Many people do not have a will. In like manner, many people die without a will. As a result, when a person who lives in California passes away, their property and estate will be distributed based on inheritance laws found in Division 6 of the California Probate Code. More specifically, California inheritance laws also called intestate succession laws, provide how the decedent’s property passes to his/her immediate family members or other heirs down the line of genealogy. Keep in mind, assets held in joint tenancy or as community property with survivorship will go to the surviving party. In the same fashion, beneficiaries appointed on insurance policies and retirement accounts will also receive their benefit outside the probate process.
A People’s Choice has helped thousands of people settle the probate estate of a loved one. In this regard, below is an overview of California inheritance laws which describe what you may receive from your loved one’s estate if they die without a will.
Understanding Community vs. Separate Property Distribution
Property purchased or acquired during the marriage is considered community property. On the other hand, assets acquired before marriage are separate property. California inheritance laws also consider gifts and inheritances given to a spouse during marriage as separate property. It is important to realize this includes gifts acquired during the marriage.
A spouse can obtain a community property interest in property in many different ways. For example, community property consists of the salary of the deceased person. Also, a spouse may have a community property interest in all real estate purchased during the marriage in the decedent’s name. Keep in mind, a spouse can have a community property interest in property not titled in both names! Alternatively, a spouse accumulates a “quasi-community property interest” in property when community funds pay the mortgage, taxes and insurance on pre-marital separate property. Finally, decedent’s personal property acquired during marriage is also considered community property. This includes property not titled as community property with right of survivorship.
Distribution of Property Under California Inheritance Laws
California inheritance laws determine who gets what when you die. In other words, California inheritance laws control what surviving heirs receive the decedent’s assets. For example, under California inheritance laws, if a person dies without a will, the laws will distribute their property as follows:
- Spouse but no children, parents, or siblings – The surviving spouse will receive all of his/her community property assets. Spouse and parents split separate property assets.
- Children but no spouse – Surviving children will receive all of his/her assets proportionately. For example, three surviving children would each inherit a 1/3 share of the estate).
- Spouse and children – Surviving spouse inherits all the community property and 1/2 of the separate property. The amount of separate property inherited depends on the number of surviving children.
- Parents but no children, spouse, or siblings – Surviving parents receive all the decedent’s assets
- Siblings but no children, spouse, or parents – Surviving siblings inherit the assets proportionately.
- Spouse and siblings, but no parents – Surviving spouse and siblings inherit the decedent’s personal property.
California’s intestate succession laws do not provide rights of inheritance for stepchildren. If the decedent has no surviving heirs, his/her property will escheat to the state. California law requires surviving heirs to outlive the decedent by 120 hours to receive an inheritance under intestate laws. Contact A People’s Choice for more information on how to probate your loved one’s estate without a will.
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Sandy; Father got property in divorce from our mom, property paid in full prior to divorce, this is separate property, right?!
Father remarried but deed remained in his name only. Property never earned much increase in value (less then 40k as the property is in a protected land)
Father passed, surviving wife with multiple children & 2 step-children so community property transfers to step mom BUT the separate property secured prior to marriage I believe is protected under Separate Property and since it’s surviving wire with multiple children the separate property is 1/3 step mom and 2/3 surviving children & zero heir rights on the separate property with step children. Am I right? Next is there a time-line that the surviving children need to be aware of?
You probably should act immediately and file a probate case.
Hi Sandy. Hope all is well with you and staying safe. My husband inherited a house from his parents and I do understand that it is a separate property. That house was inherited free and clear. My husband took out a home equity loan (Actually a hard money loan, not sure if that’s the same) and used most of the money to invest and become a shareholder of an upcoming business and the rest of the loan he used to cover current living expenses. Unfortunately, that business fell through. And now the house is in the process of foreclosure because we can’t make any payments. I’m really heartbroken because that’s the only thing we have left to leave for our kids. My question is…is the contract he signed to invest a valid one even though I did not sign anything? He did talk to me about it before hand but I did not want him to invest on anything. He went through with it anyway. So is that contract valid since the money he used to invest came out of the house he inherited? Thank you.
Unfortunately your question is asking for legal advice. I would recommend you talking to an attorney if you need legal advice on this issue,
Jo,
My Mom passed away last year and my sibling is the executor/trustee of the Trust. Upon the death of my Mom I was to receive per the Trust (1) Specific Gifts, All shares of stock in my parents business, a California corporation, held by the Trustee shall be distributed in equal shares as follows: One (1) such share shall be distributed to my sibling who is the executor/trustee of the Trust and one (1) share shall be distributed to me. I have never received any paperwork telling me I am now part owner or equal shareholder in the company. My Mom has been gone for 10 months and now my sister is trying to sell the business to a relative but wants to let them pay the Trust instead of making them go to a bank and get a loan In turn setting it up so we get monthly income for 20 years. I do not want to do this. She is collecting rent but I am not being compensated in any way. My parents would not have approved of her doing this. What can I do and does she owe me back rent for the 10 months? And is what she is doing illegal? The Trust lawyer sent me a letter, stating “Under the authority of Probate Code section 16226, the Trustee notifies that she intends to sell the Trusts shares of stock. Is this legal?
Talk to an attorney. It sounds like you need legal advice.
Hello Sandy
I am resident of California and married. My spouse and I have a biological child. My wife has a biological daughter from a previous relationship. At the time of our marriage, my spouse’s daughter was 21 years old and she was not living with us. I have no familial relationship with my wife’s daughter. There was no desire and attempt to adapt my wife’s daughter. We have a house and we have no an intestate plan (i.e no will). In the absence of a will, my understanding of the Californian intestate succession law is that when I die before my wife, my wife inheres the house. After my death (without a will), can my wife produce a will that determine the estate inheritance between our biological daughter and her daughter (my stepdaughter)? Or is our daughter by default the sole inheritor of the estate?
Thank you
Your wife would have two biological children so I would assume without a will each would typically be entitled to 50%
Hi Sandy,
I will be receiving an inheritance soon along with a monthly income for 5 years. Am I required under California law to share any of this with my spouse? I was reading the law, and not clear about this. We aren’t getting divorced. I think I want to leave all I get to my daughter from another marriage. will I be able to do that?
Inheritance is typically separate property but if you have questions or concerns about making sure the assets stay separate, you may want to talk to an attorney.
Sandy, I hope you can give me direction in this unusual situation. My first husband and I divorced in the 70’s due to his infidelity and disrespect of the marriage. We had three wonderful children together. We agreed to remain on a friendly basis and that he will continue to support them through college and growth to adulthood. We agreed to file for divorce without the assistance of an attorney and divided the property in the same way. We split the value of our home and whatever assets we had 50/50. I agreed to receive child support but asked for no alimony. I was young and very naive and did not realize the consequences of such agreement. We had been married for seven years. I was the “good housewife” and mother. I had no work experience and no profession. I went to work as a secretary in order to support myself. Eventually John married a mail order bride from Thailand, a half-year younger than our daughter. I remarried a year or two later. I noticed right away that is bride was very “overprotective.” She did not want John to spend any time alone with one of his children. Whenever one of the children came home from college on a holiday, made a lunch date with their father, the bride found a way to insert herself into the the meeting. As years continued, and John and his new bride attended some family events, his bride did not participate much. Grandchildren were being born. John very obviously enjoyed them but was never able to spend any one-on-one time with them. As time went on and John was advancing into his late eighties (while his wife was in her late fifties), his wife told him that she wants a divorce because “his children had no respect for her.” John was shocked and desperate. At this point he had developed cancer and had become very dependent on his wife. The bottom line is that his wife said she will stay with him IF he leaves all of his property to her alone, and none to his children. She made him promise that he will not see his children nor his grandchildren any more, and that she will be “Number One.” For over a year before his death he was completely isolated from his family. When one of the children called him, he said “we just want to be left alone.” John finally died a while ago. Pan (his wife) called and advised my son of his father’s death. That was it. She did not say anything about his will. What I want to ask you is: is there a recourse for my children to challenge their father’s will? I would really appreciate your opinion on this matter. Thank you so much.
This is clearly a very sad and disturbing story, but not an uncommon one. Unfortunately I would not be able to give you any legal advice. You may be able to talk to the attorney about contesting the will that he may have signed under duress since he was dying of cancer. I would certainly seek out the advice of an attorney.
My wife’s mother has lived with a man who is still married for nearly 30 yrs. She has dementia and after her diagnosis her live in convinced her to change her will by removing her 2 children from receiving anything and all is to go to her 2 grandchildren. These are the children of her daughter, my wife.
Our children want to follow the original trust where the inheritence would go to the 2 adult children of their grandma. Can the grandchildren authorize a “deed of variation” so that all proceeds from the inheritence goes directly to their parents?
If not, is there anyway to pass on their inheritence to us their parents with out tax implications?
Thanks
Marc
If she changed her will after a diagnosis of dementia, the change may be invalid or voidable due to lack of capacity. Talk to an attorney for direction and advice on this issue.
My uncle passed with a will stating property(houses) to be sold and divided between his brothers and sisters (7) in total of siblings. How ever only 3 living rest have passed. So what happens if my uncle was never married and had no kids. And the rest of my uncles stuff in house(tool, tv, table, other) to be picked threw by siblings. We have been told that the dead siblings kids will be receiving what their parents would have if sibling was alive. How would this be correct a dead person cant go pick threw home items so how can they receive a cut for there kids.
If you need legal advice regarding your rights and remedies as a beneficiary in your uncle’s estate, I wouuld recommend that you speak to an attorney.
My dad died and his second wife kept everything and we dont even know if there was a will. She even kept my Grandparents stuff they didn’t even know..anything I could do?
Hi Greg – We are not lawyers so unfortunately we cannot offer legal advice. Would definately suggest you take to an attorney about your options. Once you’ve been given some direction, you can then reach out to us and see if we can help you with the paperwork.
Will the right to inheritance of the surviving spouse be terminated if the couple had been separated for years but they were not divorced, not legally separated nor annulled?
What right does a surviving spouse have in inheriting from the decedent, if any?
If decedent executed a will in favor of the children, will it rescind the inheritance of the surviving spouse IF decedent took off the surviving spouse as an heir to personal and separate property?
It sounds like you are looking for legal advice which we cannot provide. Remember, our articles are provided as general information. Would recommend you talk with a lawyer to get some direction on your rights. My gut feeling would be the terms of the Will would stand as there is no community rights that a long-term estranged could claim against assets. I believe a spouse can do whatever they want with separate property. Talk to an attorney!
Hi Sandy.
I live with my 89 year old father as i am his caretaker. I started suspecting that my older sister was “up to something” as she was way too nice to me along with coming to see my father much more often than usual, One day she comes over being overly nice to me yet i noticed she was nervous. My father informs me he is changing his will. I said ok but you just updated it less than 5 years ago, Asked him can i ask why. he replies ask your sister. I ask her she says ask him and back and forth, i get no answer but ask your sister, ask dad… I drop it,, She leaves to get us all lunch.. My dad pulls out all of his info re his estate and what the worth of it is as he said he wants me to know. Sister walks in puts a stop to it immediately, Right then i know that shes up to something, I get a voice activated recorder i go into kitchen where they both are at i put new batteries in the device in front of both of them,. I push record said now recording set it in the middle of the kitchen table and left the home. I came back approximately 2 hours later and cannot believe what was recorded, My fathers estate always was to be split between me and my 2 older sisters. we were all to get 1/3 of the estate. in the recording she has included her children and my other sisters daughter to all split 500.000.00 and has him giving me $20.000.00 a year!!! what is said on it is amazing and extremely disturbing as at one point my dad says your having me sign so many things is there anything left for me? then when she asks for the deed to house he responds why you gonna try and sell it out from under me??!!!!… Now to me this is gross undue influence my question to you is with this info I have what are my odds of winning if i contest the will upon his death if i outlive him that is?
I would not venture to guess your odds of winning but you may want to get legal advice from an attorney in the meantime and have a long conversation with your dad. Ask him for permission to record it.
My mom had a stroke 12 years ago.She died 3 weeks ago.My brother lives in Arizona and he came to California where my mom lived and owned her home and took her and the deed to the house after her stroke.Do I have any legal right to any of her estate.?
There are many questions. 1) How was title held? 2) Did your mom have a will or trust? 3) Was your brother on title to the house? Just because he took the deed does not mean he gets the house. Having that document is meaningless. It’s simply a public record and possession of it does not transfer ownership. Call us for help at 800-747-2780.
What if decedent in CA has two legitimate biological children, and then one illegitimate child who was never known about until late in life? No proof provided that adult half-daughter is actually biologically related, just statements from her mom. Is that considered a legal heir?
You would probably have to legally determine paternity in a court of law.
Greetings from Germany,
my godmother just died in CA and put me in place as “executer”. A Will is available. There are only siblings. Where can I can legal advice/assistance to handle the estate? What can be arranged from Germany?
The process is going to be determined by what your grandmother had in the way of assets. I would recommend you contacting our office by phone or email with these specifics. If filing probate is necessary, we can help you even if you are in Germany.
Sandy,
If someone in California dies intestate and has no spouse, children or living parents, can the siblings of the decedent (brother and sister) assign their rights to the estate to another family member, in this case a niece, the child of the decedent’s brother?
Thanks
A beneficiary can either waive their inheritance or assign it to someone else.
What happens w/ community property for spouse if their are also:
biological children (minor and adult)
stepchildren (minor and adult)
Hi Sandy,
If a family member passes away in California with a will, but no assets (just some personal property worth less than $5), does a notice to creditors need to be filed in the paper and must the will go through the court process? I am under the assumption that this process only has to occur when a person passes with assets that need to be distributed (ie, home, cash, etc) to beneficiaries.
Thank you.
Here is an article about various processes to settle a small estate. https://apeopleschoice.com/california-small-estate-probate-process/
Hello Sandy,
Our grandparents died and left their property to their 6 surviving children. They placed the properties in an LLC before the two years lapsed. Now they would like to sell the properties and dissolve the LLC. Will the proceeds from the sale still be considered an inheritance? Or, must they pay taxes because the properties went from a living trust to an LLC?
Thank you in advance for any help you can give.
-Sarah B.
Hi Sarah I would recommend you talk to a CPA about the tax implications.
My grandfather died and I was told in in his will. I was told by the executor of his estate, my uncle we would be receiving papers and to sign them. That was 6 weeks ago and now my uncle doesn’t respond to me. Is there a time limit on claims to the will? We don’t have a close relationship with my uncle so I’m not sure if he is trying to make us “miss” a deadline. Do such deadlines exist?
There are not really enforced deadlines under the law but you can check the probate docket in the county where your grandfather died to see if anything has been filed.
My mom left us six children her inherited property (we share it and the cost of upkeep & taxes) and some money in Spain. My bother just died. His US will leaves everything to his wife. They married and lived in California.
He never mingled his inherited property with their married assets, and she claimed didn’t even know about it. Does she get both his 6th of my mom’s property/money in Spain in addition to his US beneficiary IRA? She’s never been there and only just got a passport in order to process his death certificate there. Attorneys there want to know what California law dictates, besides Spanish inheritance law.
If his US will leaves everything to his wife, I would assume that include ALL property whether it was inherited property, separate property or community property. But California can only probate assets in California. Assets located in another state or outside the country would not typically fall under California jurisdiction and usually a 2nd probate proceeding would have to be filed in that other state or country. I would assume the terms of the California will, however, would stand. You may want to talk to an attorney about this. This is generally how it works.
A new will was done 6 months before grandmother died. She had a previous will. How do you find out what
was in that will?
ll
There is probably no way of finding out what the earlier will said as they are typically destroyed.
Greetings,
Who inherits an Estate if the two parties lived together, but never legally married. The woman walked away from the premises, packed up everything, while he was away at work and has been gone for 8 years. He recently passed away and has three siblings, but she’s trying to sue for ownership and wants to serve as Executrix over his Estate. Is this legal in the state of California?
Family can always file a counter petition, especially if there was no Will.