A California probate proceeds, even if the decedent failed to leave a will. The court determines the beneficiaries of the decedent’s estate. In fact, the court bases this upon the laws of intestate succession. California Probate Code §§ 6400 – 6414 lays out Intestate succession laws. Remember that assets with “pay-on-death beneficiaries” or assets in a trust, should not be subject to probate court action. Those assets pass to the named heirs on the accounts or to the named beneficiaries in the trust.
The following basic rules determine the decedent’s heirs in a probate action, in the absence of a will.
- With married decedents with a domestic partner, ask this: Did they have children? In such a case, all assets pass to the surviving spouse or domestic partner.
- Unmarried decedents without a domestic partner, with one child, pass assets to the decedent’s child.
- Unmarried decedents, without a domestic partner, but with more than one child, share assets equally among the children. If one of the children predeceases the decedent, that child’s child or children share equally in the child’s share.
- In some cases, the decedent is survived by a surviving spouse or domestic partner. With children, their community property goes to the surviving spouse or domestic partner.
- Sometimes, the decedent is survived by a surviving spouse or domestic partner. When they have one child, the decedent’s separate property splits between the surviving spouse or domestic partner and the only child.
- In certain cases, the decedent survived by a surviving spouse or domestic partner and has more than one child. Thus, the surviving spouse or domestic partner receives one-third of the assets. And the children share equally in the remaining two-thirds of the assets.
- When the decedent is not survived by a surviving spouse or domestic partner and has no children, this occurs. The decedent’s assets go to the decedent’s heirs-at-law. This applies to the closest relationship or consanguinity. For instance, the decedent’s parents would take first. Next, brothers and sisters. Then nieces and nephews. And then grand nieces and nephews and then great grand nieces and nephews.
- When no spouse or domestic partner exists, and the court finds no children or other heirs, tthe decedent’s assets escheat to the state of California.
Intestate Succession for Heirs
If you need to start a probate proceeding, you not like the way the court determines intestate succession. In such a case, you cannot contest the court’s determination. Thus, to inherit property from a decedent who died intestate, the prospective heir must survive the decedent for at least 120 hours. If they do not meet the 120-hour survival period, the heir is considered to have “predeceased” the decedent and will not be considered as an heir. (CA Probate Code §6403.)