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If you die without a valid will, you are generally considered to have died “intestate” as to assets that pass through your probate estate. California’s intestate succession statutes—not your unwritten wishes—then determine who inherits those probate assets. Assets that pass by beneficiary designation, survivorship rights, or a properly funded trust may follow different rules.
For married people, the result can be especially surprising. Under California Probate Code section 6401, a surviving spouse generally receives the decedent’s one-half interest in community property. But separate property is divided differently. For example, if the decedent leaves a spouse and one child—or descendants of one deceased child—the surviving spouse generally receives one-half of the decedent’s separate property and the child or descendants receive the other half.
That means California law may produce a distribution very different from the one you would have chosen for your spouse, children, partner, other relatives, friends, or charitable causes.
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Not necessarily. Whether formal probate is required depends on how property is titled, the type and value of the assets, the date of death, and whether a simplified transfer procedure applies.
For deaths on or after April 1, 2025, California’s general small-estate threshold under Probate Code sections 13100–13101 is $208,850 for qualifying property. California also now provides a separate court procedure for succession to a decedent’s California primary residence with a gross value of up to $750,000 under Probate Code sections 13151–13154. Other exceptions and spouse-specific procedures may also apply.
If the estate does require formal probate, the process can create real burdens for a family:
- Public court process. Many probate petitions, inventories, orders, and other filings become part of the court record.
- Statutory compensation. California Probate Code sections 10800 and 10810 provide percentage-based ordinary compensation for the personal representative and the personal representative’s attorney, calculated from the value of the estate accounted for without deducting mortgages or other encumbrances.
- Time. California Courts states that a formal probate case typically takes about 9 to 18 months and can take longer, particularly when real estate, creditor issues, taxes, family disputes, or other complications are involved.
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An Advance Health Care Directive allows you to name the person you want to act for you and to document important treatment preferences. Without one, California law still provides a framework—but it may not put the person you would have chosen in control.
Under Probate Code section 4712, if you lack capacity and there is no already-recognized decision-maker, a health care provider or facility designee may select an appropriate surrogate. That person may be a spouse or domestic partner, adult child, parent, adult sibling, adult grandchild, another adult relative, or a close personal friend. The surrogate must be reasonably available, willing to serve, and familiar with your values and beliefs to the extent known
- Family disagreement. When relatives disagree, treatment decisions can become slower, more stressful, and more difficult to resolve.
- Your preferences may be unclear. Without written instructions, the people making decisions may have to reconstruct your wishes from prior conversations and what they know about your values.
- Court involvement can still become necessary. In some situations—particularly when authority is disputed or broader legal powers are needed—a conservatorship or other court proceeding may be required.
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A spouse or family member does not automatically receive blanket authority to act as your financial agent simply because you become incapacitated. Authority can depend on how property is titled, whether it is community or separate property, whether an account is jointly owned, and whether you have signed a durable power of attorney or created a properly funded trust.
Without adequate planning, banks, title companies, and other institutions may require formal proof of legal authority before allowing someone to manage individually owned assets, sign documents, access accounts, or complete real-estate transactions. If no practical alternative is available, a family member or other interested person may need to ask the court to establish a conservatorship of the estate—a proceeding that can involve court oversight, professional evaluations, accountings, time, and expense.
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If both parents die and no effective guardian nomination is in place, the court must determine who will care for the children. A parent can nominate a guardian in a will, but the court ultimately makes the appointment under California law.
- The court applies the child’s best interests. A judge—not the deceased parents—makes the final legal determination.
- Disputes are possible. If multiple relatives or other interested adults seek appointment, the family may face a contested guardianship proceeding.
- A child’s inheritance may require separate management. If a minor inherits property outright, the court may appoint a guardian of the estate to manage that property under court supervision. Without a trust or other planning structure, assets held for the child may ultimately become available to the child at age 18.
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| Ready to put your family’s plan in writing?
A thoughtful estate plan can help you choose who receives your property, who can act for you during incapacity, who you want considered as guardian for minor children, and how your family can avoid unnecessary uncertainty. Contact Collins Law Group at 310-677-9787 to schedule a consultation with an Inglewood, California estate planning attorney. |
