What Happens If You Die Without a Will in California

Intestacy is what happens with no valid will. Making a valid one takes a signature and two witnesses present at the same time, and no notary.

Try the interactive version: enter your family shape and see who inherits

Without a will, a fixed statutory formula decides who inherits, and it doesn’t ask what you wanted. The formula turns on your marital status, your children, and whether an asset is community or separate property, and it applies the same way whether you meant to leave everything to your spouse or never got around to writing anything down.

A blended family shows what the default formula does

Separate property is where families are most often surprised, and a remarriage shows why. Say you remarried later in life, with two adult children from your first marriage and a current spouse who has no children with you. Before this marriage, you bought a rental property outright, so it is your separate property, worth $600,000. The house you and your spouse live in now was purchased during the marriage with both incomes, so it is community property.

If you die without a will, the house goes to your current spouse, but the $600,000 rental splits: your spouse takes one-third ($200,000) and your two children share the other two-thirds, $400,000. The community property home passes entirely to your current spouse (Prob. Code § 6401(a)-(b)). The rental is separate property, and because you leave two or more children, the one-third and two-thirds split applies (Prob. Code § 6401(c)(3)). Your children inherit directly from you. Your spouse doesn’t need to be their parent, and your spouse’s own children, if any, inherit nothing from your estate unless you legally adopted them. A will or trust is the only way to change any of this.

Your spouse takes all the community property but only part of the separate property

A surviving spouse can end up with everything or with a third, depending on the kind of property, because California is a community property state and intestacy treats the two kinds very differently (Prob. Code § 6401).

• Community and quasi-community property. Your surviving spouse takes their own one-half outright and inherits your one-half as well (Prob. Code § 6401(a)-(b)). The survivor ends up owning 100% of this property, but that is because they already owned half of it. Only the decedent’s half passes by intestate succession.
• Separate property. That’s what you owned before the marriage or received individually by gift or inheritance. Here the spouse’s share depends entirely on who else survives you: all of it, one-half of it, or one-third of it (Prob. Code § 6401(c)).

Whether an asset is community or separate decides who gets it

How each asset is characterized controls who inherits it, because your intestate shares turn entirely on this distinction. As a general rule, anything either spouse earns or acquires during the marriage from work or income is community property, owned equally by both spouses as it is acquired. Anything either spouse owned before the marriage, or received individually during the marriage by gift or inheritance, is separate property, even if the marriage lasted decades. A bank account opened before the wedding and never commingled with marital funds stays separate. A house bought with a paycheck earned during the marriage is community property, even if only one spouse’s name is on the title. Property can also become mixed: a separate property down payment on a home later paid off with community income can leave both spouses with a community interest and the contributing spouse with a separate property reimbursement claim. Sorting this out correctly, asset by asset, is one of the more contested parts of any intestate estate, and it is the kind of dispute a will or trust avoids by stating who gets what.

Where your family falls in the order of heirs

Find your family in the first column, and the other two columns show where community and separate property go. The table covers the situations that come up most often, from a surviving spouse with no other close relatives through the full order of relatives under Prob. Code § 6402 when there is no surviving spouse. Figures reflect Prob. Code §§ 6401-6402.5, current as of 2026.

Property from a first spouse can go back to that spouse’s family

If you inherited property from a spouse who died before you, part of your estate may go back to that spouse’s family instead of yours. The rule surprises even people who think they understand intestacy: when you later die intestate yourself, the portion of your estate attributable to that first spouse’s estate doesn’t necessarily follow your own family line. Under Prob. Code § 6402.5, it can revert instead to that predeceased spouse’s relatives. Real property reverts this way if the predeceased spouse died within the last 15 years. Personal property worth $10,000 or more reverts this way if there is written title reflecting the transfer and the predeceased spouse died within the last 5 years. It’s a narrow rule, but it matters most in second marriages and blended families, the situations where people most need a will to make their intentions explicit.

In practice the rule can send a rental property to your first spouse’s relatives instead of your own. Say your first spouse died eight years ago and left you a rental property outright. You never remarry and have no children. When you later die intestate, your estate would ordinarily pass down the Prob. Code § 6402 order, for instance to your surviving parents or siblings. But because your first spouse died within the last 15 years, the portion of your estate attributable to that rental reverts instead to your first spouse’s own relatives under Prob. Code § 6402.5, ahead of your own parents or siblings taking that particular asset.

The state keeps your property only when no relative can be found

Your property doesn’t go to the state unless no relative can be found anywhere in a long chain, and the idea that the state keeps what’s left is one of the most persistent myths about intestacy. California runs through a long, specific order of relatives before an estate escheats: children, then parents, then siblings and their children, then grandparents and their issue, then next of kin, then even the relatives of a predeceased spouse (Prob. Code § 6402). Escheat to the State of California happens only when no one in that entire chain can be found, which is extremely rare. For most families, some heir, however distant, exists and will inherit.

Dying without a will doesn’t avoid probate, and the fees run on gross value

Having no will doesn’t skip the court. If your estate exceeds the small-estate thresholds, an intestate estate still goes through the same court-supervised probate as an estate with a will, on the same statutory fee schedule, typically taking twelve to eighteen months in my experience. Both the attorney and the personal representative are entitled to a statutory fee under Prob. Code §§ 10810 and 10800, calculated on the gross value of the estate, meaning debts and mortgages are not subtracted first: a $1,000,000 house with a $700,000 mortgage still counts at $1,000,000 for fee purposes.

On a $1,000,000 estate, none of the $46,000 in statutory fees pays for choosing who inherits. It only pays for administering the estate the law hands to your family by default. That figure is split between the attorney and the personal representative, before any extraordinary fees under Prob. Code § 10811 for unusual work, and before the twelve to eighteen months of delay I typically see while the court process runs.

How the property changes hands depends on the asset

Knowing who inherits doesn’t tell you how the property moves, and the route depends on what the asset is and what it is worth. With no will, who inherits is decided by the intestate succession rules in Prob. Code § 6400 and following.

Real property. A house held in the decedent’s own name generally requires a court proceeding to transfer. Full probate is the default. A surviving spouse may be able to use a spousal property petition, which is faster. Where the real property value falls under the separate small-estate figure for real property there is a simplified petition route. What does not work is an heir signing a deed to themselves.

Bank and brokerage accounts. If the estate qualifies under the small estate threshold, which is $208,850 for decedents dying on or after April 1, 2025 under Prob. Code § 890, personal property can be collected by affidavit under Prob. Code § 13100 without probate. There is a waiting period after death before the affidavit may be used.

Accounts with a beneficiary named. Retirement accounts, life insurance, and payable-on-death accounts pass to the named beneficiary regardless of intestacy. They are not part of this analysis at all.

Vehicles. The DMV has its own transfer process for a deceased owner, which is usually simpler than people expect.

Frequently asked questions

Does my spouse automatically inherit everything if I die without a will in California?

No. Your spouse takes 100% of the community and quasi-community property because they already owned half of it, but your separate property is split under Prob. Code § 6401(c): all of it with no surviving children, parents, or siblings; one-half with one child or a surviving parent line; one-third with two or more children.

Who inherits if I die unmarried in California?

Your entire estate passes down the order in Prob. Code § 6402: first to your children (or their issue), then your parents, then your siblings and their issue, then grandparents and their issue, then issue of a predeceased spouse, then more distant next of kin, then a predeceased spouse’s parents or their issue. Escheat to the state happens only if none of these relatives can be found.

Do stepchildren or an unmarried partner inherit under California intestacy?

Generally no. Intestate succession runs to a surviving spouse and to blood or legally adopted relatives under Prob. Code §§ 6401-6402. A stepchild you never adopted and an unmarried partner take nothing by intestacy, which is why a will or trust is the only way to provide for them.

Does dying without a will avoid probate in California?

No. Intestacy changes who inherits, not whether the court is involved. An intestate estate above the small-estate thresholds still goes through a full, court-supervised probate under the same statutory fee schedule (Prob. Code §§ 10800, 10810), typically taking twelve to eighteen months in my experience.

Does the State of California keep my property if I have no will?

Almost never. The state works through a long chain of relatives, out to a predeceased spouse’s own family, before an estate escheats (Prob. Code § 6402). Escheat only happens when no one anywhere in that chain can be found, which is rare.

What is the one thing to remember about dying without a will in California?

California has already written a will for you. You just would not have chosen it. The state’s formula does not know your family, your wishes, or your blended-family arrangements. It applies the same fixed shares to everyone.