Dying without a will in California doesn’t mean the state takes everything, that’s a persistent myth. It means the estate follows a fixed inheritance order set by law, called intestate succession, instead of the person’s own written wishes. Who inherits, and how much, depends on exactly which relatives survive and what kind of property is involved.
Quick answer: When someone dies without a will in California, community property goes entirely to the surviving spouse. Separate property is split between the spouse and any surviving children, parents, or siblings according to a formula in Probate Code Section 6401. If there’s no surviving spouse, children inherit first, then parents, then siblings, following the order in Section 6402. The estate still goes through probate, just with an administrator instead of an executor.
What “Intestate” Actually Means
Intestate simply means someone died without a valid will. California’s intestate succession laws then determine who inherits, based purely on family relationship, not on what the deceased might have wanted informally. The state genuinely inheriting an estate (called escheat) only happens in the rare case where no legal heirs can be found at all, distant or otherwise, which is uncommon.
Community Property vs. Separate Property
This distinction drives everything in California intestate succession. Community property generally means assets acquired during the marriage. Separate property generally means assets owned before the marriage, or received individually by gift or inheritance during it. The surviving spouse’s share differs dramatically depending on which category an asset falls into.
How Much Does a Surviving Spouse Inherit?
The surviving spouse always receives the decedent’s entire half of community and quasi-community property. Separate property is more complicated, and depends on who else survives:
| Who else survives | Spouse’s share of separate property |
|---|---|
| No surviving children, parents, or siblings | 100% |
| One child (or the issue of one deceased child) | 50% |
| No children, but a surviving parent or parents | 50% |
| More than one child, or issue of two or more deceased children | 33% |
Whatever the spouse doesn’t receive from the separate property passes to the surviving children (or other qualifying relatives) under Probate Code Section 6401.
Who Inherits If There’s No Surviving Spouse
Without a surviving spouse, California’s intestate succession order (Probate Code Section 6402) generally works through this sequence, moving to the next category only if no one in the prior category survives:
- Children, in equal shares (or their descendants, if a child predeceased the decedent)
- Parents, in equal shares if both survive
- Siblings, or the children of a deceased sibling
- Grandparents, or their descendants
- More distant next of kin, following a specific statutory formula
A few things this order does NOT do: it doesn’t include unmarried domestic partners unless they were registered domestic partners under California law, and it generally doesn’t include stepchildren unless they were legally adopted. If you’re unsure where you fall in this order for a specific estate, an probate attorney can confirm it.
How the Probate Process Differs Without a Will
The estate still goes through probate court, but a few things change compared to an estate with a will:
- An administrator, not an executor, runs the estate. Probate Code Section 8461 sets a priority order for who has the right to serve, generally the surviving spouse first, then children, then other relatives.
- The court issues Letters of Administration instead of Letters Testamentary, granting the administrator authority to act for the estate.
- A bond is more often required. Without a will to waive it, the administrator typically has to post a bond sized to the estate’s value, unless all heirs agree in writing to waive it.
- Notice still goes to every heir under the intestacy order, not just those named in a will, since there isn’t one.
Beyond that, the mechanics are the same as any other California probate: filing a petition, inventorying and appraising assets, paying valid debts, and eventually distributing what’s left according to the intestacy order instead of a will’s instructions. See our probate preparation checklist for the document-gathering side of this.
If You Need Funds While This Sorts Out
Intestate estates often take longer to settle than estates with a will, since there’s no guidance document and sometimes more relatives to track down and notify. Formal probate in California typically runs 9 to 18 months either way. If you’re an heir under California’s intestacy laws and need cash before the estate closes, a probate advance can get you access to your share now.
FAQ: Probate in California Without a Will
Does the state of California take everything if there’s no will?
No. The estate passes to surviving relatives under the intestate succession order. The state only inherits (escheat) in the rare case where no legal heirs can be located at all.
Does an unmarried partner inherit under California intestacy law?
Only if they were a registered domestic partner under California law. An unmarried partner without that legal status has no automatic inheritance right under intestate succession, regardless of how long the relationship lasted.
Who becomes the administrator of an estate with no will?
Probate Code Section 8461 sets a priority order, typically the surviving spouse first, then children, then other relatives in order of closeness. The court appoints from whoever petitions in that priority order.
Do stepchildren inherit if there’s no will?
Generally not, unless they were legally adopted by the decedent. Biological or adopted children inherit under intestacy; stepchildren without a formal adoption typically do not.
Is probate required if there’s no will?
Usually yes, unless the estate qualifies for a simplified process, such as the small estate affidavit for personal property under $208,850, or the primary residence petition for a home worth $750,000 or less under AB 2016.
The Bottom Line
No will doesn’t mean no plan, California law already has one built in, it just isn’t customized to what the person might have actually wanted. If you’re an heir navigating an intestate estate and the timeline is dragging on longer than you can wait, visit ProbateLend to see if a probate advance can help.
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