Probate Without a Will in California: What Happens Next

When a parent or spouse dies and the family discovers there’s no will, the first question is usually some version of “now what?” The second question, once the initial shock wears off, is whether the absence of a will changes who inherits, who’s in charge, and how long this will take.

In California, the answers are governed by a specific set of statutes most families never knew existed, and the outcomes can be surprisingly different from what the person who died would have wanted.

What Does “Intestate” Mean?

A person who dies without a valid will dies “intestate.”

The estate then passes under California’s intestate succession laws, found at Probate Code §§ 6400 through 6414. These statutes do not care what the deceased said at the dinner table, what they promised in an email, or what family tradition dictates. The statutes apply mechanically to every intestate estate in California, and the court follows them regardless of anyone’s preferences.

A few categories of assets bypass intestate succession entirely: property held in a properly funded living trust, accounts with named beneficiaries (life insurance, retirement accounts, transfer-on-death accounts), and property held in joint tenancy with right of survivorship. Those pass by their own rules. What remains, assets held solely in the decedent’s name, is what runs through the intestate succession machinery.

Who Inherits? The Basic Rules

California is a community property state, which changes everything when a married person dies without a will.

Under Probate Code § 6401, the surviving spouse inherits all community property outright. Separate property, however, depends on who else survives the decedent:

• Spouse with no children, parents, or siblings: Spouse inherits the entire separate property estate.
• Spouse and one child (or issue of one deceased child): Spouse takes half of separate property; the child (or their issue) takes the other half.
• Spouse with no children but surviving parent(s) or sibling(s): Spouse takes half; the parents or siblings take the other half.
• Spouse and two or more children: Spouse takes one-third of separate property; the children divide the remaining two-thirds.

The share passing to children is determined “by representation” under Probate Code § 240, meaning a predeceased child’s share passes to their surviving issue (grandchildren).

When There’s No Spouse

If the decedent had no surviving spouse, Probate Code § 6402 sets out a strict hierarchy. Each category must be empty before the next one inherits:

• Children and their issue (grandchildren, great-grandchildren)
• Parents, if no issue
• Siblings and their issue (nieces, nephews), if no parents
• Grandparents and their issue (aunts, uncles, cousins), if none above
• Issue of a predeceased spouse, if none above
• Next of kin by degree of relationship
• Parents or the issue of parents of a predeceased spouse
• If nothing else, the estate escheats to the State of California under §§ 6404 and 6800

California’s rules are designed to keep assets within the family. Escheat is rare because the hierarchy extends all the way to distant cousins, but it does happen when no traceable relatives exist.

Registered Domestic Partners Are Treated as Spouses

California recognizes registered domestic partners under § 6401 with the same inheritance rights as married spouses. This is meaningful for couples who never formally married but are registered with the Secretary of State.

Unmarried partners without registered domestic partnership status have no inheritance rights under intestacy, regardless of how long they lived together or how clear the deceased’s wishes may have been.

What About Stepchildren and Foster Children?

Stepchildren and foster children generally do not inherit under intestate succession unless they can establish a legally recognized parent-child relationship.

The exception is narrow and fact-specific: under Probate Code § 6454, a stepchild or foster child may inherit if the relationship began during the child’s minority, continued through the parties’ joint lifetimes, and the stepparent or foster parent would have adopted the child but for a legal barrier. This is rarely met in practice.

Who Runs the Estate Without an Executor?

When there’s no will, there’s no named executor. The court appoints an “administrator” instead, following the priority order in Probate Code § 8461:

• Surviving spouse or registered domestic partner
• Children
• Grandchildren
• Other issue
• Parents
• Brothers and sisters
• Issue of brothers and sisters
• Grandparents
• Issue of grandparents
• Other next of kin

If multiple people have equal priority and cannot agree, § 8467 lets the court appoint the public administrator or a disinterested person. The administrator must be a competent adult (18 or older) and is generally required to post a bond unless all heirs waive it in writing.

The administrator’s duties are essentially the same as an executor’s: collect assets, pay debts and taxes, file required inventories and accountings, and distribute what remains. The difference is that the administrator follows the intestate succession statutes rather than the deceased’s written wishes.

The Probate Timeline Without a Will

Probate without a will tracks the same court-supervised process as probate with a will, with a few additional steps. A typical California intestate probate:

• Weeks 1 to 6: File the Petition for Probate (Form DE-111) in the Superior Court for the county where the decedent lived. Serve notice on heirs and publish notice in a local newspaper.
• Months 2 to 4: Court appoints the administrator and issues Letters of Administration (Form DE-150). The administrator receives Duties and Liabilities of Personal Representative (Form DE-147).
• Months 3 to 6: Administrator inventories all assets and files Inventory and Appraisal (Form DE-160) within four months of appointment. A probate referee appraises non-cash assets.
• Months 4 to 8: Creditor claim period runs (four months minimum). The administrator pays legitimate debts, taxes, and expenses.
• Months 9 to 18: Administrator prepares a final accounting, petitions for final distribution, and distributes remaining assets to heirs per §§ 6401 and 6402.

Full probate typically takes 9 to 18 months. Contested matters, missing heirs, or disputed assets can push it considerably longer.

When Simplified Procedures May Apply

Not every intestate estate requires full probate. Under AB 2016 (effective April 1, 2025), California expanded several simplified probate procedures:

• Small estate affidavit under § 13100, for personal property when the total estate is at or below $208,850 (increases to $239,700 for deaths on or after April 1, 2026).
• Petition to determine succession to real property under § 13151, for a primary residence at or below $750,000 in value, using Form DE-310.
• Spousal property petition under § 13650, to confirm a surviving spouse’s share without full probate.

These procedures still require filings, waiting periods, and court review, but they avoid the full 9-to-18-month probate process.

Planning Before It’s Needed

A basic estate plan (a will, a living trust, or both) lets you choose who inherits, who serves as executor or trustee, and how the assets are handled. It avoids the forced application of the intestate statutes, usually avoids full probate altogether, and saves the family months of court administration and thousands of dollars in statutory fees.

If someone in your family has died without a will, or if you’ve been putting off making one yourself, contact us to book a planning session.

References

1. California Probate Code §§ 6400–6414 (intestate succession generally).
2. California Probate Code § 6401 (intestate share of surviving spouse).
3. California Probate Code § 6402 (distribution when no surviving spouse).
4. California Probate Code § 6404 (escheat to state).
5. California Probate Code § 6454 (stepchildren and foster children).
6. California Probate Code § 6800 (escheat procedures).
7. California Probate Code § 240 (distribution by representation).
8. California Probate Code § 8461 (priority for appointment as administrator).
9. California Probate Code §§ 8467–8468 (multiple priority and waiver rules).
10. California Probate Code §§ 13100, 13151, 13650 (simplified probate procedures).
11. California Assembly Bill 2016 (2024), effective April 1, 2025.
12. Judicial Council Forms DE-111, DE-147, DE-150, DE-160, DE-310.