When someone in Santa Clara County dies without a will, the family’s questions usually come fast. Who gets the house? Does the surviving spouse inherit everything? What about the kids from a first marriage, or the brother nobody has spoken to in years?
California answers those questions with a fixed set of rules called intestate succession, found in Probate Code sections 6400 through 6414.
What “Intestate” Means Under California Law
A person dies “intestate” when they leave no valid will, or when their will does not dispose of all of their property. Under Probate Code section 6400, anything not effectively given away by a will passes to the decedent’s heirs as the law prescribes.
An “heir at law” in California is anyone, including a surviving spouse, who is entitled to inherit under these rules. Being an heir has nothing to do with closeness or who provided care in the final years. It is determined entirely by legal relationship and the order set out in the statute.
It also matters what intestacy does not reach. Assets held in a living trust, property owned in joint tenancy, and accounts with a named beneficiary (life insurance, IRAs, 401(k)s, payable-on-death accounts) pass according to their own terms. Intestate succession only governs the property that was left in the decedent’s own name with no other instructions. Our guide to what assets are subject to probate in California walks through those categories in more detail.
Step One: Separate Community Property From Separate Property
For a married decedent, the first question is not who the relatives are. It is what kind of property is in the estate. California is a community property state, and Probate Code section 6401 treats the two types very differently.
Community property is generally anything acquired during the marriage by either spouse’s earnings or efforts. The surviving spouse already owns half of it. Under section 6401(a), the decedent’s half also goes to the surviving spouse. In practical terms, the surviving spouse ends up with 100 percent of the community property, no matter how many children or other relatives survive. Quasi-community property (property acquired while living in another state that would have been community property here) follows the same rule.
Separate property is property owned before the marriage, or received during the marriage by gift or inheritance, and kept separate. This is where other relatives can share with the spouse.
Registered domestic partners are treated the same as spouses for inheritance purposes under Family Code section 297.5. It is worth noting that this applies only to officially registered domestic partners. California does not recognize the concept of a “common-law” marriage.
When community property is passing to a surviving spouse, a full probate is often unnecessary. A spousal property petition can confirm the transfer through a simpler court process. Martin H. Bayer, the firm’s probate attorney, sees a recurring version of this problem with Bay Area homes: a married couple owns a house, one spouse dies, and nobody does anything with the title. Years later the second spouse dies, and the family discovers they may be facing two estates instead of one. A spousal property petition can often be used to confirm that the first spouse’s interest passed to the survivor, so that only the second estate needs to be probated.
The Surviving Spouse’s Share of Separate Property
For separate property, section 6401(c) gives the surviving spouse a share that depends on who else survives:
| Who else survives the decedent | Spouse’s share of separate property |
|---|---|
| No children, grandchildren, parents, siblings, or nieces and nephews | All of it |
| One child (or the descendants of one deceased child) | One-half |
| No descendants, but a parent, or siblings or their descendants | One-half |
| Two or more children, or one child plus descendants of a deceased child | One-third |
Here is how that plays out. Suppose a San Jose woman dies without a will, survived by her husband and two adult children. The family home was bought during the marriage with both spouses’ salaries, so it is community property and goes entirely to her husband. She also had a brokerage account she inherited from her mother and never commingled. That account is separate property, so her husband takes one-third and each child takes one-third.
The distinction between the two types of property is not always clean. Refinances, remodels paid for with community funds, and accounts that mixed inherited money with paychecks can all blur the lines, and characterization disputes are among the most common sources of conflict in intestate estates.
When There Is No Spouse: The Order of Inheritance
Whatever does not go to a surviving spouse (or the entire estate, if there is no spouse) passes under Probate Code section 6402. Each level inherits only if no one survives at the level above it:
- Issue. Children, and the descendants of any child who died first.
- Parents. Split equally if both are living.
- Issue of parents. Brothers and sisters, and the children or grandchildren of siblings who died first.
- Grandparents or their issue. Grandparents, then aunts, uncles, and cousins.
- Issue of a predeceased spouse. For example, stepchildren who were the children of a spouse who died before the decedent.
- Next of kin. The nearest relatives by degree, with a preference for those claiming through the closest common ancestor.
- Parents of a predeceased spouse or their issue. Former in-laws and their descendants.
Only if this entire chain comes up empty does the estate pass to the State of California under section 6404, a result called escheat. It is rare, but it does happen with decedents who were truly alone.
How Shares Pass to Grandchildren, Nieces, and Nephews
When some members of a generation have died, California uses the method in Probate Code section 240 to divide shares. The estate is split at the first generation that has a living member, and the share of anyone in that generation who died is divided among their descendants.
Say a widower dies with three children, but one daughter died years earlier and left two children of her own. The estate is divided into three shares. Each surviving child takes one-third, and the two grandchildren split their mother’s third, so each receives one-sixth.
If all three children had died first, the division would start at the grandchild generation instead, and every grandchild would take an equal share regardless of which parent they came through.
Rules Families Often Miss
The remaining sections of the intestacy chapter fill in details that come up more often than people expect:
- The 120-hour survival rule (section 6403): An heir who does not survive the decedent by at least 120 hours is treated as having died first. This matters in accidents and in families where two relatives die within days of each other. The rule does not apply if it would cause the estate to escheat to the state.
- Property from a predeceased spouse (section 6402.5): If the decedent left no spouse and no descendants, but had a spouse who died within 15 years (for real property) or 5 years (for certain personal property), the portion of the estate that came from that earlier spouse may go to the earlier spouse’s family instead. This rule regularly surprises siblings who assumed they would inherit everything.
- Half-blood relatives (section 6406): Half-siblings inherit the same share as full siblings.
- Children born after death (section 6407): A relative conceived before the decedent died but born afterward inherits as if born during the decedent’s lifetime.
- Lifetime gifts and debts (sections 6409 and 6410): A gift made during life counts as an advance on an heir’s inheritance only if it was documented in writing as an advancement. A debt an heir owed the decedent is charged against that heir’s share.
- Citizenship (section 6411): An heir is not disqualified for not being a U.S. citizen. For families with relatives abroad, this is worth knowing, though locating and notifying heirs overseas adds real time to the case.
- Double relationships (section 6413): Someone related through two lines of the family takes only one share.
- Stepchildren and foster children: They do not inherit by default. Under Probate Code section 6454, a stepchild or foster child can inherit only if the relationship began when the child was a minor, lasted throughout both lives, and there is clear and convincing evidence the adult would have adopted the child but for a legal barrier. Legally adopted children inherit exactly like biological children.
Many of these rules are very nuanced and we have not covered every variation here. You should consult with a qualified attorney if you think any of these may apply to your situation.
Who Manages the Estate When There Is No Will?
With no will, there is no named executor. The court appoints an administrator, following a priority list that starts with the surviving spouse or domestic partner, then children, then other relatives. Most of the time the administrator is a family member. The court will usually require the administrator to post a bond unless the heirs waive it.
The administrator is entitled to statutory compensation, and many families are surprised to learn it is calculated on exactly the same percentage schedule as the attorney’s statutory fee. As Martin Bayer puts it, the personal representative and the attorney are each entitled to the same calculation under the Probate Code, which effectively doubles the ordinary fee schedule.
If there is no one willing or able to administer the estate or if the parties cannot agree to an administrator, the court may appoint a professional fiduciary as the administrator instead.
Does Every Intestate Estate Need a Full Probate?
Not necessarily. Bayer’s first question at an initial consultation is whether probate is really required at all. For deaths on or after April 1, 2025, heirs can collect personal property worth up to $208,850 with a small estate affidavit under Probate Code section 13100, without going to court. A separate petition under section 13151 can transfer a decedent’s primary residence worth up to $750,000.
In Santa Clara County, though, the primary residence limit rules out most homes, so a house left without a will or trust usually means formal probate, filed at the Downtown Superior Court at 191 North First Street in San Jose. Our article on what happens to a house during probate covers what families can expect while the case is pending.
Probate Is Not Always the Villain
Probate has a reputation as something to avoid at all costs. Bayer takes a more nuanced view. Probate is rigid and court-supervised, and that supervision is precisely what protects heirs. Court staff attorneys review the filings, and the judge confirms that each heir receives what the law says they are entitled to. Compare that to a trust with three children where one sibling serves as trustee and no court is watching. For an intestate family where relationships are strained, or where some heirs are distant relatives who barely know each other, the structure of probate can prevent the kind of self-dealing that would otherwise be too expensive to pursue.
If minor children are among the heirs, their shares cannot simply be handed over. Our article on protecting minor children’s inheritances in California explains the options.
Talk to a San Jose Probate Attorney
Intestate succession looks mechanical on paper, but the answers depend on questions that are rarely simple: whether property is community or separate, who all the heirs are, and whether a shortcut procedure applies. The Dayton Law Firm, P.C. represents administrators and heirs in probate matters in the San Francisco Bay Area, Silicon Valley, and throughout California. If a loved one has died without a will, contact our office or call 408-437-7570 to schedule a free consultation about the estate and your rights as an heir.