from the court's appointment. The appointment list carries no funeral or expense term, so paying for the funeral or holding the keys confers no authority.

A partner who never married the person who died and never registered holds no family place on that list either, though a joint account or a trust may still give that partner something.

What Carmen already owned, and what she inherits: a hypothetical

For a hypothetical example, suppose that Luis died in California without a will, survived by his wife Carmen and two adult children from an earlier marriage. Assume no writing that might be a will, no trust, a marriage never dissolved or annulled, with no case pending, both children his for these rules, all three surviving him by more than the required period, a house bought in California with marriage earnings on a deed without survivorship wording, and his mother's inheritance in its own account, nothing mixed in and nobody else named.

On those assumptions the house is community property, already in two shares, and Carmen's intestate share is the share that belonged to Luis. She ends up holding the house, part by ownership and part by inheritance, and the children take no part of it under these rules. The names on the deed do not settle that.

The account is Luis's separate property. More than one child survived him, so Carmen takes a share of it and not all, and the rest passes to the two children equally.

Carmen is first on the appointment list because she inherits part of the estate, and the children come next; none may administer the estate until Letters issue.

Change one fact. Luis was not married and not in a registered domestic partnership. The whole intestate estate then passes to his two children equally, and the house and the account are simply two things in it. The children share first place on the appointment list.

What to gather before the first conversation

Two things decide both answers: who survived, and how each asset was acquired. Gather:

• The family tree, with dates, addresses, and times of death: every child, including adopted children and children whose parents were not married; any child who died earlier, with that child's own children; and, if no child survived, parents and brothers and sisters with their descendants.
• The marriage and partnership record: the marriage certificate or the Declaration of Domestic Partnership, and any divorce, annulment, or termination papers.
• When and how each asset was acquired: the deed, the account agreement, and whatever shows who else is named.

Gathering asks nobody's permission; acting on the estate is another matter. Someone Died in California: What to Do First covers the first days, and the California Probate Guide for Families the whole case. The companion Role cards and family examples names each role.

Watson Law Group, APC advises California families on estate administration. To discuss who inherits and who may be appointed in this estate, bring the family tree, the marriage papers, and the record for each asset.

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General California legal information, not advice about a particular estate.