Intestate succession: The risks and complications of dying without a will

Dying without a will (or other testamentary document) in California can create burdensome complexities for the surviving intestate heirs. Court-supervised administration is commonly referred to as probate.


The California Probate Code authorizes certain simplified procedures to transfer a decedent's property to their heirs if the decedent had a "small estate" valued at less than $184,500 for a person who died before April 1, 2025 or an estate valued at less than $208,850 for a person who died on or after April 1, 2025. Probate may also be avoided if the decedent dies with only a primary residence having a gross value of $750,000 or less, excluding any mortgage or liens on the property. In most other circumstances, the decedent's assets must be probated. 


Court administration will be required to transfer legal title to property from the decedent to the heirs. Probate is public and time-consuming. It can also be expensive, either for the beneficiaries if the statutory fee exceeds the value of the services rendered, or for the lawyer, when the value of the legal services exceeds the statutory fee. Most probate proceedings take a minimum of 18 months and often last several years. Statutory attorney and administrator fees use the same schedule, which is based on the gross value of the estate assets as of the decedent's date of death, plus gains on sales and receipts, less losses on sales. For an estate valued at $1 million, the attorney and administrator fees each equal $23,000, totaling $46,000. This amount does not include extraordinary fees and direct costs. 


Probate may make it difficult to pay for the decedent's expenses easily and quickly. Administration may be delayed if the personal representative is irresponsible or disorganized.


California law provides that the heirs inherit when the decedent dies intestate. (Prob. Code, § 6400.) Who are the heirs?


The surviving spouse receives all the community property and a portion of the decedent's separate property. How much separate property depends on the existence of other heirs. The survivor will receive all the decedent's estate if the decedent died without issue (children and grandchildren), parents, or issue of the decedent's parents (siblings and their lineal descendants). 


The spouse receives one-half of the separate property if the decedent is survived by one child or the issue of that deceased child (i.e., grandchildren or more remote descendants). The survivor also receives one-half if the decedent had no issue but was survived by parents or their issue. The spouse receives one-third of the decedent's separate property when survived by more than one child or survived by at least one child and the issue of another deceased child, or the issue of at least two deceased children. (Prob. Code, § 6401.)


When there is no surviving spouse, the estate passes equally to the children or their issue. When the decedent dies without spouse or issue, the estate is distributed to the "next of kin." Next of kin are the decedent's parents; if there are none, the next of kin are the issue of the decedent's parents; if there are none, the next of kin are the decedent's grandparents; if there are none, the next of kin are the issue of the decedent's grandparents. If there are none, the law looks to the predeceased spouse's issue, the decedent's next of kin and then the predeceased spouse's next of kin. (Prob. Code, § 6402.) If none, then the property escheats to the state. (Prob. Code, § 6404.)


There is an arcane exception for real property acquired from a predeceased spouse. If the predeceased spouse died within 15 years of the decedent, and no issue survive, the real property in the intestate estate received from the predeceased spouse will pass to that spouse's issue, to the predeceased spouse's parents, or to the issue of the predeceased spouse's parents. For personal property, the time period is five years. (Prob. Code, § 6402.5.)


Who is a parent and child? Who are issue?


The relationship of parent and child is determined by the definition of child and parent at each generation. (Prob. Code, § 50.) A parent and child relationship exists between a person and the person's natural parents, and an adopted person and the adoptee's adopting parents. (Prob. Code, § 6450.) A natural parent does not always mean the biological parent. In Miles v. Gernstein, No. C099438, 2025 WL 942514 (Cal. Ct. App. Mar. 28, 2025), the court ruled that a biological mother who gave birth to a child using her ovum was not considered a parent to the child under an oral traditional surrogacy agreement.


A stepchild generally is not considered a child for the purposes of intestate succession in California unless the relationship began during the stepchild's minority and continued throughout the joint lifetimes of the stepchild and the stepparent. There must be clear and convincing evidence that the stepparent would have adopted the person but for a legal barrier. (Prob. Code, § 6454.)


How to avoid intestate succession 


Intestacy may be avoided by designating beneficiaries on bank and retirement accounts, using transfer-on-death deeds, or holding property in joint tenancy. The most effective means to avoid intestacy is to execute a will or revocable trust. 


A will takes effect upon death. It allows the testator to nominate a guardian for minor children, to nominate an executor to administer assets and allows the decedent to name the beneficiaries of the estate. A will is subject to probate.


A trust operates both during life and after death. It takes effect during life, can be changed while the settlor is competent and may become irrevocable upon death. It also permits designation of fiduciaries and the naming of beneficiaries. A trust can avoid court supervision. 


Failing to create a properly executed will, trust, or other testamentary document can lead to disputes among family members and litigation. In those situations, the unintended beneficiaries of a decedent's estate are the litigation attorneys.


John A. Hartog is a principal, and Mary T. Nguyen is a senior associate attorney at Hartog Baer, APC.