Passing Away Without a Will: Intestacy and How It Can Effect Your Estate

Passing away without a will is referred to as dying intestate. If you don’t have an estate plan with a will, the state has a plan for you. California’s intestacy laws will determine what happens to the property, money, and children of a state resident who passes away without a will.

As such, leaving a will is the best way to avoid surprises  if you were to pass away suddenly, including undesirable outcomes such as  a distant relative inheriting all your property or raising your minor child Still, how does state law decide who is next in line to receive your property if you pass away intestate?

The pecking order for determining who is entitled to your estate largely depends on your marital status:


If you pass away as a single person, your property will go to your children, if you have any. Otherwise, the property will go to your grandchildren or your great-grandchildren. If you don’t have any children or descendants, your property will go to your relatives in the following order of priority:

  • Your parents
  • Your siblings
  • Your nieces and nephews
  • Your grandparents
  • Your aunts and uncles
  • Your cousins
  • Your deceased’s spouse’s children
  • Your next of kin
  • To the parents of your deceased spouse


 In community property states such as California, most property acquired during marriage (except for gifts or inheritances) is considered Community property (that is, property owned jointly by both partners).  Separate property is owned by one spouse only. Separate property is property that a spouse brings into the marriage or receives via gift or inheritance during the marriage. Unless there is specific evidence to the contrary, the law assumes all assets belonging to a couple are community property.

If you are married and you pass away intestate, your spouse will receive all of your community property Further, if you don’t have any  children, parents, siblings, or nieces or nephews, your spouse would also  receive all of your separate property.

Your spouse would  receive one-half of your separate property, however, if you have one child or a descendant of a child (grandchild, great-grandchild, etc.) or you have parents, siblings, or nieces and nephews.

Your spouse will receive one-third of your separate property if you have two or more children, one child and one or more descendants of that child, or two or more descendants of that child. For example, if you have a child and grandchild or two great-grandchildren, your spouse will only be entitled to one-third of your separate property. Your child or grandchildren would be entitled to the rest.

Domestic Partnership

If you are in a registered domestic partnership, your partner will receive the same inheritance as though you were married.

Beneficiary and Title Designations

If you have a beneficiary designation, (i.e., designating a person  on your retirement account), that property will go to the person named on the designation form. If you own  property as joint tenants with  another person, the property will go to the other owner. All other property that is part of your estate will pass to your closest relatives, as described above.

What Happens to Your Children?

If you pass away intestate, you have minor children and there is another custodial parent, the court will need to appoint a guardian to care for them. Of course, this may not be the person you would have wanted to care for your children. You could avoid this outcome by having an experienced estate planning lawyer at Business, Estate and Tax Attorneys P.C. prepare a will that names the guardian of your choice.

How Our Orinda Attorneys Can Help You

If your loved one dies without a will, our Orinda CA probate attorneys can help. Business Estate & Tax Attorneys, P.C. can explain what to do when a parent dies without a will and help you seek your rightful inheritance. Our knowledgeable lawyers can also help you create a will or trust to give your property to whom you want. Contact us today to discuss your individual needs during a confidential consultation.