When contemplating your death or that of a loved one, knowing what to expect can quell the anxiety of dealing with the court system.
Jump ahead to these sections:
- California’s Intestacy Laws Explained
- How Does California’s Community Property Laws Impact Probate If There Is No Will?
- How Does Probate Work in California If There Is No Will?
- Frequently Asked Questions: Dying Without a Will in California
Many people die without a will. When that happens, we use California’s intestacy laws to know who inherits, who has priority for administering the estate, and how to administer the estate.
In some situations, those left behind can transfer assets without going through the formal probate process, so it’s worth a little research upfront to avoid more work in the long run.
California’s Intestacy Laws Explained
When someone dies without a will in California, the state’s intestacy laws fill the gap to provide a standard framework for who should inherit. In addition, the intestacy laws also create a list of those with priority to be the personal representative. The intestacy laws provide consistent results so that there are no surprises, even if someone doesn’t leave a will.
While we often think of an inheritance as simply going to “next of kin,” the intestacy laws determine who should inherit, in what order, and in what proportion.
Before applying the intestacy laws to your situation, you will need to understand the decedent’s relatives. Relevant people who might be able to inherit are spouses, children, grandchildren, parents, siblings, and more. If any heir dies before the decedent, then that heir’s children might be able to inherit in their parent’s place.
How Does California’s Community Property Laws Impact Probate If There Is No Will?
California is one of only nine community property states in the United States. That designation creates the additional challenge of determining whether the decedent’s estate is community property, separate property, or a combination of the two.
In a community property state like California, the property of a married person falls into one of two categories: community property owned jointly by both spouses or the separate property of one spouse.
Identifying separate versus community property can be a source of major litigation. At its most basic, a spouse’s separate property refers to assets they acquired before marriage and gifts or inheritances that they kept separate from marital finances. Community property refers to assets acquired or that grew during the marriage.
Spousal Property Petition
If your spouse dies without a will, a Spousal Property Petition might be an option for transferring their remaining assets. This petition lets you request authorization to transfer their community property assets more quickly and easily than a formal probate.
At the hearing, the judicial officer grants or denies the petition. Other interested parties have the opportunity to contest the petition.
How Does Probate Work in California If There Is No Will?
A few different procedures exist in California to administer an estate without a will that depends on the size and contents of the estate. As a result, if you're thinking of filing probate, an excellent place to start is by creating an inventory of what the decedent had and whether any assets were transferred outside of probate.
Assets held in joint tenancy, in a trust, or that have a transfer-on-death deed or beneficiary designation were all transferred without a personal representative's intervention and the probate process.
After learning the general amount and type of assets, you can better decide what type of probate process to use.
Probate for small estates
If you stand to inherit personal property from a small estate, you might not need to go through the formal probate process. California considers small estates to be those worth less than $166,250, but the process cannot be used to transfer real estate.
The small estate process allows heirs to transfer personal property by writing an affidavit, and the California courts provide a sample affidavit and detailed instructions on their website. Keep in mind that any other heirs also have to sign this affidavit, so you can’t do it unilaterally.
The remaining option is formal probate when an estate does not qualify for the small estate or spousal petition processes. During formal probate, the court issues letters of administration to the personal representative to give them the authority to act on behalf of the estate.
The probate court holds a hearing to determine who to appoint as a personal representative. After that, the probate process continues outside of court. As the personal representative administers the estate, they may be required to file a Report of Sale and Petition for Order Confirming Sale of Real Property, a final estate plan, accounting, and final receipts to demonstrate that the personal representative distributed the assets.
Finally, the court discharges the personal representative after the personal representative concludes the business of the estate if the court is satisfied that the heirs and creditors received their payments as appropriate.
Frequently Asked Questions: Dying Without a Will in California
The probate code can give us a good idea of what happens in different situations, but keep in mind that some family and property situations create exceptions to these general rules.
Because of sometimes unforeseen exceptions, even people who are satisfied with the likely results of the laws of intestacy benefit from making a will.
What happens when your spouse dies without a will?
The death of a spouse usually creates the most simple scenario for applying California’s intestacy laws. The surviving spouse holds the highest place in the hierarchy of those who stand to inherit. They inherit all community property, but that may not be the case for separate property.
The surviving spouse only inherits the decedent’s entire estate if they were not survived by their children, parents, siblings, or children of a deceased sibling.
If the decedent had one child, the separate property is divided equally between the surviving spouse and the children. If any of the decedent’s children predeceased the decedent, then the child’s children can inherit.
Alternatively, when only the spouse and decedent’s parents survive the decedent, then the spouse and parents split the separate property equally.
When the decedent is survived by more than one child or the issue of multiple children, then the surviving spouse is only entitled to ⅓ of the decedent’s separate property.
What happens when a parent dies without a will?
Children enjoy the next priority level after the decedent’s husband or wife, so a child’s inheritance depends on whether or not there is a surviving spouse.
If a child survives their parents, then they and their siblings inherit any part of the intestate estate that does not go to the surviving spouse. The children inherit the entire intestate estate when there is no surviving spouse.
How long does probate court take when there isn’t a will?
The length of time it takes to administer an intestate estate varies based on many factors, including the size and complexity of the estate, the skill and diligence of the personal representative, and the cooperation of heirs.
The personal representative finds and secures the estate’s assets, pays any bills and debts, and distributes the remaining assets to the heirs. As a result, it can take longer to administer an estate with trickier assets to transfer or where documentation is missing.
The claims period can be a notable delay in estate administration. The personal representative must notify creditors that the estate is being administered. The creditor then has four months from the date the court issued the personal representative’s letters or 60 days after the date the notice was mailed, whichever is later. So, a personal representative that is slow to get notices out can create a lengthier administration than one who acts quickly.
If a personal representative needs to file final income taxes for the decedent or the estate, expect additional delays for the next tax filing season.
Who becomes the executor if there is no will?
When someone opens a probate case with the court, the court appoints a personal representative to administer the estate. Typically, testators name their representative in their will, so the court turns to the probate code to determine who to appoint when there is no will.
The probate code lists people who the court can appoint and in what order. The surviving spouse has priority, followed by children, grandchildren, other issue. If none exist, the court turns to the decedent’s parents, siblings, nieces and nephews, and then grandparents.
Many people lack surviving family, and the code establishes an exhaustive list of options to plan for almost any eventuality. The children of a predeceased spouse, creditors of the estate, and the public administrator can all be appointed. Finally, the statute provides that “any other person” can be appointed, although anyone in that category has the lowest priority.
The court can appoint more than one person as a personal representative and can use additional criteria to decide who to appoint if multiple people pursue the position. For example, the court can give preference to someone who stands to inherit. Multiple heirs can also pool their interests and nominate a personal representative.
Explore All of the Options if a Loved One Dies Without a Will
Between the high threshold for small estates and the spousal property petition, California offers some unique ways to simplify estate administration with there is no will. Taking stock and evaluating these options before filing anything can help you save time and money in the long run.
Keep in mind that even if they did not leave a will, the decedent might have set up their property to transfer without probate or much work in general. Always check any known assets to determine whether they have a payable-on-death beneficiary or are in a trust because that removes them from the probate process.
If probate seems necessary, consult the California courts website to find the correct court, instructions, and forms, and, of course, talk to an attorney about your case.
- California Probate Code. “Chapter 1. Intestate Succession Generally.” California Legislative Information. 1 January 2015 Leginfo.legislature.ca.gov