No Will? No Problem (Sort Of): How California Decides Who Inherits When You Don't

Most people picture inheritance as something you write down in a will. But what happens if someone dies without one? Does the government just keep everything? Not quite. California has a detailed rulebook for exactly this situation, found in Probate Code Part 2, called "Intestate Succession." Here's how it actually works, explained in plain language.

First, What Does "Intestate" Even Mean?

"Intestate" just means someone died without a valid will covering their property. It doesn't mean their stuff disappears or gets seized. Instead, California law steps in with a built-in plan — a kind of default will that the state applies automatically. Section 6400 lays out the basic rule: any part of a person's estate that isn't covered by a valid will passes to their heirs according to this legal formula.

Think of it like a fallback setting on your phone. If you never customize it, the manufacturer's default settings take over. Intestate succession is the state's default plan for your property.

Step One: What Does the Surviving Spouse Get?

If the person who died was married, the law looks at the surviving spouse first. Under section 6401, the answer depends on what kind of property is involved.

Community property and quasi-community property (generally, property earned or acquired during the marriage) is simple: the surviving spouse automatically gets the whole thing. Half of it already legally belonged to them. The other half — the half that belonged to the person who died — also goes to the spouse under the intestate succession rules.

Separate property (generally, property owned before the marriage, or received individually as a gift or inheritance) is split differently, depending on who else survives:

• If there's no surviving child, parent, sibling, or the child of a sibling — the spouse gets everything.

• If there's exactly one surviving child (or the descendants of one deceased child) — the spouse gets half.

• If there's no child, but a surviving parent or the parent's descendants — the spouse gets half.

• If there's more than one surviving child, or one child plus descendants of other deceased children — the spouse gets one-third.

So the size of the spouse's share of separate property depends heavily on how many children (or their descendants) are still living.

Step Two: What Happens to Everything Else?

Whatever doesn't go to the surviving spouse — or the entire estate, if there's no surviving spouse at all — gets distributed according to section 6402. This section works like a ladder. The law starts at the top and only moves down to the next rung if nobody is alive to take at the rung above:

1. Children (and if a child has died, that child's own children step into their place)

2. Parents, if there are no surviving children or grandchildren

3. Siblings (or their children — nieces and nephews), if there are no surviving parents either

4. Grandparents, if none of the above survive

5. Aunts and uncles (technically, the descendants of grandparents), if there are no surviving grandparents

6. The children of a deceased spouse from a prior relationship, if none of the above survive

7. More distant next of kin, using the closest relative available

8. The parents (or relatives) of a deceased spouse, as a last resort before the state gets involved

At each level, if there's more than one person who qualifies, they generally split that share equally. If someone at that level has already died but left children of their own, those children usually divide their parent's share among themselves — a concept the law calls "representation."

The Predeceased Spouse Wrinkle

Section 6402.5 handles a specific and fairly common situation: someone remarries, and years later dies with no surviving spouse or children of their own — but they inherited property from an earlier spouse who died first. Instead of letting that property automatically flow to the current person's own distant relatives, the law tries to trace part of the estate back toward the family of that earlier, deceased spouse. For real property, this rule applies if the earlier spouse died within the last 15 years; for personal property (money, belongings, etc.), it applies if that spouse died within the last 5 years. It's a fairness mechanism designed to keep property connected to the family it originally came from, rather than letting it drift entirely to whichever family happens to be around when the second spouse eventually dies.

What If Literally Nobody Qualifies?

This is genuinely rare, but the law has an answer: if no heir can be found under any of these rules, the property "escheats" to the State of California under section 6404. In plain terms, the state keeps it. This is the true last resort — the state only steps in when every single category of possible relative, all the way out to fairly distant kin, comes up completely empty.

Why This Matters

The core lesson here isn't really about memorizing the ladder — it's about what the ladder represents. California's default plan is reasonable for a lot of families, but it's still just a formula. It doesn't know that you wanted your best friend to inherit your house, or that you wanted one child to get more than another, or that you'd rather support a charity than a distant cousin you've never met. A will lets you write your own plan. Without one, you get California's plan instead — sensible, but generic, and not always what any particular person would have actually chosen.

This post explains the general framework of California Probate Code sections 6400 through 6404 and is provided for general informational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. Every family situation is different, and the actual distribution of an estate can depend on many additional facts and statutory provisions not covered in this summary.