Dying Without a Will in California: How to Navigate the Probate Process

When faced with a loved one dying without a will in California, it’s only natural to have many questions about where to turn. When this occurs, the deceased person’s estate may still need to undergo probate, but the process follows different guidelines than if a will were present. Probate ensures the decedent’s property and assets are transferred to the rightful heirs based on California’s intestate succession laws. Understanding what happens when there is no will is crucial for surviving family members, as it impacts how the estate is distributed.

Navigating probate without a will can be straightforward and often does not require an attorney. Instead, a designated administrator handles the estate’s affairs, ensuring all legal requirements are met. This guide will help you understand what steps to take if a loved one passes away without a will, and how A People’s Choice can assist in making the process as smooth as possible.

What Happens If You Die Without a Will in California?

When a person dies without a will in California, and depending on the size of the estate, their estate may require to be probated under the rules of intestate succession. This legal framework determines how the deceased’s assets are distributed among surviving family members. Below, we outline what typically happens to the estate and how it is divided among different categories of heirs.

Surviving Spouse

The division of assets between a surviving spouse and other heirs depends largely on whether the assets are classified as community or separate property:

Community Property Assets acquired during the marriage are considered community property. In the absence of a will, the surviving spouse generally inherits all community property.

Separate Property Assets acquired before marriage, or as gifts or inheritance, are considered separate property. The distribution of separate property depends on the existence of other heirs. If there are children, separate property is divided between the spouse and the children. The share each receives is based on the number of children. (see example of intestate division below) If there are no children, the spouse may inherit all separate property.

Children

The inheritance rights of children under intestate succession depend on whether the decedent was married and had other children:

With Surviving Spouse Children do not inherit any of the community property, but will share the decedent’s separate property. If there are multiple children, the children’s share of separate property is divided equally among them.

No Surviving Spouse All property, both community and separate, is equally divided among the children.

Other Family Members

If there is no surviving spouse or children, the estate is distributed to other relatives, following a specific order of priority:

1. Parents: If the decedent’s parents are alive, they inherit the estate.
2. Siblings: If there are no surviving parents, the estate is divided equally among the decedent’s siblings.
3. Grandchildren: Grandchildren may inherit if their parent (the decedent’s child) is deceased.
4. Extended Family: If there are no immediate family members, more distant relatives such as cousins, nieces, nephews, great uncles, and great aunts may inherit the estate.

No Surviving Family

In rare cases where no surviving family members can be found, the estate may be claimed by the state of California. However, this typically happens only if there are no eligible relatives, even distant ones, to inherit the estate.

Assets Excluded From the Intestate Estate When Someone Dies Without a Will in California

Not all of a decedent’s assets are subject to California’s intestate succession laws. Several types of assets bypass the probate process and are distributed directly to designated beneficiaries or surviving owners. Below, we detail the primary categories of assets excluded from the intestate estate when a person dies without a will in California.

Assets Held in Joint Tenancy

Joint tenancy is a form of property ownership where two or more individuals hold equal shares of a property, with rights of survivorship..

Upon the death of one joint tenant, their share can easily be transferred to the surviving joint tenant(s) by recording an Affidavit Death of Joint Tenant, thus bypassing the probate process.

For example, if a decedent owned a home with a spouse or partner as joint tenants, the entire property would pass directly to the surviving spouse or partner.

Transfer-on-Death (TOD) and Payable-on-Death (POD) Assets

These are assets that have designated beneficiaries who receive the assets directly upon the decedent’s death.

• Transfer-on-Death Assets: Includes securities and vehicles
• Payable-on-Death Assets: Includes bank accounts and life insurance policies

These assets are excluded from intestate succession because the decedent specified beneficiaries through legal documents.

For example, a bank account with a POD designation will transfer the account balance directly to the named beneficiary without going through probate.

Assets Held in Trust

Trusts, particularly revocable trusts, are legal arrangements where one party holds property for the benefit of another.

Assets in a trust are managed by a successor trustee and distributed according to the trust’s terms, avoiding the probate process.

For example, if a decedent had placed their home and investment accounts into a revocable trust, the trustee would manage and distribute these assets to the trust’s beneficiaries as outlined in the trust agreement.

Retirement Accounts with Beneficiary Designations

This includes IRAs, 401(k)s, and other retirement accounts with designated beneficiaries.

These accounts pass directly to the named beneficiaries upon the decedent’s death.

For example, a 401(k) with a designated beneficiary will be transferred directly to that individual, bypassing probate.

Life Insurance Policies

These are policies that provide a payout to designated beneficiaries upon the policyholder’s death.

The death benefit is paid directly to the named beneficiaries not subject to probate.

For example, a life insurance policy naming a spouse as the beneficiary will result in the spouse receiving the policy’s payout directly.

These exclusions streamline the distribution of certain assets, ensuring they reach the intended beneficiaries swiftly and without the complications of probate or intestate succession.

Start My Probate

Applying for Probate With an Invalid or Missing Will

Probate is the legal process of transferring the legal title of property from the estate of the deceased to their beneficiaries. A court-appointed administrator must handle the probate process when a person dies without a will.

Upon approval, the court distributes the decedent’s estate according to California’s intestate succession laws. These laws also apply if a person dies with an invalid or incomplete will. Under California intestate succession laws, a personal representative is appointed to administer the estate. The responsibilities of the administrator include:

• Receiving all legal claims against the estate
• Paying creditors
• Managing the estate’s expenses
• Identifying and locating all heirs of the estate

How Does California Probate Intestate Succession Law Work?

The California probate court applies California intestate succession laws to determine the legal heirs of the decedent’s estate. Once the legal heirs are identified, the court decides how the property or assets will be distributed among them.

California probate laws specify the following:

• Married with No Children: The surviving spouse receives all shared property.
• Married with Children: The surviving spouse receives all community property, and the decedent’s separate property is divided between the spouse and the children.

Example of Intestate Property Division

Bob and Jane were married for 25 years and had three children. They owned two residential properties together, and Bob had a separate collection of Corvettes. Bob passed away without a will.

According to California’s intestate succession laws, Jane inherits Bob’s interest in the residential properties, becoming the sole owner. The separate property, the Corvette collection, is divided among Jane and the three children, each receiving a one-fourth share interest.

For more detailed information about California probate intestate succession laws, estate distribution, and heirs, see the chart below:

California’s Intestate Succession Law: Property Division Between Heirs

Descendant’s Relatives	Property Distribution
Children only	The decedent’s children will inherit the property and assets shared evenly between them.
Spouse only	The decedent’s spouse will inherit all property and assets.
Spouse and children	Spouse and one child: Spouse inherits all of the decedent’s community property and half of the separate property. The child inherits the other half of the separate property. Spouse and two or more children: Spouse inherits all community property and one-third of the separate property. Children equally split the remaining two-thirds of the separate property.
Parents only	The decedent’s parents will inherit all property and assets.
Siblings only	The decedent’s siblings will inherit the property and assets shared evenly between them.

5-Step Guide: What To Do if a Person Dies Without a Will in California

When a person dies without a will in California, managing their estate requires specific steps to ensure proper administration and distribution according to state intestate succession laws. Here’s a detailed guide on what actions to take.

Step 1: Determine the Estate Representative

Identify the Representative

• Small Estates: If the estate is small or qualifies for simplified procedures, all of the beneficiaries can petition together to settle the estate.
• Formal Probate: For larger estates, the court appoints an administrator. The California Probate Code §8461 provides a priority list, typically starting with the surviving spouse or domestic partner, followed by children, grandchildren, etc.

Representative Responsibilities

• The representative must be trustworthy, organized, and diligent.
• They have a fiduciary duty to manage the estate responsibly and in the best interests of all heirs.

Step 2: Gather Information and Fulfill Duties

Secure the Estate

• Take possession of the decedent’s property and ensure it is safeguarded.
• Store important documents and valuables securely.

Documentation

• Obtain certified copies of the death certificate for various administrative tasks.

Collect Assets

• Gather bank account funds, life insurance proceeds, annuities, Social Security benefits, and other assets.
• Check safe-deposit boxes for important documents or valuables.

Manage Digital Assets

• Handle online accounts, digital files, and subscriptions.
• Ensure email access for important notifications.

Notifications

• Inform the Franchise Tax Board and the Social Security Administration of the decedent’s passing.
• Cancel credit cards and subscriptions.

Tax Obligations

• Prepare and file the decedent’s final income tax returns.

Step 3: Identify Heirs

Determine Heirs

• Heirs are those entitled to inherit under California’s intestate succession laws.

Find Legal Assistance

• Consult a lawyer to resolve complex situations, such as determining heirs when family relationships are unclear or disputed.

Step 4: Inventory the Decedent’s Property

Identify Property Types

• Real property includes land, buildings, and long-term leases.
• Personal property includes tangible items, such as cars and jewelry, and intangible items, e.g., stocks and bonds.

Assess Ownership and Value

• Determine how each asset was owned (separately, joint tenancy, or community property).
• Assess the value of each asset as of the date of death.

Create an Inventory

• List all assets and debts, including descriptions, ownership details, and values.

Step 5: Determine the Best Transfer Process

Simplified Procedures

• Some estates qualify for simplified transfer procedures.

Formal Probate

• If the estate does not qualify for simplified procedures, a formal probate process in court may be necessary.

By following these steps, the estate can be managed efficiently, ensuring that assets are distributed according to California’s intestate succession laws.

Probate an Estate Without a Will – and Without an Attorney

Need help navigating probate without a will? We can help.

You do not need an attorney to probate an estate without a will in California. If you need help preparing probate forms, contact A People’s Choice. We provide legal document preparation services across California and file probate in all counties, saving you thousands of dollars in attorney fees. Our services offer an inexpensive and stress-free way to navigate the probate process.

Call us today at 1-805-658-5540 to learn more about how we can assist you.

FAQs

What happens if you die without a will in California?

When someone dies without a will in California, their estate is distributed according to California’s intestate succession laws. This means the assets are divided among the surviving spouse, children, and other close relatives based on a predefined hierarchy.

How long does probate take in California without a will?

Probate typically takes about 9 to 11 months but can extend beyond a year if a federal estate tax return is required. The duration depends on the complexity of the estate and the number of heirs.

How to apply for probate without a will?

To apply for probate without a will, a family member or interested party must file a petition with the probate court. The court will then appoint an administrator to manage the estate and oversee the distribution of assets.

How to get a grant of probate without a will?

A grant of probate, or letters of administration, can be obtained by filing a petition with the probate court. The court will review the petition, appoint an administrator, and issue letters of administration, giving the administrator the authority to manage and distribute the estate.