What Happens in an Intestate Estate

Emily received the call no one wants to get – her brother, Dax, had passed away unexpectedly. He was only 42, and while not wealthy, he owned a small condo and had a modest brokerage account. The problem? Dax never created a will. As his sister, Emily is now tasked with sorting out his estate through the California probate court, a process called intestacy. It’s already been three months, and the legal fees are mounting, quickly eating into what little inheritance remains.

As an estate planning attorney and CPA with over 35 years of experience here in Escondido, I’ve seen this scenario play out countless times. Clients often believe that if they die without a will, their wishes will automatically be carried out. Unfortunately, California law dictates how assets are distributed when someone dies intestate – meaning without a valid will. While the state aims for fairness, it rarely aligns perfectly with what the individual would have wanted. And, importantly, it introduces significant delays and costs.

What Does “Intestate” Actually Mean?

Intestacy isn’t a legal judgment about the validity of a document. It simply means a person died without a properly executed will. A handwritten will, even if signed, may not be valid if it doesn’t meet specific statutory requirements. Even a partially completed will is likely worthless. Similarly, a codicil – an amendment to an existing will – must be executed with the same formality as the original document. If a codicil is improperly signed or witnessed, it’s as if it never existed, and the estate reverts to intestacy. The consequences can be severe, particularly with the increasing complexity of modern asset ownership.

Who Decides How My Assets Are Distributed If I Die Without a Will?

California’s probate code has a specific order of inheritance. It starts with a surviving spouse and children. However, the distribution isn’t always 50/50. If there’s a surviving spouse and children, the spouse typically receives one-half of the community property and one-third of the separate property. The children then divide the remaining two-thirds of the separate property. This can create unintended consequences, especially if the decedent had significant separate property acquired before the marriage.

What If I’m Married But Have Children From a Previous Relationship?

This is where things get particularly complicated. If you have children from a prior marriage, and you die without a will, your current spouse will share your estate with those children. The exact percentages depend on whether the children are also children of the current spouse. If your current spouse remarries after your death, those children from the prior marriage may face a battle to protect their inheritance. This is a common source of family conflict, and a will can clearly delineate how these situations are handled.

What if I Don’t Have a Spouse or Children?

If you’re unmarried and have no children, the law looks to your parents, then siblings, then more distant relatives. If no relatives can be found, the estate escheats – meaning it goes – to the State of California. It’s a tragic outcome when someone’s hard-earned assets end up benefiting the state instead of a chosen charity or purpose.

What are the Different Probate Options for an Intestate Estate?

Depending on the value and complexity of the estate, several probate pathways might be available.

• Small Estates (The “Summary” Option): For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets.
• Spousal Property Petition (The “Fast Track”): This is the most efficient type of probate. It allows for the transfer of unlimited assets to a surviving spouse without the 4-month creditor period or full administration. It typically takes only one hearing.
• Real Estate < $750k (The "Middle Ground"): If the estate is too big for an affidavit but the only asset is a primary residence worth less than $750,000, you can file a ‘Petition for Succession to Real Property’ (Probate Code § 13151). This requires a court order but avoids the full formal probate process.
• Heggstad Petition (Avoiding Probate): Technically not a ‘probate’ type, but a remedy. If an asset was meant for the trust but listed in the decedent’s name, a Section 850 Petition can confirm it as trust property, allowing you to bypass the full probate administration entirely.

The full formal probate administration is the most time-consuming and expensive option, requiring court supervision, publication of notices, and potential creditor claims.

Why a CPA’s Perspective is Critical

As a CPA, I bring a unique advantage to estate planning. I understand the tax implications of asset distribution, especially the potential for a step-up in basis. This means inherited assets are valued at their fair market value on the date of death, potentially eliminating capital gains taxes on future sales. Proper valuation is crucial, and the IRS scrutinizes estate tax returns. Ignoring this can lead to significant penalties and interest. I’ve helped numerous clients minimize estate taxes and maximize the value of the inheritance for their heirs.

What Can I Do to Avoid Intestacy?

The solution is simple: create a comprehensive estate plan. This includes a will, but also potentially trusts, powers of attorney, and advance healthcare directives. It doesn’t have to be complicated or expensive. Even a basic will is far better than nothing. I recommend everyone, regardless of their net worth, consult with an experienced estate planning attorney to ensure their wishes are legally documented and their loved ones are protected. Don’t let your estate become another sad story like Emily’s brother, Dax.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

Ultimately, the difference between a routine distribution and a protracted legal battle often comes down to preparation. By anticipating the demands of the Probate Code and addressing potential friction points with beneficiaries and creditors upfront, fiduciaries can navigate the system with greater confidence and lower liability.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.