What is Intestate Probate

I recently had a client, Mac, call me in absolute distress. His mother passed away unexpectedly, and while she had a will years ago, she never updated it after her divorce. She’d written a codicil intending to remove her ex-husband as a beneficiary, but she never signed it. The result? That outdated will, and the ex-husband contesting the estate, costing Mac’s family over $30,000 in legal fees. It’s a heartbreaking scenario, and sadly, far too common.

Intestate probate, often referred to as probate without a will, is the legal process of administering an estate when someone dies without a valid will. It’s significantly more complex and time-consuming than probate with a properly executed will, and it’s governed strictly by California law. As an estate planning attorney and CPA with over 35 years of experience here in Moreno Valley, I’ve seen firsthand how devastating the consequences can be. It’s not just the emotional toll; it’s the financial burden, the delays, and the potential for family disputes.

What happens when someone dies without a will in California?

When a person dies intestate, the court will appoint an administrator—usually a close family member—to manage the estate. This administrator has similar duties to an executor named in a will: identifying and valuing assets, paying debts and taxes, and ultimately distributing the remaining property to the legal heirs. However, unlike an executor who operates under the clear instructions of a will, the administrator must follow a rigid set of rules defined by the California Probate Code, determining who inherits what. These rules prioritize certain family members, and the distribution can be drastically different from what the deceased might have intended.

Who inherits property in an intestate estate?

California’s intestacy laws follow a specific order of priority. The rules are complex, and depend heavily on whether the decedent had a surviving spouse and/or children.

• Spouse and No Children: The surviving spouse inherits everything.
• Spouse and Children (Not From the Spouse): The spouse and children will share the estate. The spouse typically receives one-third, and the children split the remaining two-thirds.
• Children, But No Spouse: The children inherit everything, divided equally.
• No Spouse and No Children: The estate goes to other relatives, starting with parents, then siblings, then more distant relatives.

It’s critical to understand that “children” include adopted children, and even stepchildren may be entitled to a share if they were legally dependent on the deceased.

How is Intestate Probate different from probate with a will?

The biggest difference is control. With a will, the deceased dictates exactly how their assets are distributed. Without a will, the state dictates it. This leads to several practical differences:

• Creditor Period: In a typical probate, creditors have four months to file claims against the estate. In an intestate probate, this period is the same, but the administrator is responsible for identifying all potential creditors, which can be a daunting task.
• Court Supervision: Intestate estates often require more extensive court supervision, increasing both the time and the cost of the process.
• Bonding: The administrator may be required to obtain a surety bond, an insurance policy that protects the estate against mismanagement.
• Potential for Disputes: Because there’s no clear directive from the deceased, intestate estates are more prone to family disputes over who is entitled to what.

Can I avoid Intestate Probate?

Absolutely. The best way to avoid intestate probate is to create a valid will or a trust. A will, even a relatively simple one, provides clear instructions for the distribution of your assets. A trust, on the other hand, can bypass probate altogether. As a CPA as well as an attorney, I can particularly emphasize the importance of proper asset titling within a trust. This minimizes capital gains taxes for your heirs—a significant benefit often overlooked. The step-up in basis at the time of death can save your family a substantial amount of money, but only if the assets are correctly held.

What if the Estate is Small?

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. This is a simplified process, but it has limitations. It’s generally suitable only for very small estates with limited assets.

What if there’s a Vacation Home 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 adds significant complexity and cost.

What causes California probate cases to spiral into delay, disputes, and extra cost?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

• Appearances: Prepare for the probate hearing.
• Steps: Follow strict procedural considerations.
• Organization: Maintain managing a probate case logs.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

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.