Most people facing this are in the middle of something hard. A parent or spouse has died. No will has turned up in the drawer or the safe. Brothers, sisters or a stepparent are asking who is in charge and what happens to the house. This page walks through the questions that come up most: who inherits, who is appointed to settle the estate, when probate can be avoided, and what happens to real estate.
What 'Dying Without a Will' Means Under California Law
A person who dies without a valid will is said to die intestate. Under Probate Code section 6400, any part of an estate not disposed of by a will passes to the person's heirs, meaning the relatives the law names. The California Courts call these rules intestate succession in the Judicial Council's Guide to property after someone dies.
These rules only reach property in the person's own name. A lot passes some other way:
- Property in a revocable trust. Probate Code section 13050 leaves it out of the estate's value for the simplified procedures, and a successor trustee handles it under the trust.
- Joint tenancy property. The same section also leaves it out.
- Payable-on-death and joint bank accounts. Under Probate Code section 5302, the money generally belongs to the surviving party or the named payee, and a will cannot change that.
- Policies and accounts with a named beneficiary. Life insurance and retirement accounts generally go to the person named.
How the property was owned during the marriage also matters. Community property is generally what a married couple acquired during the marriage. Separate property includes what one spouse owned alone. The intestate rules divide the two differently. The law also treats real property, meaning land and buildings, differently from personal property, meaning money, belongings and accounts, in several of the procedures below.
California's Intestate Succession Order: Who Inherits
Probate Code section 6401 starts with the surviving spouse. As to community property, the spouse's share is "the one-half of the community property that belongs to the decedent." The other half was already the spouse's.
Separate property is shared. Under the same section, the surviving spouse takes:
- All of it if the decedent left no children or other descendants, no parent, no brother or sister, and no children of a deceased brother or sister.
- One-half if the decedent left only one child or the descendants of one deceased child. The spouse also takes one-half if there are no descendants but there is a parent, or there are a parent's descendants.
- One-third if the decedent left more than one child, or one child plus descendants of one or more deceased children, or descendants of two or more deceased children.
Whatever the spouse does not take passes under Probate Code section 6402. The same rule applies to the whole estate when there is no spouse. That section begins with the decedent's "issue," the law's word for children, grandchildren and further descendants. If there are none, the property goes to the parents, and then to the parents' descendants, such as brothers, sisters, nieces and nephews. The section continues to grandparents and their descendants, then to the descendants of a spouse who died earlier, then to other next of kin, and finally to the parents of a spouse who died earlier and those parents' descendants.
A child's share. A child's share depends on two things: whether a spouse also survives, and whether the property was community or separate.
A son-in-law or daughter-in-law. A son-in-law is not the decedent's issue. If a child died before the parent, that child's share passes to the child's own descendants, not to the child's spouse.
The Probate Process When There Is No Will
The family's first question is often who is in charge. The court decides. Under Probate Code section 8460, when a person dies intestate, "the court shall appoint an administrator as personal representative," and it may appoint more than one.
The roles have separate meanings:
- Personal representative is the umbrella term. It covers anyone appointed to represent an estate.
- Executor is the person a will names.
- Administrator is the person the court appoints when there is no will.
Probate Code section 8461 sets the order of priority for appointment as administrator. It starts with a surviving spouse or domestic partner, then children, grandchildren, other issue, parents, and brothers and sisters. The list continues through more distant relatives, a public administrator, creditors and "any other person."
The case is opened in the probate division of the superior court. That is generally the court in the county where the estate may be administered, usually where the person lived. The court's authority is issued as letters of administration. Letters are the document that banks, title companies and others ask to see.
The administrator's job is to collect the property, pay the bills, and distribute what remains to the heirs. The Judicial Council's guide describes the personal representative's job the same way.
That includes the person's money. Bank accounts in the decedent's name alone are collected as part of the estate unless a simplified procedure applies. A house in the decedent's name alone generally needs probate unless one of the simpler procedures covers it.
Simplified Procedures for Smaller or Qualifying Estates
Smaller estates have another path. The California Courts' page Check if you can use a simple process to transfer property explains that some estates can be settled with "summary succession" procedures instead of full probate. These procedures work the same way whether or not there was a will.
The affidavit for collection or transfer of personal property. This is often called the small estate affidavit, and it comes from Probate Code section 13100. It can be used once 40 days have passed since the death. It applies when the gross value of the decedent's real and personal property in California does not exceed the limit. Some property is left out of that value, including the property described in Probate Code section 13050 (such as registered vehicles and joint tenancy property). With the affidavit, a successor can collect money owed to the decedent and receive belongings without letters. The statute's original figure is $166,250, adjusted over time. On the Judicial Council's form DE-300 Maximum Values, the limit is $208,850 for a death on or after April 1, 2025.
The petition to determine succession to the decedent's primary residence. The same form sets this limit at $750,000 for a death on or after April 1, 2025. The value is the gross value of the decedent's primary residence in California.
The affidavit for real property of small value. This limit is $69,625 for the same dates, measured by the gross value of all the decedent's real property in California.
The spousal or domestic partner property petition. Under Probate Code section 13650, a surviving spouse may ask the superior court for an order that administration is not necessary. The order covers property passing to the spouse. The petition may also ask the court to confirm the spouse's own share of the property.
The courts' page says these limits are updated every three years. The next update is set for April 1, 2028. The limit that applies depends on the date of death.
Real Property and the House When There Is No Will
What happens to the house usually comes down to one document: the deed, and how it shows title was held.
- Joint tenancy. The decedent's share passes to the surviving joint tenant. Probate Code section 13050 leaves it out of the estate's value. The change is generally documented with the county recorder rather than through probate.
- Sole ownership, no trust. The house is part of the estate. It passes through probate or through a qualifying simplified procedure.
- Tenancy in common. The decedent's share passes through the estate to the heirs.
- Community property with right of survivorship, or a trust. These pass outside intestate succession. The rules turn on the deed and the trust document.
Who has authority to sell, and whether a sale needs the court's approval, depends on how the estate is administered. Those questions belong with the probate attorney or the court.
Property tax. For transfers on or after February 16, 2021, Rev. & Tax. Code section 63.2 can exclude a parent-to-child transfer of a principal residence from reassessment. A grandparent-to-grandchild transfer can also qualify, but only if all of the grandchild's parents who are the grandparents' children have died. Several conditions apply:
- The home must become the child's principal residence within one year.
- The child must file for the homeowners' or disabled veterans' exemption within a year.
- A claim must be filed with the county assessor.
The claim is due within three years after the transfer, before a transfer to a third party, or before the eligible transferee stops living there, whichever is earlier. A claim filed within six months after a notice of supplemental or escape assessment is also timely. If the property has not passed to a third party, a later claim can still apply going forward, from the lien date of the year it is filed.
A value limit also applies, and the county assessor's office publishes the current figure. The assessor's office is also where questions about a reassessment or a claim go.
Families deciding what comes next can compare the choices in what to do with an inherited house and in keep, rent or sell an inherited house.
What the Administrator Does — and When the Estate Closes
Being named administrator can feel like being handed a job without instructions. In order, the work generally runs like this:
- Obtain letters of administration from the superior court, which give the administrator authority to act.
- Inventory the assets, including real property, bank accounts, vehicles, belongings and digital accounts, with their date-of-death values.
- Notify creditors. Creditors have a limited period, set by the Probate Code, to present claims.
- Pay valid debts, along with the costs of administration and any taxes owed.
- File the required income tax returns for the decedent and for the estate.
- Distribute the remaining property to the heirs, in the order the court confirms.
- Account to the court before the estate is closed.
A CPA, an enrolled agent or a tax attorney can review the estate's income tax returns and the tax basis of inherited property. An estate settlement checklist lays these tasks out side by side.
How long this takes depends on the estate. Real property, disputed creditor claims and tax questions all lengthen it. People sometimes ask about a "3 year rule" or a "7 year rule." California probate has no single rule by that name. The three-year period that does come up is the Rev. & Tax. Code section 63.2 claim window described above.
Sometimes heirs disagree about the administrator or about who inherits. A contested matter like that is a separate subject, handled by an attorney who litigates probate cases. The wider process is laid out in the California estate settlement guide.
If You Are Working Out What Comes Next
Settling an estate with no will means following an order the family did not choose, often while relatives wait for answers. Silver Lining Estate's Find Your Next Step questionnaire asks a few questions: the reader's role, whether a will or a trust has turned up, whether a house or other real estate is involved, and what the family is trying to work out. It then points to the guides and the kinds of professional help that fit a situation like this one.
