INTESTATE SUCCESSION – DYING WITHOUT A WILL

What happens when someone dies without a will (called, “dying intestate”)? Who gets what?

In California, when someone dies without a will, or with a will that does not dispose of all of his or her property, the laws of intestate succession determine who the decedent’s heirs are, and how much they will get of the estate.  These laws are statutory and cannot be modified even by the probate court.

If the decedent is married at the time of death, the spouse or registered domestic partner will receive all of the decedent’s community and quasi-community (marital) and property.  The spouse will also receive all of the decedent’s separate property if the decedent had no children, parents, siblings or nieces or nephews.  If even one of these relatives exists, however, the spouse will inherit the separate property as follows:

  • One child or grandchildren: one half.
  • No children or grandchildren, but a parent or either parent’s issue: one half.
  • More than one child: one third.
  • One living child and issue from one or more deceased children: one third.
  • Issue of two or more deceased children: one third.

The above also applies to putative spouses – people whose marriage is void or voidable because of some legal infirmity, but who believed in good faith that it was valid.  Note that this does NOT include common law marriage, which is not recognized in California.

When there is a spouse, the determination of what the non-spouses will receive is determined by Probate Code section 240: relatives of the same degree of kinship (all children, for instance, or all siblings) will share equally; for any of those relatives who are predeceased who have issue (children, basically) the issue will share in equal shares of what the prior generation would have received.  So if grandmother Greta dies, as to the property that doesn’t pass to her spouse: if, at the time of her death she had two living children, Chris and Carla, and two grandchildren of a predeceased child Courtney, then Chris would receive one-third, Carla would receive one-third, and Courtenay’s two children would each receive half of one-third, or one-sixth each.

However, if the decedent leaves neither children nor a spouse, the estate goes to the decedent’s parents in equal shares, or to the survivor of them.  If the decedent dies with no children, parents, or siblings, the estate goes to the decedent’s brothers and sisters in equal shares and to the descendants of the deceased brothers and sisters as provided in Probate Code Section 240, above.  If the decedent’s nearest living family members are nieces and nephews, then they each receive an equal share.

For more remote relatives, the distribution can get messy. In Estate of McCrary, the decedent left no children, parents, siblings, or grandparents, but did have two sets of surviving cousins. On the maternal side, there were four children of the decedent’s mother’s parents; on the paternal side, there were a total of 67 grandchildren and great-grandchildren of the decedent’s father’s parents. The trial court found that there were 18 children (living and deceased) of the decedent’s grandparents (i.e., first cousins), and therefore divided the estate into 18 shares. It distributed four eighteenths of the residue to the four maternal cousins, and fourteen eighteenths to be divided between the 67 paternal cousins, by right of representation, (so each first cousin received 1/18th, and the second cousins divided up the 1/18 shares that their parents would have received).

Probably the largest fortune to be distributed intestate was that of Howard Hughes: the estimated $2.5 Billion estate was - after years of court battles, forged wills and the debut of several previously unknown “wives” - ultimately split between his 22 cousins.