What Happens When You Die Without An Estate Plan?

If someone dies without a Trust or a Will, they die “intestate” and the laws of Intestate Succession are used to determine how the assets of the estate are distributed. Under California law, intestacy works as follows:

If the decedent (the person who died) was married, the first question is whether the decedent owned any community property, separate property, or a combination of the two. If there is community property, then the decedent’s community property share goes to the surviving spouse. The decedent’s separate property is distributed as follows:

• The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or sister.
• The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
• The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
• The surviving spouse receives only one-third of the separate property if the decedent left more than one child.
• The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
• The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.

If the decedent was not married, the estate is distributed as follows:

• To the decedent’s children, who take in equal shares if they are in the same generation.
• If there are no children or other issue living, the estate goes to the decedent’s parent.
• If there are no parents living, the estate is distributed to the “issue of the parents.” If the decedent had brothers or sisters, they will inherit the estate.
• If there are no grandparents, the then “issue of the grandparents” will inherit the estate.

Finally, if none of the above apply, Probate Code section 6402 provides that the estate will be distributed to “next of kin in equal degree.”