Do you know who inherits from the estate of a person who dies without a will? What are the rules of intestate succession?
Not everyone plans for their death with a will or trust. In fact, more than half of all Americans let their loved one’s inheritances default to the laws of intestate succession.
These laws serve a critical purpose: If the decedent fails to create an estate plan, they guarantee that their assets will pass on to the family members closest to them in an organized way.
Within California’s intestate succession statutes, there are many terms, rules and caveats you should know about. Many of these are highlighted in our intestate succession chart, which can be found later in this article.
Review our California intestate succession diagram to learn more about the inheritance priority of heirs.
Understanding the Rules of Intestate Succession
Intestate succession laws can vary by state. In this article, we’re referring to the intestate succession laws of California.
Intestacy laws provide for a decedent’s assets to pass to their closest family members. Different heirs have different priority levels. For example, if a decedent died with a surviving spouse, their priority level generally is the highest, followed by the decedent’s children.
Because the rules of intestate succession specify what percentage of an estate each heir should receive, there is little ambiguity in terms of who is entitled to what.
While intestate succession laws have benefits, they also have downsides. For example, the estate of a decedent who was single or estranged from their family may end up passing to people with whom they weren’t close.
When there is no will, an administrator of the estate will be appointed by the court to oversee estate administration and distribute the estate according to California’s intestate succession laws. While an administrator’s role consists of many of the same responsibilities as the role of an executor, they are not the same. The job of an executor entails distributing the estate in accordance with the terms of a decedent’s will.
Explore more about the rules of intestate succession in the following sections.
Intestate Succession: Key Terms to Know
Intestate succession can be complicated. To better understand it, familiarize yourself with the four legal terms below.
Intestacy
The root of intestate succession, intestacy is the quality of dying without a will. When a person dies “intestate,” they leave behind what is known as an intestate estate, which is presided over by an administrator and distributed in accordance with state intestate succession statutes.
Partial Intestacy
Partial intestacy refers to a state of someone dying with a valid will, but the will not including the totality of their assets. The assets that are not included in the will are distributed in accordance with California’s intestate succession laws.
Escheatment
Escheatment refers to a decedent’s assets passing to their state because their heirs could not be located. Personal representatives, however, are given ample time to locate heirs, so escheatment is rare.
Affidavit of Heirship
Sometimes mistakenly called the affidavit of intestate succession, the affidavit of heirship lists the identification information for the decedent’s heirs. This is useful for probate-related tasks in which it is necessary to identify heirs.
What Is the Order of Intestate Succession in California?
Intestate succession is designed to provide inheritances to the closest family members of the decedent when the decedent dies without a will or their will does not dispose of the entirety of their assets. As such, the order of intestate succession begins with the decedent’s immediate family and extends out to distant relatives.
The following list shows the order of priority intestate succession follows:
- Surviving spouse
- Children
- Grandchildren
- Parents
- Siblings
- Nieces and Nephews
- Grandparents
- Aunts and Uncles
- Cousins
California Intestate Succession Chart
Due to the hierarchical nature of intestate succession, an intestate succession chart is the optimal way to show the priorities of heirs who stand to inherit from the decedent’s intestate estate.
Explore Keystone’s intestate succession chart below.
Survivors | Community Property | Separate Property |
Spouse and One Child or Grandchild From Predeceased Child | 100% to Spouse | 50% to Spouse, 50% to Child/Grandchild |
Spouse and Multiple Children or Grandchildren From Multiple Predeceased Children | 100% to Spouse | 33.3% to Spouse, 66.7% to Children/Grandchildren |
Spouse and Parents, No Children | 100% to Spouse | 50% to Spouse, 50% to Parents |
Spouse and Siblings, No Children | 100% to Spouse | 50% to Spouse, 50% to Siblings |
Children, No Spouse | 100% to Children | 100% to Children |
No Spouse, Children or Parents | 100% to Siblings, Then Nieces/Nephews, Then Grandparents, Then Uncles/Aunts, and Then Cousins | 100% to Siblings, Then Nieces/Nephews, Then Grandparents, Then Uncles/Aunts, and Then Cousins |
No Relatives of Any Kind | 100% Escheated to the State of California | 100% Escheated to the State of California |
Our intestate succession chart shows which heirs would receive what percentage of the decedent’s assets depending on which of them survive the decedent.
To understand this intestate succession chart, it’s vital to know the difference between how community property and separate property are handled.
Intestate succession in California when a decedent dies without a spouse will not involve any community property assets. That’s because community property laws — which state that any property acquired over the course of a marriage by either spouse belongs equally to both spouses (with limited exceptions) — only apply to married couples and registered domestic partners.
How Does Intestate Succession Work?
After a person dies, a loved one can visit their local health and human services agency to obtain the decedent’s death certificate, certified copies of which will be needed to file a Petition for Letters of Administration with the court and launch the probate process.
If the court confirms that a valid will does not exist, then it will appoint an administrator of the estate, who will be bound to administering the estate according to the laws of intestate succession.
Most of the time, this will be a straightforward process, but there are circumstances that can make it more complex, such as if the decedent had owned many real properties or if their heirs cannot be located.
Remember that you can hire a probate attorney to help you navigate the process whether you are the administrator or an heir. If you’re an administrator, your lawyer can assist with your ad
How Do You Calculate Intestate Succession?
The intestate succession procedure generally requires the administrator to divvy up assets among heirs. As indicated by the intestate succession chart above, how the division of property is carried out will depend on who the heirs are (i.e., their relation to the decedent) and whether the property to be divided is separate property or community property.
Community property belongs equally to both spouses and includes property acquired by either spouse over the course of a marriage.
Certain conditions could make community property laws not apply. For example, a spouse could have waived their community property rights through a prenuptial or postnuptial agreement.
Separate property consists of any property acquired prior to marriage. Similarly, any property received by a spouse as a gift or inheritance generally is considered their sole and separate property, unless steps are taken to transmute separate property into community property.
While the surviving spouse receives all the community property in intestate succession, the decedent’s separate property is divided between the spouse and children (if the decedent had any), or the spouse and other heirs.
If the decedent does not have a surviving spouse, then the decedent will not have community property, but their separate property will be divided among their children or other heirs.
Calculating an heir’s intestate succession share can be complicated for the administrator; however, a qualified probate attorney is always available to help accurately complete this step of the process.
Other Rules That Influence Intestate Succession
Along with determining the hierarchy of family members who will receive a portion of the decedent’s estate, intestate succession laws contain other rules to be aware of.
From the slayer rule to the laws governing posthumous births, these rules span a variety of situations. Review these rules to deepen your knowledge of intestate succession.
Posthumous Births
What happens when a person dies when their spouse is pregnant with their future child?
The posthumous rule ensures that even if a child isn’t yet born, they’re entitled to the same inheritance as their siblings. Essentially, a child being in utero when a parent dies doesn’t negatively impact their inheritance.
Slayer Rule
If an heir knows they stand to receive inheritance from a relative, but only if they die intestate, they might resort to using criminal tactics to get what they want. In other words, they might try to kill that relative.
The Slayer Statute, laid out in California Probate Code section 254, offers a solution to this problem. It states that if a person intentionally or feloniously kills an elderly or dependent decedent, they are not entitled to inherit from the decedent’s estate.
Obviously, a person who murdered their relative should not receive an inheritance, but before the slayer rule was instituted, many people got away with this kind of crime. The rule also serves as a deterrent, since it mitigates one of the main motivations someone could have for murdering a family member.
Advancement Rule
Another rule that prevents disputes is the advancement rule. It states that if a decedent gifts money or property to someone during their lifetime, the amount of the gift should not be subtracted from that person’s inheritance.
For example, if a father gives his daughter a gift of $50,000 a year before he passes away, and then leaves all of three of his children $100,000 each in a will, the daughter who received the $50,000 gift is presumably still entitled to her rightful inheritance without any reductions in her lifetime gifts.
This rule goes a long way in deterring jealous siblings from suing because their brother or sister received a large gift from the decedent during their lifetime in addition to an inheritance.
Half-Relatives
If a mother dies with one child from a previous marriage and one child from her current marriage, both children will be entitled to receive an equal portion of her estate under intestate succession. In other words, the marriage of a parent does not change their child’s status as an heir.
This is unlike stepchildren, who often are not entitled to anything under intestate succession unless they have been adopted (although there have been cases in which stepchildren have had priority intestacy rights over heirs).
Learning More About Intestate Succession
Our overview and intestate succession chart covered the broad strokes of what happens to property when someone dies without a will, but there are certainly more details to learn. If you’re involved in probate law or are about to serve as an administrator of estate, it’s a good idea to learn all you can about the process.
Remember that if you’re an estate representative, you can take the stress and guesswork out of administration by hiring a knowledgeable probate attorney. They can help in any capacity you’re comfortable with, from answering questions to guiding you the entire time.
Intestate Succession Cases and Examples
One way to broaden your perspective on intestate succession is to review some intestate succession examples to see how the cases played out. Here are some cases you can peruse to gain a better understanding of how intestate succession works:
While stepchildren typically don’t stand to inherit through intestate succession until every other family member has inherited, stepchildren occasionally can have priority intestacy rights over other heirs. Read this case study to learn more about the circumstances that can lead to this unusual type of situation.
Case Study: An Administrator Seeks Justice After Her Brother Was a Victim of Elder Abuse
Elder financial abuse is a growing problem affecting countless senior citizens. What’s worse, it frequently is not discovered until after seniors have died.
In one case, Keystone helped an administrator of an estate recover millions in stolen assets from abusers who posed as caregivers to steal from her brother, who had been suffering from severe mental illness before he died.
This case is a great example of how even seemingly straightforward intestate succession matters can have bad actors involved.
Intestate Succession in The California Probate Code
For the most reliable and detailed laws on anything related to intestate succession, the California Probate Code is the best source. This code details the laws related to probate in California.
Check out any of the following sections of the California Probate Code to learn more about intestate succession and related matters:
- Intestate Succession Laws: California Probate Codes: 6400-6414
- Details Involving Parents and Children: California Probate Code: 6450-6455
- Community and Separate Property: California Probate Code: 6401
- Laws for Appointing an Estate Representative: California Probate Codes: 7620-7624
The probate code of your state remains the ultimate source for gaining knowledge on anything related to estates, trusts, wills and intestate succession. Probate laws are not easy to navigate, so if you don’t have experience with them, keep in mind that a probate attorney is always available to help.
Keystone Law Can Answer Your Questions Regarding Intestate Succession
Intestate succession is the most common way an inheritance is passed on. While it’s typically a straightforward process, challenging situations can arise.
If you have questions about any part of the intestate succession process, don’t hesitate to contact Keystone Law. Our experienced probate attorneys specialize in trust and estate laws, and we regularly help heirs solve their inheritance problems.
Give us a call or fill out our contact form to request a free consultation. We look forward to meeting you.
