Who Inherits Without a Will — California Probate Code §§ 6400–6414

California's intestacy rules are in the Probate Code. They apply to "any part of the estate of a decedent not effectively disposed of by will", which "passes to the decedent's heirs as prescribed in this part" (§ 6400). That covers a person who left no will at all, and it can also cover only part of an estate, if a will does not dispose of everything.

The statutes work in two steps. § 6401 sets the share of the surviving spouse, if there is one. § 6402 then says who takes the rest — or everything, if there is no surviving spouse — in a fixed order of relatives. Two safeguards sit around those steps: a person must survive the decedent by 120 hours to count as an heir (§ 6403(a)), and if no one qualifies the estate goes to the state (§ 6404).

Intestate succession applies to property that a will does not effectively dispose of (§ 6400). It decides who the heirs are; it does not describe the court or non-court procedure for moving a particular house into their names, which is a separate question.

These rules have a start date: where the decedent died before January 1, 1985, the law applicable before that date continues to apply (§ 6414(a)).

The share depends on the kind of property. For community property, the surviving spouse's intestate share is "the one-half of the community property that belongs to the decedent under Section 100" (§ 6401(a)). For quasi-community property, it is "the one-half of the quasi-community property that belongs to the decedent under Section 101" (§ 6401(b)).

For separate property, the share turns on who else survives (§ 6401(c)). The spouse takes the entire intestate estate if the decedent left no surviving issue, parent, brother, sister, or issue of a deceased brother or sister (§ 6401(c)(1)). The spouse takes one-half if the decedent left only one child or the issue of one deceased child (§ 6401(c)(2)(A)), or left no issue but left a parent or parents or their issue (§ 6401(c)(2)(B)). The spouse takes one-third if the decedent left more than one child (§ 6401(c)(3)(A)), one child and the issue of one or more deceased children (§ 6401(c)(3)(B)), or issue of two or more deceased children (§ 6401(c)(3)(C)).

A few walkthroughs of separate property: spouse and one child — the spouse takes one-half (§ 6401(c)(2)(A)); spouse and two or more children — one-third (§ 6401(c)(3)(A)); spouse and a surviving parent but no issue — one-half (§ 6401(c)(2)(B)); spouse and only a sibling's child — one-half, because the statute counts the issue of a parent (§ 6401(c)(2)(B)); spouse and no issue, parent, sibling or sibling's issue — the entire estate (§ 6401(c)(1)). In each case the part that does not go to the spouse passes under § 6402 (§ 6402, opening paragraph).

Under § 6402, the part of the intestate estate not passing to the surviving spouse — or the whole estate if there is no surviving spouse — passes in this order, each step applying only if the earlier ones have no one: (a) to the issue of the decedent; (b) to the decedent's parent or parents equally; (c) to the issue of the parents or either of them; (d) to grandparents equally, or their issue if no grandparent survives; (e) to the issue of a predeceased spouse; (f) to the next of kin in equal degree; and (g) to the parents of a predeceased spouse or their issue (§ 6402(a)–(g)).

Where issue take, they take equally if they are all of the same degree of kinship to the decedent; if they are of unequal degree, those of more remote degree take in the manner provided in Section 240 (§ 6402(a)). Section 6402 begins with the words "except as provided in Section 6402.5", and § 6402.5 adds a separate rule for property attributable to a predeceased spouse: where the decedent had a predeceased spouse who died not more than 15 years before the decedent (real property) or not more than five years before (personal property), and there is no surviving spouse or issue of the decedent, that portion of the estate passes first to the predeceased spouse's issue, then parents, then issue of those parents, then the decedent's own next of kin under § 6402, and only if it would otherwise escheat to the state, to the predeceased spouse's next of kin (§ 6402.5(a), (b)). The "portion attributable to the predeceased spouse" is defined in § 6402.5(f) — broadly, one-half of the couple's community property that existed when the predeceased spouse died, and the predeceased spouse's separate property that came to the decedent by gift, inheritance or survivorship. For this purpose, "personal property" under subdivision (b) means personal property with a written record of title or ownership and an aggregate value of $10,000 or more (§ 6402.5(e)).

A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for intestate succession, and the heirs are determined accordingly (§ 6403(a)). If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir survived by 120 hours, the person is deemed not to have survived for the required period (§ 6403(a)). The 120-hour requirement does not apply if applying it would result in the escheat of property to the state (§ 6403(a)).

If there is no taker of the intestate estate under these provisions, the escheat statutes in Part 4 (commencing with Section 6800) apply (§ 6404).

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood, except as provided in Section 6451 (§ 6406). Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if born in the decedent's lifetime (§ 6407). A person related to the decedent through two lines of relationship takes only a single share, based on the relationship that gives the larger share (§ 6413). No one is disqualified from taking as an heir because that person, or a person through whom they claim, is not a citizen or national of the United States (§ 6411).

A lifetime gift to an heir counts as an advancement against that heir's share only if the decedent declared so in a contemporaneous writing, or the heir acknowledged so in writing (§ 6409(a)). A debt owed to the decedent is charged only against the debtor's own share (§ 6410(a)). How a particular house is then retitled to the heirs — through probate or a shortcut — is covered on the related pages on inheriting a house without probate and on property passing to a surviving spouse, linked below.

This page is general information, not legal advice. Read the enacted text linked below, and talk to a probate lawyer about a specific estate.