What Happens in an Intestate Estate

I recently had a client, Mac, come to me in complete distress. His mother passed away unexpectedly without a will. She had a small business, a home, and a surprisingly complex financial situation. Mac thought a simple transfer would suffice, but because there was no valid codicil updating her estate plan, and no will at all, he faced over $30,000 in legal fees and a nine-month probate process just to gain access to his inheritance. It was a completely preventable tragedy.

As an estate planning attorney and CPA with over 35 years of experience here in Moreno Valley, I’ve seen this scenario play out countless times. Dying without a will – dying “intestate” – isn’t the end of the world, but it does mean the state of California decides how your assets are distributed, not you. And that process can be significantly more expensive and time-consuming than if you had a properly executed estate plan. Let’s break down what happens when someone dies intestate in California, and what options might be available to navigate the process.

What is an Intestate Estate?

An intestate estate simply means a person died without a valid will. Even if someone started a will but didn’t sign it, or if the will is deemed invalid for any reason (improper witnesses, lack of testamentary capacity, etc.), their estate falls into the realm of intestacy. This triggers a specific set of rules outlined in the California Probate Code that dictate how assets are distributed.

How Does California Distribute Assets in an Intestate Estate?

The distribution scheme is surprisingly rigid. It prioritizes certain family members based on the absence – or presence – of a surviving spouse and children.

Here’s a general overview. Keep in mind, this gets complicated quickly with blended families, stepchildren, and other unique circumstances.

• Spouse and No Children: The spouse receives the entire estate.
• Spouse and Children (All Descendants are also the Spouse’s): The spouse receives the entire estate. This is the most common scenario.
• Spouse and Children (Some Descendants Are Not the Spouse’s): The spouse receives one-half of the community property, plus one-half of the separate property. The children divide the remaining separate property equally.
• No Spouse, But Children: The children share the estate equally.
• No Spouse, No Children, But Parents: The parents share the estate equally.
• No Spouse, No Children, No Parents, But Siblings: The siblings share the estate equally.
• And so on… The order continues down a line of relatives (grandparents, aunts/uncles, cousins) until a living relative is found. If no living relatives can be found, the estate “escheats” to the state of California.

What if the Estate is Small?

Fortunately, California offers a streamlined process for smaller estates. For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets. However, this affidavit only applies to personal property—bank accounts, stocks, etc. It doesn’t cover real estate.

What About Real Estate?

If the estate’s only significant asset is a primary residence, and its value is less than $750,000, there’s another option. You can file a ‘Petition for Succession to Real Property’ (Probate Code § 13151). This requires a court order but avoids the full formal probate process. It’s a faster and less expensive alternative, but it’s still a court process.

What if There’s a Dispute?

Intestacy often leads to family disputes, especially when blended families are involved or when the distribution isn’t what the decedent would have wanted. These disputes can drag out the probate process and significantly increase legal costs. Having an experienced attorney navigate these complexities is crucial.

Can a Surviving Spouse Expedite the Process?

Yes. The Spousal Property Petition (Probate Code § 13650) is the most efficient type of probate. It allows for the transfer of unlimited assets to a surviving spouse without the 4-month creditor period or full administration. It typically takes only one hearing. However, this only applies when all assets are going to the surviving spouse.

What if My Parent Died Out of State?

If a non-resident of California leaves property here (and it exceeds the small estate limits), you must open an ‘Ancillary Administration.’ This is a secondary probate that often runs parallel to the main probate in the decedent’s home state. It can add significant complexity and expense.

The CPA Advantage: Step-Up in Basis

As a CPA as well as an attorney, I’m uniquely positioned to help clients with the tax implications of intestacy. One of the biggest benefits of probate – whether formal or streamlined – is the “step-up in basis” for inherited assets. This means the beneficiary receives the asset with a tax basis equal to its fair market value on the date of death, potentially eliminating years of accumulated capital gains taxes. Proper valuation is key to maximizing this benefit.

Why Planning is Essential

Mac’s situation is a stark reminder of the importance of estate planning. It’s not about thinking about your own death; it’s about protecting your loved ones and ensuring your wishes are carried out. A simple will, trust, or even a healthcare directive can prevent a world of heartache and expense.

What determines whether a California probate estate closes smoothly or turns into litigation?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.