When There Is No Will (Intestacy)

Intestacy  Probate

Intestacy is the distribution of assets of a decedent who does not have a Will. The distribution is California’s default distribution due to lack of written instructions from the decedent.

As a general rule assets of a decedent pass first to the spouse, if no spouse, to children and grandchildren, if no children or grandchildren, to parents of the decedent. If decedent has no surviving spouse or lineal survivors, then assets are distributed to siblings of the decedent.  This general rule has exceptions and more scenarios and some are provided below.

Intestate Share of Surviving Spouse

For married couples and domestic partners distribution to the survivor depends on if the property is community property, quasi-community property or separate property.

“Community property” is all property acquired in California during the marriage.

“Quasi-community property” is property acquired outside of California during the marriage and is treated as community property.

“Separate property” of a married person is  property acquired before marriage and all property acquired by gift or inheritance

In intestacy all community property passes to the surviving spouse. The surviving spouse receives the entire separate property intestate estate if the deceased spouse did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

The surviving spouse receives one-half of the intestate estate when the decedent leaves only one child or the issue of one deceased child; when the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.

The surviving spouse receives one-third of the intestate estate when the decedent leaves more than one child, leaves one child and the issue of one or more deceased children, or when the decedent leaves issue of two or more deceased children.

No surviving spouse, but surviving issue; i.e. children or grandchildren.

Real and personal property passing when there is no surviving spouse but issue of decedent is living intestate distribution is to the to the issue of the decedent, in equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living those children of the deceased issue to take equally that share their parent would have taken if living.