If a California resident dies without a will or trust, they die
"intestate" and the laws of intestate succession are used to determine who
will inherit the estate. Determining the heirs of the estate involves answering a series of questions about the person who died.
The following discussion applies only to California residents and the
intestate succession law of other states may be different.
1. The first question is whether the decedent (the person who
died) was married.
If the decedent was
not married, the estate is distributed as follows:
1. To the decedent's children, who take in equal shares if they are in
the same generation.
2. If there are no children or other issue (issue is the legal term for
children, grandchildren, great-grandchildren, etc.) living, the estate goes to
the decedent's parents.
3. If there are no parents living, the estate is distributed to the
"issue of the parents." If the decedent had brothers or sisters, they
will inherit the estate. If there are deceased brothers and
sisters, and they had issue, the issue will inherit the share of the estate
that the deceased brother or sister would have inherited.
4. If there are no brothers or sisters, the decedent's grandparents will
inherit the estate.
5. If there are no living grandparents, then the "issue of the grandparents"
will inherit the estate. This could include the decedent's aunts and
uncles, or if there aren't any aunts and uncles, the decedent's cousins.
Generally, the oldest generation that has surviving issue will inherit, but if
there are deceased issue in that generation, their issue will inherit their
6. If there are no cousins, Probate Code section 6402 provides that the
estate will be distributed to "next of kin in equal degree," generally meaning
more distant cousins.
If the decedent was
married, the first question is whether the decedent owned
separate property, or a combination of the two. Community property is
generally defined as the assets acquired during marriage from earnings or salary.
Separate property is generally defined as assets brought into the marriage when the
decedent got married, inheritances to the decedent, or gifts to the decedent.
However, California case law provides many exceptions to these definitions,
and assets can change from community to separate property, or from separate to
community, by combining assets, by improving separate property with community
property, or by written agreement of the spouses, for example.
1. The decedent's community property goes to the surviving spouse, who may have to
file a spousal property petition to establish ownership.
2. The decedent's separate property is distributed as follows:
a. The surviving spouse receives all of the separate property if the
decedent is not survived by issue, parents, brothers, sisters, or children of
a deceased brother or sister.
b. The surviving spouse receives one-half of the separate property if
the decedent had only one child, or issue of a deceased child.
c. The surviving spouse receives one-half of the separate property if
the decedent left no issue, but left parent(s) or their issue.
d. The surviving spouse receives only one-third of the separate
property if the decedent left more than one child.
e. The surviving spouse receives only one-third of the separate
property if the decedent left one child and the issue of one or more deceased
f. The surviving spouse receives only one-third of the separate
property if the decedent left the issue of two or more deceased children.
However, all of the above considerations are irrelevant if the decedent
had a will or living trust. For more information about wills, click
here: Wills For information about living
trusts, click here: Living Trusts
How an asset is titled may also change who will own it
after one of the owners has died. See these pages for information about
property ownership: Joint Tenancy and
Tenancy in Common