Writing a will is an important first step when planning an estate. However, some people choose not to create a will because they possess relatively few assets or simply never get around to it. When an individual with inheritable assets passes away without naming any heirs—no matter the reason—they are said to have died intestate, or without a will.

In the U.S., the fulfillment of wills and payment of inheritance taxes is usually overseen by probate courts. That’s the case in California, too, whether an individual penned a carefully crafted will or did no estate planning. 

Intestate Wills Are the Domain of California Probate Courts

While an individual who takes the right steps might spare their heirs the pains of probate by establishing a trust, the possessions of people who have died intestate are under the jurisdiction of a California court.

Many people mistakenly believe that the properties of an estate without a will can be seized and sold off by the government. However, this isn’t true. The deceased’s assets will most likely be divided by a judge, with preference given to a surviving spouse, children, or parents. Possessions of decedents without close living relatives may be allocated to siblings, cousins, uncles, aunts and nieces.

Ultimately, asset distribution depends on the decedent’s family tree and other factors that will be considered in probate court according to California state law. In other words, you don’t decide which family members get your assets if you didn’t write a will or establish a trust.

Legal Safeguards for Intestate Wills

It’s important to note that intestate wills may still have some level of protection. Even if the decedent didn’t write a will, some of their assets may be protected from intestate proceedings, including:

  • Property, funds, or other items that were transferred to a living trust before death
  • Vehicles, bank accounts, and assets frozen under transfer-upon-death agreements
  • Property that was held in joint tenancy with another owner(s)
  • Payable life insurance benefits
  • Unused funds from a retirement account, pension, or 401(k)

Community and Separate Properties

If assets aren’t protected by a trust or other upon-death agreements, California has a special method for deciding who gets what. Among the first steps a judge will take is determining whether assets are community property or separate property.

In California—and in many other states, too—many of the assets a person accumulates in life are legally shared with their spouse. Funds, properties, cars, and toys gathered and purchased in the course of one’s marriage can be considered jointly-owned between a decedent and their spouse, unless the decedent made other, prior arrangements. Such commonly held properties are community properties.

However, not every property is communal. A decedent’s assets will be considered separate property if:

  • It was obtained through inheritance
  • It was obtained through a prior divorce

In general, the community share of intestate assets will be handed over to a surviving spouse. Separate properties, on the other hand, will be divided among the surviving spouse and any children, siblings, or parents the decedent may have left behind.

Dividing Properties in Probate Can Be Traumatic

Probate proceedings can get messy and bring out the worst in family members. For large, complex, or especially valuable estates, it’s not uncommon for distant relatives or improbable parties to try staking a claim, and worthy inheritors may receive less than their fair share, while distant relatives the deceased may not have even considered in a will become legally viable heirs.

The easiest way to avoid the drama and trauma of probate is to ensure that your estate is professionally planned. Writing is a will is only one of many ways to preserve your peace of mind. Many people also opt to establish trusts, which facilitate the transfer of assets in a private, family-friendly manner. They also allow individuals to set specific conditions on who receives specific assets and how financial assets can be used.

Do You Need To Speak With An Attorney About Estate Planning?

If you need to speak with an experienced estate planning lawyer please contact us online or call us directly at 800.756.5596 to first register for one of our free, informative seminars. Your attendance will qualify you for a special discount for our estate planning services should you decide to make a free appointment at the conclusion of the seminar and choose to proceed with us. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.


Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.