What Happens if Someone Dies Without a Will in California?
- Keystone News
- 850 Petitions
- Attorney-Client Privilege
- Attorney's Fees
- Caretaker Issues
- Competency/Undue Influence
- Evidence / Procedure
- Fiduciary Misconduct/Removal
- Lis Pendens
- Marriage and Community/Separate Property
- No Contest Clauses
- Non-Probate Transfers
- Petition for Instructions
- Powers of Appointment
- Real Estate Disputes
- Spendthrift Clause
- Statute of Limitations
- Probate News
- Probate Services
- Who We Help
What happens when someone dies without a will? How is a transfer of property after death without a will in California carried out? While dying without a will is rarely ideal, it happens often. When it does, the state’s intestate succession laws will generally determine which of the decedent’s surviving heirs stand to inherit from their estate.
While intestate succession laws can help ensure a decedent’s assets don’t end up with just anyone, a carefully constructed will or trust instrument is almost always the preferable option, since it would provide the decedent more control over the disposal of their assets after they die.
Discover how intestate succession laws work, what to expect during the probate process, and what steps you should take if a person dies without a will in California.
Probate in California Without a Will — How It Works
Probate is the process by which an executor/administrator (also called a personal representative) is appointed to manage a decedent’s estate and eventually distribute it to the appropriate beneficiaries and/or heirs. The personal representative can make distributions only after they’ve completed all the steps of the estate administration process.
To determine who receives a decedent’s money, property and personal belongings after death without a will, the probate court will first look to see if the decedent had arranged for their property to be disposed of through a trust, beneficiary designations, joint tenancy deed, or other non-probate transfer methods. If they hadn’t, it’s likely a formal probate will be required. The court will then proceed by appointing an administrator to oversee the decedent’s intestate estate.
What Is Intestate Succession?
Intestate succession is the name given to the process of handling the estate of a person who died without a last will and testament. Through intestate succession laws, which are laid out in California Probate Code sections 6400-6455, the state effectively decides who inherits a decedent’s property when the decedent dies without a will.
With intestate succession, the entitlement the decedent’s heirs have to the decedent’s property is automatic and determined entirely by the law. Furthermore, since intestate succession laws can generally not be contested, they do provide some protection by ensuring that the decedent’s property will go to their closest family members after they die.
Who Becomes the Administrator of the Estate?
When there is a death without a will in California, the court will generally appoint a close relative of the decedent (if they are able and willing to serve) to act as administrator of their estate. The administrator has virtually the same responsibilities as an executor with one notable exception: If an administrator was appointed to preside over the estate of a decedent who died intestate, they will be bound to the laws of intestate succession (whereas an executor is generally bound to the terms of a will).
First preference to serve as administrator is generally given to the surviving spouse; however, if the decedent did not have a surviving spouse or if their surviving spouse does not wish to serve, the court will have to appoint someone else. To view the hierarchy of who is given preference to serve as administrator of an estate, refer to California Probate Code 8461.
What happens if someone dies without a will and has no known heirs? In such instances, a public administrator may be appointed to administer the estate and locate heirs. If no heirs can be found, the decedent’s property would pass to the state.
The role of administrator requires time and diligence to perform correctly. If you’re exceedingly busy or have other obligations that could interfere with your ability to serve, it may be wise for you to refuse your appointment. The last thing you want is to be negligent with your administrative duties, because doing so could cause you to become the subject of a fiduciary misconduct claim.
What Happens When Someone Dies Without a Will and Leaves Behind Family?
While most people are adamant about their family receiving their property after they pass, many of them neglect to leave instructions for how this transfer of property after death should be carried out. If you’re someone with such concerns as “my parents died and left no will” or “there’s a death in my family and I have no idea what to do,” you can rest assured that as a close family member of the decedent, the law is on your side.
While having a will can be beneficial for the decedent in helping to ensure their final wishes are carried out, intestate succession laws can be just as effective if the decedent wished for their property to be divided amongst their closest surviving relatives. The only downside is that intestate succession laws determine the percentage share of the estate to which each heir is entitled, so if a decedent wanted to leave more of their property to a child who is financially struggling, they won’t have that option, as intestate succession would provide each of their children with the same percentage of their estate.
We go into more detail below about the inheritance each category of heir is entitled to under intestate succession laws.
A key factor in determining what the surviving spouse receives under intestate succession is whether the assets in question were owned as separate property or community property. While community property generally includes assets acquired by either spouse during the marriage (subject to some exceptions), separate property generally includes property that was acquired by a spouse prior to marriage, or as a gift or inheritance.
In general, the surviving spouse will inherit all of the community property in the event of their spouse’s death without a will. The spouse’s entitlement to the decedent’s separate property, on the other hand, will be determined by what other living heirs the decedent has (e.g., whether they have children) and get divided accordingly.
Probate attorneys are often asked by the children of decedents: What am I entitled to if my parents died and left no will?
The inheritance children receive in the case of a parent dying without a will in California depends on several factors, including whether the decedent was married and whether the decedent had other children. If the decedent has a surviving spouse, for example, the children generally will not be entitled to any of the community property, but they will be entitled to a percentage of the decedent’s separate property. On the other hand, if the decedent has several children but no surviving spouse, all the decedent’s property would be equally divided among them.
Other Family Members
When a decedent does not have a surviving spouse or children, it will likely be their parents or siblings who inherit from their intestate estate. Grandchildren can also inherit in certain situations, particularly if their parent was a child or sibling of the decedent and is also deceased.
Which Assets Are Excluded From the Intestate Estate When Dying Without a Will in California?
If there is to be a transfer of property after death without a will in California, it doesn’t necessarily have to be via intestate succession. This is because California’s intestate succession laws do not apply to all assets.
Assets Held in Joint Tenancy
When a property is held in joint tenancy, it means that it is owned equally by multiple parties; therefore, if a joint tenant dies, the surviving tenant(s) automatically receive the deceased tenant’s interest in the property. An advantage of joint tenancy versus some of the other ways of holding title is that property held in joint tenancy generally is not subject to probate. Nevertheless, there are instances in which a property once held in joint tenancy could be subject to probate and/or intestate succession (e.g., if the only surviving joint tenant dies without a will or if a joint tenant deed is successfully contested and there is no prior valid will disposing of the property).
Transfer-on-Death Assets and Payable-on-Death Assets
Transfer-on-death assets (such as securities or vehicles with a designated beneficiary) and payable-on-death assets (such as bank accounts and life insurance policies with a designated beneficiary) are generally excluded from intestate succession because they have beneficiary designations. In other words, they are assets that the decedent had designated via a deed or another type of legally valid document to either be paid or transferred to a specific beneficiary upon their death.
Beneficiary designations can be difficult to contest since the beneficiaries standing to immediately inherit an asset typically don’t wait very long to claim it; however, if one is successfully contested and the decedent died without a will, the asset at issue would become a part of the intestate estate and pass via the laws of intestate succession.
Assets Held in Trust
The creation of a revocable trust is perhaps the most common probate avoidance mechanism in California. Any property that had been transferred into the trust will not be regarded as belonging to the decedent’s estate; therefore, it will not pass down in accordance with intestate succession laws.
Rather, the person the decedent nominated as successor trustee will assume responsibility over the assets of the trust and distribute them to trust beneficiaries in accordance with the terms of the trust. Similar to the other assets mentioned in this section, the assets of a trust may become subject to intestate succession if a trust is successfully invalidated through a trust contest.
Actions to Take if a Person Dies Without a Will in California
Once you have a clear understanding of what happens when someone dies without a will, it’s crucial to know what to do if you find yourself in that situation. By making the right moves in a timely manner, you can decrease the odds of unforeseen issues arising and ensure that the process is carried out without incident.
While the administrator of the estate will be responsible for overseeing intestate succession and periodically reporting to the court, it does not mean other family members cannot also play an active role in administration. They may want to consider staying in close contact with the administrator and hiring a beneficiary rights lawyer to protect their interests.
What to Expect During Probate When There’s a Death Without a Will
According to California law, inheritance without a will cannot take place unless all the required steps of the probate process (if probate is required) are carried out.
When there is a death without a will, the probate process is launched by obtaining the decedent’s death certificate and delivering it to the probate court in the their county of residence.
During the initial probate proceeding, after the court has determined that there is no will, it will appoint an administrator for the estate. The person who serves in this role will have many duties, including:
- Preserving the decedent’s assets
- Paying the decedent’s creditors
- Taking inventory of all estate assets
- Preparing and filing estate accountings with the court
- Serving as a liaison to the probate court
- Ensuring that the assets are timely distributed to the decedent’s heirs
How Long Does Probate Take in California Without a Will?
The transfer of property after death without a will in California can be a complicated and lengthy process; however, because people cannot dispute intestate succession laws in the same way they can dispute wills and trusts, it is possible the process will be shorter with intestate succession.
Because of all the steps the administrator must complete during the probate process, California probate law, without a will or with a will, gives them a full year from their date of appointment to complete it, unless the administrator had to file a federal estate tax, in which case they have 18 months. In the event that the administrator cannot complete probate within a year, they must file a status report with the court and request an extension.
Advantages and Disadvantages of Intestate Succession Law
If you die without a will in California, intestate succession laws can help ensure your assets don’t end up with the state or in the hands of people who are not family, but there are still quite a few disadvantages of intestate succession to be aware of.
Perhaps the decedent wanted their kids to inherit most of their assets, but because of intestate succession, their surviving spouse will inherit almost everything. Or, perhaps the decedent wanted to leave their estate to a charity or someone who really needed it, but thanks to intestate succession laws, their estate will pass to a wealthy relative instead.
If a person dies without a will, they will also not have the option of disinheriting any of their surviving heirs, whereas with a will, they could have made their desire to disinherit a close relation explicit. Likewise, intestate succession cannot generally be contested since it is written into the law.
While there are certain instances in which the court may set aside intestate succession laws (e.g., if the court finds that an heir who stands to inherit under intestate succession perpetrated elder financial abuse against the decedent), it is rare for it to do so. Wills and trusts, on the other hand, can be contested if the document meets one or more grounds for contesting a will or trust.