California Probate and Intestate Succession: What Happens Without a Will (2026)

California probate is handled by the Superior Court's Probate Division in the county where the decedent lived, and California is a genuine community-property state whose intestate succession rule for separate property turns on the number of surviving children, not on whether those children are shared with the surviving spouse.

Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.

How Probate Works in California

Every California county's Superior Court has a Probate Division or Department, for example the Superior Court of California, County of Los Angeles, Probate Department. California did not adopt the Uniform Probate Code and has no informal, clerk-only opening track. Every probate case requires a filed petition and a court hearing at which a judge appoints the personal representative; there is no way to open a California estate without at least one hearing.

Once an estate is open, California offers a meaningful way to reduce ongoing court supervision during administration: the Independent Administration of Estates Act, Probate Code sections 10400 through 10592. A personal representative can request full or limited authority under the IAEA to act on most estate matters through a notice-and-objection procedure rather than a separate court hearing for each action. Full authority lets the personal representative sell real property without court confirmation; limited authority still requires court approval to sell or encumber real property. The IAEA is not equivalent to a Uniform Probate Code informal track. It does not change how the estate is opened, since the initial petition and hearing are still required, and certain acts, including opening the estate, approving compensation, and settling the final account, always require court involvement even under full IAEA authority.

In a typical administration, the personal representative inventories and appraises the estate's assets, gives notice to creditors, pays valid debts and taxes, and then petitions the court, or proceeds under IAEA authority where available, to distribute what remains and close the estate.

California's creditor claims deadline also shapes how quickly a case can close. Under Probate Code section 9100, a creditor generally must file a claim by the later of 4 months after letters are first issued to the personal representative, or 60 days after the creditor is mailed or personally given notice of administration. Separately, Code of Civil Procedure section 366.2 imposes an absolute outer limit of 1 year from the date of death on most claims against a decedent, regardless of whether a probate case is even open. The California Courts Self-Help Center cites 9 to 18 months as typical for an uncontested formal probate, and other practitioner sources cite a similar 12 to 18 month range, with the fastest realistic uncontested case closing in around 8 months and contested or complex estates commonly taking 2 to 4 years.

Intestate Succession in California: Who Inherits Without a Will

California's intestate succession statute, Probate Code sections 6401 and 6402, is built around a distinction that trips up a lot of readers: it treats community and quasi-community property completely differently from separate property, and the mechanism for each is different from how most other states handle a surviving spouse's share.

For community property, Probate Code section 6401(a) gives the surviving spouse an intestate share equal to the one-half of the community property that belonged to the decedent. The surviving spouse already independently owns the other half outright under Probate Code section 100; that ownership is not inheritance at all, it is pre-existing. The practical result is that the surviving spouse ends up owning 100 percent of the community property once a spouse dies intestate. Quasi-community property, generally property acquired while married but living outside California that would have been community property had it been acquired in California, works identically under section 6401(b), with the spouse's pre-existing ownership of the other half coming from Probate Code section 101 instead.

For the decedent's separate property, however, Probate Code section 6401(c) uses a genuinely different formula, and this is the specific mechanism California readers most often get wrong: the split is driven by the number of surviving children, not by whose children they are. If no surviving issue, parent, sibling, or issue of a deceased sibling exists, the entire separate-property estate goes to the surviving spouse. If exactly one child survives, or the issue of one deceased child survives, or no issue survives but a parent or the issue of a parent survives, the surviving spouse takes one-half of the separate property. If more than one child survives, or one child plus the issue of one or more deceased children survive, or the issue of two or more deceased children survive, the surviving spouse takes only one-third of the separate property. Unlike many other states, California's separate-property split does not depend on whether the surviving children are also the surviving spouse's children; a blended family with children from a prior relationship follows the identical fraction as a family where every child is shared, because the statute counts the number of surviving children, not their relationship to the surviving spouse.

If there is no surviving spouse, Probate Code section 6402 sets the order: first to the decedent's issue, meaning children and further descendants, equally, or under Probate Code section 240 if they are of unequal degree; if none, to the decedent's parents equally; if none, to the issue of the decedent's parents, meaning siblings and their descendants; if none, to grandparents equally, or their issue; if none, to the issue of a predeceased spouse; if none, to the next of kin in equal degree; if none, to the parents of a predeceased spouse, or their issue; and ultimately, if no qualifying heir can be found, the estate escheats to the State of California.

One way to make sure your property goes to the people you actually choose, rather than following California's intestate succession order, is to have a valid will in place. recordinglaw.com's free California Last Will and Testament Generator can help you create one, with no account required.

Small Estate and Simplified Probate in California

California offers three distinct simplified transfer mechanisms, and they should not be confused with each other because each has its own threshold and scope. The small estate affidavit for personal property, Probate Code section 13100, currently applies up to $208,850, effective for deaths occurring between April 1, 2025 and March 31, 2028, when the threshold next adjusts under the statute's built-in 3-year cost-of-living cycle set by Probate Code section 890. It covers personal property such as bank accounts and vehicles, but excludes assets that already pass outside probate, such as jointly held, payable-on-death, transfer-on-death, or trust-held property. At least 40 days must pass after death before the affidavit can be presented to an asset holder, and no court hearing is required.

A separate affidavit for small-value real property, Probate Code section 13200, currently applies to real property, other than the decedent's primary residence, worth $69,625 or less, effective for deaths on or after April 1, 2025. And a streamlined petition to succeed to a primary residence, added and expanded by Assembly Bill 2016 (amending Probate Code sections 13150 through 13154 and repealing section 13158), applies for a primary residence worth up to $750,000 when the decedent died on or after April 1, 2025 through March 31, 2028, under Probate Code section 13152(f). That petition is filed with the Superior Court on Judicial Council Form DE-310; it is more streamlined than full formal probate but does still involve the court, unlike the two affidavit mechanisms.

California Does Not Have an Estate or Inheritance Tax

California has no state estate tax and no state inheritance tax. California's state estate tax was eliminated effective 2005, when it was tied to a federal state-death-tax credit that Congress phased out between 2002 and 2004. Only the federal estate tax can apply to a California estate, and only above the $15,000,000 per-person basic exclusion amount for 2026, confirmed directly on IRS.gov, up from $13,990,000 in 2025. Married couples can combine exemptions through portability for a combined shelter of up to $30,000,000, meaning the federal estate tax reaches only a small share of the largest California estates.

Do You Need a Probate Attorney?

Because every California probate case requires at least one court hearing, and because IAEA authority, small estate mechanisms, and the community-property versus separate-property distinction all interact, many California estates benefit from at least a consultation with a probate attorney, even when the case is ultimately straightforward. An attorney is particularly worth engaging when a will contest or dispute among heirs is likely, when the estate includes a business interest, when the family is blended, or when it is not obvious whether an asset is community property, quasi-community property, or separate property, since that classification directly changes how much a surviving spouse inherits under California's intestate succession statute.

For a broader look at how probate works across the country, see Probate by State.

Disclaimer

This article provides general information about probate and intestate succession in California as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in California, particularly where community versus separate property characterization, a contested estate, a business interest, or a blended family are involved. Figures, thresholds, and program details change and are adjusted periodically by statute; verify current details directly with the California Courts Self-Help Center or the California Probate Code before relying on any figure here.

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Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.

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