• Die Without A Will in California

When You Die Without A Will in California

When you die without a will in California, the decedent’s estate must go through the probate process. California intestate succession laws will determine who of the decedent’s surviving relatives receives his/her property as well as what percentage of the estate they will receive. Read on to learn more about what happens when you die without a will in California.

California Intestate Succession Overview

In California, a person who dies without a will dies intestate. California laws of intestate succession are used to decide who of the decedent’s surviving relatives will inherit his/her estate. Determining who the heirs are and what percentage of the estate they will receive involves answering a series of questions about the person who died. Some of these questions pertain to whether the decedent was married, if they have living or pre-deceased children, and what other heirs have priority in the line of succession according to California law to receive the decedent’s property.

What Happens When You Die Without a Will In California?

If the decedent is married and dies without a will in California, all of his community property interest will go to his/her surviving spouse. The surviving spouse can file a spousal property petition to prove ownership. The decedent’s separate property will be distributed as follows:

  1. The surviving spouse will receive all the decedent’s property if the decedent does not have any surviving children.
  2. The surviving spouse will receive ½ of the separate property if the decedent has only one surviving child, and ⅓ of the property if the decedent has two surviving children.

The surviving children will inherit their designated share.

Legal Consequences of Dying Intestate

There are several legal consequences of dying intestate, meaning when a person dies without a will. For example, who will inherit the decedent’s property? What happens to minor children? Are there any tax consequences?  These important questions are further addressed below.

1. Who inherits property when there is no will?

As mentioned above, the surviving spouse will inherit the decedent’s community and separate property if there is no will. If the decedent is not married at death, the decedent’s surviving children will take the decedent’s assets in equal shares. If there are no surviving children, the estate will go to the decedent’s parents. If the parents are deceased, the estate will go to the parent’s surviving issue (the decedent’s brothers and sisters). If the brothers and sisters have predeceased the decedent, their children will inherit a share of the estate. If the decedent has no parents, brothers, or sisters, his/her grandparents will inherit the estate. The oldest generation with surviving children will inherit the property. As you can see, a decedent who dies without a will may have his/her property distributed in a way completely different from what their intentions might have been when they were alive.

2. What happens to your children when you die without a will?

If the decedent planned accordingly, a nominated guardian would normally get custody of minor children. Without a will, however, the decedent parent has no say in who will be guardian of their child or children. Without a pre-designated guardian, the court will be left to appoint a guardian, typically a grandparent to care for the child. If the child has no grandparents, the nearest relative will be appointed. If the child has several relatives of the same degree, the court will appoint the best suited relative to serve as guardian. Unfortunately, if you die without a will in California, the care and destiny of your minor children will be out of your control.

3.   What are the consequences when you die without a will?

A decedent’s estate is considered a separate legal entity for federal income tax purposes. If you are the personal representative of someone’s estate, you may need to file a final personal income tax return for the deceased person as well as  an income tax return for the estate. Very large estates may also be required to pay federal estate taxes.

Income taxes for the decedent must be paid and a personal income tax return filed for the current year up to the date of his/her death. If the estate earns gross income over $600 during the tax year or if a beneficiary is a nonresident alien, a separate estate tax return (Form 1041) must also be filed. Only very large estates are subject to paying federal estate taxes. In fact, 99.5% of all estates will not owe any federal gift/estate tax. As of 2015, if the estate is valued over $5.43 million, a federal tax return must be filed. Any taxes due must be paid within 9 months.

If a loved one has died without a will, you will probably need some professional help to administer and settle the estate. Contact A People’s Choice for more information on how we can help you probate the estate. We can save you thousands of dollars as compared to hiring an attorney. Don’t take our word for it. Use our probate calculator to see just how much you will save using our services! Call 800-747-2780 today.

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By |2018-01-18T15:47:09-07:00December 28th, 2015|Estate Planning, Probate|9 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.


  1. Lori Bruce January 23, 2019 at 10:39 am

    Here’s my question during the time I was hospitalized for a breakdown my mom died in a hospital I don’t know where calif. Layed her to rest or how where do I start to find out

    • Sandy McCarthy February 2, 2019 at 7:31 pm

      Sorry I don’t have any tips to give you with regards to this issue.

  2. Lindsye January 4, 2019 at 3:11 pm

    I have a question ? If there are 4 children of the deceased and one of them has passed . Does the deceased child inherit there part?

    • Lindsye January 4, 2019 at 3:13 pm

      Does the child of the deceaced child inherit

      • Sandy McCarthy January 5, 2019 at 9:26 pm

        Possibly. Depends on a variety of circumstances.

  3. john mcdonald December 10, 2018 at 1:23 pm

    What happens if the deceased has no relatives but was living with a significant other(California). What rights and responsibilities does the Significant other have. My 79 yr old cousin’s Girlfriend of 35+ yrs passed away last week. Not sure if she had a will.

    • Sandy McCarthy December 13, 2018 at 2:45 am

      I do not know if the significant other has any rights if the decedent did not have a will. I would recommend that you speak with a lawyer.

  4. Rebecca Herrera November 15, 2018 at 1:07 am

    More of a question What happened to deceased parents estate if she is not married, has no will and one sibling does not divide the estate evenly with remaining siblings in california

    • Sandy McCarthy November 25, 2018 at 8:16 am

      Was a probate required to be filed? What are the assets? There are many questions that would need to be considered.

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