How Does Intestate Succession Work in California? (w/Examples) + FAQs

When a California resident dies without a valid will, their property passes through intestate succession, a state-run formula set by the California Probate Code sections 6400-6414 that decides who inherits and how much. The court, not the family, picks the heirs. This often shocks surviving partners, stepchildren, and friends who assumed they would inherit.

California adds a twist most states do not have: it is a community property state. That means the law splits assets into two buckets before it hands anything out, and the rules for each bucket are different. Miss this split, and you can give away half of an estate to the wrong person. The California Courts self-help guide on wills, estates, and probate confirms that intestate rules apply the moment someone dies without a legally valid will.

About 2 in 3 American adults have no will, according to a 2024 Caring.com survey on estate planning. That gap drives thousands of California probate filings every year, and many end in results the decedent would have hated.

Here is what you will learn in this guide:

• ⚖️ How California splits community and separate property before any heir gets a share
• 👨‍👩‍👧 Who inherits first, second, and last under the state’s priority ladder
• 💵 The $208,850 small-estate shortcut that lets families skip full probate in 2026
• 🧾 Step-by-step court forms, petitions, and filing moves you must make
• 🚫 The seven biggest mistakes that cost heirs their inheritance — and how to dodge each one

What Intestate Succession Means in California

Intestate succession is the default inheritance plan the state writes for people who never made one. The rules live in Probate Code Division 6, Part 2, and they kick in automatically at death. The plain-English idea is that the law assumes you would have wanted your closest blood relatives and your spouse to take your stuff, in a fixed order.

The consequence of relying on this default is loss of control. You cannot leave anything to a best friend, a charity, a live-in partner, or a stepchild you raised. The state does not care about your relationships. It cares about marriage certificates and bloodlines.

A common misconception is that “the government takes everything” when there is no will. That is false in most cases. Property only escheats (transfers) to the State of California when the court cannot find any living relative, no matter how distant, under Probate Code section 6404.

Real example: Marcus dies in Sacramento with no will, no spouse, and no kids, but he has a living cousin in Ohio. The cousin inherits everything. The state gets nothing. This is why probate investigators and heir-search firms exist.

Dying “Fully” vs. “Partially” Intestate

You can die fully intestate (no will at all) or partially intestate (a will that does not cover every asset). Partial intestacy is more common than people think. A will drafted in 1998 that lists a house and a bank account says nothing about the 401(k) opened in 2015.

The consequence of partial intestacy is a split estate. The named items pass under the will. The leftovers pass under the intestate rules. Two sets of heirs can show up in the same case.

A common misconception is that a will covers everything you own forever. It does not. Assets bought, inherited, or opened after the will was signed — and not described by a catch-all residuary clause — fall into the intestate bucket by default.

Example: Priya’s 2005 will gives her home to her brother, but she bought a rental condo in 2022 and never updated the document. The condo passes by intestate rules to her children, not her brother.

The Community Property vs. Separate Property Split

Before the court names any heir, it classifies every asset. California follows Family Code section 760, which says property acquired during marriage by either spouse is community property, owned 50/50. Property owned before marriage, or received as a gift or inheritance during marriage, is separate property.

The consequence of mislabeling matters. If a house bought during marriage is wrongly called separate, the surviving spouse can lose a 50% share they already owned. If separate property is wrongly pooled into the community, children from a prior marriage can be cut out.

A common misconception is that whoever’s name is on the title owns the asset alone. Title does not beat the community property presumption for assets bought with marital earnings. Courts look at source of funds, date of purchase, and any written agreements.

Example: David and Elena marry in 2010. David buys a car in 2015 using his paycheck and titles it in his name only. The car is still community property because wages earned during marriage are community funds under Family Code section 760.

Quasi-Community Property

Quasi-community property is property a couple acquired while living in another state that would have been community if they had lived in California. Probate Code section 66 treats it like community property at death.

The consequence is fairness for couples who moved. A wife who spent 20 years in Texas (a community-style state already) or New York (a separate-property state) does not lose her marital share just because her husband died in San Diego.

The common misconception is that out-of-state assets are always separate. They are not, if the couple now lives in California and the property would have been community if bought here.

Example: Karen and Tom lived in Illinois for 30 years, then retired to Palm Springs. Tom dies without a will. Their Illinois brokerage account, built from Tom’s salary, is quasi-community under Probate Code section 66, so Karen keeps her half.

Separate Property Defined

Separate property is anything owned before marriage, anything received by gift or inheritance at any time, and anything traceable to those sources per Family Code section 770.

The consequence is that separate property does not automatically go 100% to the spouse. It splits among the spouse and any children, parents, or siblings, depending on who survives.

A common misconception is that a long marriage converts separate property into community. Time alone does not change character. Only commingling, transmutation (a signed written agreement), or deliberate retitling can change it.

Example: Before marriage, Lisa inherits a Napa vineyard from her grandmother. She marries James in 2000 and dies intestate in 2026. The vineyard stays separate property, so James shares it with Lisa’s children and parents, not takes it all.

Who Inherits the Community Property

Under Probate Code section 6401(a), the surviving spouse inherits 100% of the community property. That is the decedent’s half plus the survivor’s own half, rolled into one full ownership.

The consequence is simple for first-marriage couples with shared kids: the spouse takes it all, and children wait for the second parent to die. But this rule can also disinherit children from a prior relationship, because the community half passes entirely to the current spouse.

A common misconception is that children always get a piece of the community estate at the first death. They do not. California’s default gives the spouse every dollar of community property, then trusts the spouse to pass it to the kids later — a trust that sometimes fails.

Example: Robert and Maya marry; Robert has two kids from a first marriage. Robert dies intestate with a $1.2 million community-property home. Maya inherits the full home under Probate Code section 6401. Robert’s kids get nothing from that house unless Maya leaves it to them later.

Registered Domestic Partners

Registered domestic partners get the same treatment as spouses under Family Code section 297.5. Their shared property is community property, and the survivor inherits 100% at death.

The consequence is that unregistered partners get nothing, no matter how long the relationship. Moving in together for 25 years does not create common-law marriage in California, which the California Courts confirms is not recognized.

A common misconception is that a long-term romantic partner is an automatic heir. They are not. Without registration, a will, or a trust, the partner is a legal stranger to the estate.

Example: Jordan and Sam live together for 18 years and never register. Jordan dies intestate. Sam inherits zero, and Jordan’s estranged brother in Florida takes the whole estate under the intestate priority ladder.

Who Inherits the Separate Property

Separate property splits under a sliding scale in Probate Code section 6401(c) and section 6402. The spouse’s share depends on how many other close relatives survive.

The consequence is that a surviving spouse rarely gets 100% of the separate property. The split can leave the spouse with one-third of the deceased’s separate assets while children or parents take the rest.

A common misconception is that the spouse is always the “top” heir. In separate property, the spouse shares the estate with blood relatives. That shock hits hardest with real estate that the spouse thought they would inherit outright.

Spouse’s Separate-Property Share

The spouse’s slice of separate property follows three rules:

• All to spouse if the decedent has no surviving kids, parents, siblings, or descendants of siblings.
• One-half to spouse if the decedent leaves one child (or issue of one deceased child), or no kids but leaves a parent or siblings.
• One-third to spouse if the decedent leaves two or more children, or one child plus descendants of another deceased child.

The consequence of this ladder is that in a blended family, the spouse and kids become co-owners of assets like a family home, and co-ownership disputes land in court.

Example: Aisha dies intestate leaving husband Omar and three adult children from a prior marriage. Aisha’s $900,000 separate-property brokerage account splits one-third to Omar ($300,000) and two-thirds to the children ($200,000 each) under Probate Code section 6401(c)(3).

When No Spouse Survives

If the decedent leaves no spouse, Probate Code section 6402 lists the order: children, then parents, then siblings (or their descendants), then grandparents, then descendants of grandparents, then predeceased spouse’s relatives, then next of kin.

The consequence is that distant cousins can inherit over close friends, charities, and unmarried partners. Families that have not spoken in decades suddenly appear in court.

The common misconception is that “next of kin” is an obvious person. Courts apply the parentelic system, which counts through parent lines and grandparent lines before spreading sideways.

The Ancestral Property Rule

Probate Code section 6402.5 adds a little-known twist. If the decedent received real property from a predeceased spouse within 15 years, or personal property worth over $10,000 within five years, that property can go back to the predeceased spouse’s relatives instead of the decedent’s own family.

The consequence is that a house a widow inherited from her late husband may return to his children, not hers, if she dies without remarrying and without a will.

A common misconception is that once you inherit something, it is yours to pass on however the default rules say. The ancestral property rule overrides the normal section 6402 order in these narrow windows.

Example: Helen inherits a Pasadena duplex from husband Frank when Frank dies. Helen dies eight years later with no will and no kids. Under section 6402.5, the duplex passes back to Frank’s surviving siblings, not Helen’s.

Three Common California Intestate Scenarios

Below are three high-frequency patterns California probate courts see every week. Each table shows the family setup on the left and the distribution result on the right.

Scenario 1: Married First-Time Couple, Shared Kids

Family Setup	Distribution Result
Husband dies intestate, survived by wife and two biological children they share	Wife takes 100% of community property; wife takes one-third of separate property; children split the remaining two-thirds
Estate includes $800,000 community home and $300,000 separate inheritance account	Wife gets the $800,000 home + $100,000 of the account; children split $200,000

Scenario 2: Blended Family with Stepchildren

Family Setup	Distribution Result
Wife dies intestate, survived by second husband, one biological child, and two stepchildren she never adopted	Husband takes 100% community property; husband takes one-half separate property; biological child takes the other half
Stepchildren inherit nothing absent a Probate Code section 6454 equitable-adoption finding	Stepkids must prove a parent-child bond started in minority and would have led to adoption but for a legal barrier

Scenario 3: Single Adult, No Spouse, No Kids

Family Setup	Distribution Result
Single decedent survived by mother, father, and one sister	Parents split 100% of the estate equally; sister inherits nothing because parents are still alive
If both parents predeceased, one sister and one deceased brother (with two nieces) survive	Sister takes one-half; two nieces split the other half by right of representation

Rights of Children Under California Intestate Rules

Children of the decedent are top heirs after the spouse, and California treats them equally regardless of marital status at their birth, under Probate Code section 6452 as recently reformed. Biological and legally adopted children share equally.

The consequence is that a child born outside marriage can still inherit, but paternity or parentage must be proved. A DNA test, a court order, or clear and convincing evidence of an open and notorious parent-child relationship usually suffices.

A common misconception is that stepchildren inherit as “children.” They do not, unless the decedent legally adopted them or an equitable adoption claim is proved under Probate Code section 6454.

Example: Jacob raised his stepdaughter Mia for 20 years but never adopted her. Jacob dies intestate. Mia must file an equitable adoption claim and prove a formal parent-child relationship that would have led to adoption except for a legal obstacle.

Adopted Children

Legal adoption creates a full parent-child relationship for inheritance, and it usually ends inheritance rights from the biological parents, per Probate Code section 6451.

The consequence is that an adopted-out child does not inherit from the biological parent’s estate in most cases, unless the adoption happened after both natural parents died or the stepparent-adoption exception applies.

A common misconception is “blood beats paper.” In California, paper (the adoption decree) usually beats blood for inheritance purposes.

Posthumous and Non-Marital Children

A child conceived before the decedent’s death but born afterward inherits as if born during the decedent’s lifetime, under Probate Code section 6407. Non-marital children inherit once parentage is established.

The consequence is that a pregnant widow’s unborn child becomes a full heir at birth. Estate distribution should pause until the child is born.

A common misconception is that children conceived after death via frozen embryos or sperm are automatic heirs. California law treats posthumously conceived children carefully, and written consent by the decedent is typically required.

Right of Representation and Per Stirpes

California uses right of representation under Probate Code section 240, which is close to but not identical to classic per stirpes. The estate drops to the first generation with a living member, then splits into equal shares, and each deceased person’s share passes to their descendants.

The consequence is that grandchildren of a deceased child step into that child’s shoes. They do not compete as equals with their living aunts and uncles.

A common misconception is that all surviving descendants share equally per capita. California’s default is representation, not per capita, unless a will says otherwise.

Example: Grandpa Luis dies leaving three children’s lines: daughter Ana (alive), son Ben (deceased, two kids), son Carlos (deceased, one kid). Ana takes one-third. Ben’s two kids split one-third ($166,500 each on a $1,000,000 estate). Carlos’s one kid takes the final one-third ($333,000).

The Small Estate Affidavit Shortcut

California lets many families skip formal probate with a Small Estate Affidavit under Probate Code section 13100. The threshold jumps every three years for inflation, and as of April 1, 2025, it sits at $208,850 in gross personal property, per Judicial Council memo on updated dollar amounts.

The consequence of qualifying is huge savings. Families avoid the 9-to-18-month probate timeline, attorney statutory fees, and court hearings. They collect bank accounts and personal items with a notarized form.

A common misconception is that the affidavit works for real estate. It does not, beyond a separate small-value real property affidavit for real estate worth less than $69,625, covered by Probate Code section 13200.

Example: Paulo dies intestate with a $140,000 bank account, a car, and no real estate. His sister, the only heir, files a Small Estate Affidavit (Judicial Council form DE-300 guidance), waits 40 days, and collects the account without a probate case.

Spousal Property Petition

A surviving spouse can bypass full probate for community property using a Spousal Property Petition under Probate Code section 13650. It takes a single court hearing, not months of administration.

The consequence is speed. A spouse can confirm ownership of the family home and transfer title in 60 to 90 days.

A common misconception is that this petition works for separate property. It works only for the spouse’s share of community and quasi-community property, plus any separate property the decedent expressly left to the spouse.

The Full California Probate Process When Intestate

If the estate is too big for shortcuts, someone must open a probate case. The steps live across Probate Code sections 8000-12591.

The consequence of ignoring probate is title that nobody can transfer. Heirs cannot sell the house, close the bank account, or touch the brokerage until the court appoints an administrator.

A common misconception is that an heir can just “take” the property as the next of kin. Without Letters of Administration from the court, no bank, title company, or DMV clerk will release anything.

Step 1: Petition for Letters of Administration

A priority heir files Form DE-111, the Petition for Probate, in the Superior Court of the county where the decedent lived. The filing fee is usually around $435 to $465.

The consequence of filing is that the clerk sets a hearing, typically 30 to 60 days out, and notice must go to every heir by mail. A missed heir can void the entire case later.

A common misconception is that any relative can file first. Priority follows Probate Code section 8461: spouse, children, grandchildren, parents, siblings, and so on.

Step 2: Publication and Notice

The administrator must publish a Notice of Petition to Administer Estate in a local newspaper three times, and mail notice to heirs and known creditors per Probate Code section 8120.

The consequence of skipping publication is a void appointment. The judge will deny the petition and require a restart.

A common misconception is that email or social media counts as notice. Only the statutory methods, including newspaper publication in a qualifying adjudicated newspaper, satisfy the code.

Step 3: Inventory, Appraisal, and Creditor Claims

The administrator files Form DE-160, the Inventory and Appraisal, with a probate referee’s valuation for non-cash assets. Creditors have four months from Letters to file claims under Probate Code section 9100.

The consequence of missing the inventory deadline (four months) is removal as administrator and possible surcharge. The consequence for creditors who miss their window is a barred claim forever.

A common misconception is that family debts are always paid first. California ranks claims by class under Probate Code section 11420, and funeral costs, administration fees, and tax debts beat general unsecured claims.

Step 4: Distribution and Closing

After debts and taxes are paid, the administrator files a Final Report and Petition for Distribution. The judge signs an order; the administrator retitles assets and pays each heir their intestate share.

The consequence of distributing early, before the order, is personal liability for the administrator. If a creditor shows up later, the administrator — not the heirs — may have to repay.

A common misconception is that the administrator chooses who gets what. The administrator applies the code; the judge confirms; the heirs receive exactly what sections 6401 and 6402 dictate.

Mistakes to Avoid

• Assuming your partner inherits. Unmarried, unregistered partners inherit nothing by default, no matter the relationship length.
• Letting children use a small-estate affidavit to grab real estate. The basic affidavit does not transfer real property; the family can accidentally cloud title and trigger litigation.
• Skipping the community vs. separate split. Misclassifying assets can double-count a spouse’s share or wipe out a child’s inheritance.
• Forgetting quasi-community property. Out-of-state assets can be quasi-community, and treating them as separate cheats the surviving spouse.
• Missing the creditor-claim clock. The four-month window under Probate Code section 9100 is strict; late claims are barred but administrators who pay them become personally liable.
• Ignoring the ancestral property rule. Families lose houses to a predeceased spouse’s relatives when they do not apply section 6402.5.
• Treating stepchildren as legal children. Without adoption or an equitable adoption finding, stepkids take nothing.
• Distributing before court order. Early payouts can make the administrator personally liable to creditors.
• Forgetting posthumous heirs. Distribution should pause if an heir’s child is in utero.
• Overlooking digital assets. Crypto wallets, cloud accounts, and domain names are estate property, and losing passwords usually means losing the asset.

Do’s and Don’ts for Intestate California Estates

Do’s

• Do pull a certified death certificate from the California Department of Public Health Vital Records immediately, because every bank, title company, and court requires one.
• Do inventory both community and separate property separately, because the heirs differ for each bucket.
• Do file the petition in the county of the decedent’s domicile, because venue errors delay appointment.
• Do use the Spousal Property Petition for community property, because it saves months over full probate.
• Do notify every known heir by mail even if you think they will not care, because missed notice can void the case.

Don’ts

• Don’t assume a handwritten note is a valid will; a valid holographic will under Probate Code section 6111 needs the material terms and signature in the decedent’s handwriting.
• Don’t move assets out of the estate to “simplify” things; that is a fiduciary breach.
• Don’t pay creditors in the order they call; follow the class priority in section 11420.
• Don’t list crypto under an estimated value without a probate referee; California requires independent appraisal.
• Don’t ignore the Franchise Tax Board; final income tax returns and estate clearance can block distribution.

Pros and Cons of California’s Intestate System

Pros

• Predictable outcomes for close families with a surviving spouse and shared children.
• Creditor protection through a formal claims process that cuts off late claims.
• Court supervision that catches self-dealing administrators before they drain accounts.
• Small-estate shortcuts that save modest families months of court time.
• Clear priority rules for who serves as administrator, reducing family fights over who is in charge.

Cons

• No control over beneficiaries; the state decides, not you.
• Expensive statutory fees; attorneys and administrators earn a sliding-scale fee on gross estate value under Probate Code section 10810.
• Public record; every asset and every heir shows up in court filings.
• Slow timelines; most intestate probates run 9 to 18 months, and real-estate sales can stretch two years.
• Unfair to non-traditional families; long-term partners, chosen family, and stepchildren often receive nothing.

Key Entities in California Intestate Succession

• Decedent: The person who died without a valid will.
• Administrator: The person the court appoints to run the estate; called an executor when a will exists.
• Probate Referee: A state-appointed appraiser who values non-cash assets; see the State Controller’s Office probate referee program.
• Superior Court Probate Division: The trial court branch that hears every intestate case in the decedent’s county.
• California Franchise Tax Board: The state agency that collects final income taxes from the estate through its Decedents’ estates page.
• Heir: A person who inherits under the intestate statutes.
• Issue: All lineal descendants — children, grandchildren, great-grandchildren.
• Predeceased Spouse: A prior spouse who died before the decedent and whose property can trigger the ancestral property rule.

Important California Cases to Know

• Estate of Leslie, 37 Cal.3d 186 (1984): The California Supreme Court recognized the putative spouse doctrine for intestate succession, so a good-faith spouse of a technically invalid marriage can still inherit.
• Estate of Britel, 236 Cal.App.4th 127 (2015): The court denied inheritance to a non-marital child because she could not meet the “openly held out” parentage standard of former Probate Code section 6453.
• Estate of Ford, 32 Cal.4th 160 (2004): The Supreme Court set a strict test for equitable adoption, requiring clear and convincing proof of an intent to adopt plus a legal barrier.
• Estate of Sanders, 2 Cal.App.5th 980 (2016): The court confirmed that property labels at title matter less than source of funds for community classification.

These rulings guide judges when the statute is silent or the family facts are messy.

FAQs

Does a surviving spouse always inherit everything in California intestate?

No. The spouse takes 100% of community property but only one-third to one-half of separate property when children, parents, or siblings survive, under Probate Code sections 6401 and 6402.

Can an unmarried partner inherit without a will?

No. California does not recognize common-law marriage, so an unregistered partner inherits nothing by intestate succession regardless of how long the couple lived together.

Are stepchildren entitled to inherit if my spouse dies intestate?

No. Stepchildren inherit only through legal adoption or an equitable adoption claim under Probate Code section 6454, which requires strict clear-and-convincing evidence.

Do children born outside marriage inherit in California?

Yes. Non-marital children inherit equally once parentage is legally established, under Probate Code section 6452 as amended to eliminate legitimacy discrimination.

Does the state always take the estate if there is no will?

No. Escheat is rare and only happens when no relative, no matter how distant, can be found after a diligent search, per Probate Code section 6404.

Can I use a small estate affidavit for a California home?

No. The standard Small Estate Affidavit covers personal property up to $208,850; real property above $69,625 requires full probate or a spousal petition.

Does adoption cut off inheritance from biological parents?

Yes. Adoption generally severs inheritance rights from natural parents, except in narrow stepparent-adoption situations outlined in Probate Code section 6451.

Are half-siblings treated the same as full siblings?

Yes. Half-blood relatives inherit the same share as whole-blood relatives under Probate Code section 6406, with no discount for sharing only one parent.

Does a surviving spouse have priority to be administrator?

Yes. Probate Code section 8461 gives the surviving spouse first priority, followed by children, grandchildren, parents, and siblings in order.

Can heirs challenge the intestate distribution?

Yes. Heirs can contest by proving omitted heirs, invalid marriage, fraud by the administrator, or a late-discovered will, usually within 120 days of the order settling the estate.

Does a registered domestic partner inherit like a spouse?

Yes. Registered domestic partners receive identical intestate rights under Family Code section 297.5, including 100% of community property.

Can posthumously conceived children inherit?

Yes. A child conceived after death can inherit only if the decedent gave written consent and the child is in utero within a strict statutory window set by Probate Code section 249.5.