When a parent dies without a will in California, their property does not automatically go to the state or immediately pass to their children. California intestate succession laws determine who has inheritance rights to probate assets. If probate is required, the probate court can appoint an administrator to manage the estate, pay valid debts and expenses, and distribute the remaining property to the legal heirs.
For Orange County families, this can become particularly important when a parent owned a home, left substantial financial assets, had outstanding debts, or had children from more than one relationship.
Dying without a valid will is known as dying “intestate.” Understanding What Is Probate? and how California intestate succession works can help you determine what needs to happen next.
Table of Contents
- How Does California Intestate Succession Work When a Parent Dies Without a Will?
- Does Everything Automatically Go to the Children?
- What Is the Difference Between Community Property and Separate Property?
- Who Handles the Estate If There Is No Will?
- What Does the Probate Process Involve in California?
- Does an Estate Have to Go Through Probate in California Without a Will?
- Can a Small Estate Avoid the Full Probate Process?
- What Happens to a Parent’s House After They Die?
- Can You Sell a Parent’s House During Probate?
- What Happens to Bank Accounts When a Parent Dies Without a Will?
- What Happens to a Parent’s Debts?
- How Long Does Probate in California Take?
- How Much Does Probate Cost?
- What Should You Do First After a Parent Dies Without a Will?
- When Should You Contact an Orange County Probate Attorney?
- How Can an Estate Plan Help Your Family Avoid Probate?
- Frequently Asked Questions
How Does California Intestate Succession Work When a Parent Dies Without a Will?
Intestate succession is the legal system California uses to determine who can inherit property when someone dies without a valid will.
The California Probate Code establishes a specific order of inheritance based largely on family relationships. The rules do not necessarily distribute property according to what the deceased person may have wanted or what family members believe would be fair.
When a person dies intestate, important questions include:
- Was the parent married or in a registered domestic partnership?
- Did the parent have children?
- Was property community property or separate property?
- Were there children from a prior relationship?
- Did any children die before the parent and leave descendants?
- Were assets held in a trust?
- Did accounts have designated beneficiaries?
- Was property held in joint tenancy or another form of ownership with survivorship rights?
Under California Probate Code § 6401, a surviving spouse’s intestate share depends partly on whether property is community property or separate property. California’s intestate succession rules also establish the order in which other relatives inherit the portion of an intestate estate that does not pass to a surviving spouse.
Our related article, What Happens If I Die Without a Will in California?, provides a broader explanation of California inheritance law and intestate succession.
Does Everything Automatically Go to the Children?
No. A child does not necessarily inherit everything simply because a parent dies without a will.
The answer depends heavily on whether there is a surviving spouse or domestic partner and whether the parent’s assets are considered community property or separate property.
California is a community property state. In general, property acquired during a marriage can be community property, although exceptions and other ownership arrangements may apply. Separate property can include property owned before marriage and certain assets received individually, such as gifts or inheritances.
Under California’s intestate succession law, the surviving spouse’s inheritance can therefore be very different depending on the type of property involved.
For example, when there is a spouse and one child, California Probate Code § 6401 generally gives the surviving spouse the deceased spouse’s one-half interest in community property and one-half of the deceased person’s separate property. The child generally inherits the remaining one-half of the separate property. Different rules apply when there are multiple children or no surviving children.
Family dynamics can make intestacy considerably more complicated when there are:
- Children from previous marriages or relationships
- Stepchildren
- A surviving spouse or registered domestic partner
- A child who died before the parent
- Grandchildren
- Unmarried partners
- Questions about property ownership
- Distant relatives
- Disagreements among potential heirs
This is why family members should not assume they can simply decide among themselves how the estate is distributed.
What Is the Difference Between Community Property and Separate Property?
Understanding community property and separate property can be essential when determining inheritance under California intestate succession.
Community property generally refers to property acquired by married couples or registered domestic partners during the relationship when California community property rules apply. Each spouse generally owns an interest in the community property.
Separate property may include assets a person owned before marriage, as well as certain property acquired individually during marriage, such as an inheritance or gift.
When someone passes away without a will, the distinction matters because the surviving spouse’s share of community property can be different from the spouse’s share of separate property.
The characterization of real estate, investment accounts, businesses, and other valuable assets is not always obvious. Deeds, account records, agreements, the source of funds used to acquire property, and other facts may need to be reviewed before inheritance rights can be determined.
Who Handles the Estate If There Is No Will?
If there is a will, it may nominate an executor. When a parent dies without a will, there is no nominated executor.
Instead, the probate court can appoint an administrator. An executor or administrator serving an estate is generally known as the personal representative.
California Probate Code § 8461 establishes an order of priority for appointment. A surviving spouse or domestic partner has priority, followed by children, grandchildren, other descendants, parents, siblings, and other relatives in the statutory order.
Once appointed, the administrator may be responsible for:
- Locating and protecting estate property
- Identifying bank and investment accounts
- Preparing an inventory of assets
- Obtaining required appraisals
- Notifying creditors
- Reviewing and paying valid claims
- Maintaining real estate
- Addressing tax matters
- Selling property when appropriate
- Distributing property to heirs
- Completing the probate process
Being the oldest child does not automatically give someone legal authority to access accounts or sell estate property.
What Does the Probate Process Involve in California?
The probate process generally begins when an appropriate person files a petition with the probate court asking to be appointed to administer the estate.
If the court approves the appointment, the administrator may receive Letters of Administration. These documents provide evidence that the personal representative has legal authority to act on behalf of the estate. Banks, financial institutions, title companies, and other organizations may require this evidence before allowing someone to access or manage property owned solely by the deceased person.
The estate administration process can include:
- Filing the probate petition
- Providing legally required notices
- Appointment of the personal representative
- Identifying and valuing estate property
- Addressing creditor claims
- Paying valid estate expenses and obligations
- Managing or selling assets
- Determining the legal heirs
- Requesting authority to distribute the estate
- Distributing property and closing the estate
For Orange County residents, probate matters are generally handled through the Superior Court of California, County of Orange.
Families who need assistance with this process can speak with an Orange County probate attorney about the specific estate.
Does an Estate Have to Go Through Probate in California Without a Will?
No. Someone can die without a will in California and still own assets that transfer without going through formal probate.
Whether property must go through probate depends more on ownership and transfer arrangements than simply on whether a will exists.
Property that may transfer outside formal probate can include:
- Assets in a properly funded living trust
- Life insurance with a beneficiary
- Retirement accounts with designated beneficiaries
- Certain payable on death accounts
- Certain transfer on death arrangements
- Property held in joint tenancy with survivorship rights
- Other property that transfers by operation of law
If your parent had a living trust, the family may need trust administration attorneys in Orange County instead of, or sometimes in addition to, probate representation.
Can a Small Estate Avoid the Full Probate Process?
California law allows simplified procedures for certain qualifying estates.
For deaths on or after April 1, 2025, the limit for certain small estate personal property procedures is $208,850. California also has a procedure that may allow a qualifying decedent’s primary California residence valued at up to $750,000 to be transferred without going through the full probate process.
The $750,000 provision does not mean that every California home worth less than $750,000 automatically avoids probate. It applies to a qualifying primary residence and has specific procedural requirements.
The California Courts Self-Help Guide provides additional information about current small estate limits and simplified property transfer procedures.
This distinction may be particularly important for Orange County families because real estate is frequently one of the largest assets in a parent’s estate.
What Happens to a Parent’s House After They Die?
A parent’s home is often the most significant issue in a California estate.
Before deciding what happens to the property, the family should determine how the home was titled at the time of death.
A house might have been:
- Owned solely by the parent
- Held in a living trust
- Owned as community property
- Held in joint tenancy
- Subject to another survivorship or transfer arrangement
If the home was properly funded into a living trust, it may transfer through trust administration rather than probate. If property was held in joint tenancy with survivorship rights, the surviving owner may be able to receive the property without formal probate.
If the property does belong to the probate estate, the personal representative may need to handle:
- Mortgage payments
- Property taxes
- Insurance
- Utilities
- Maintenance and repairs
- Security
- Personal property inside the home
- Appraisal requirements
- A potential sale
Children should not assume they automatically own the house immediately after a parent’s death.
Can You Sell a Parent’s House During Probate?
A parent’s home can often be sold during the probate process, but the person arranging the sale must have legal authority to act for the estate.
The personal representative may be able to list and sell the property depending on the authority granted by the probate court and the procedures applicable to that particular estate.
Before signing listing agreements, accepting an offer, distributing proceeds, or making substantial changes to the property, the family should determine who has authority to act.
This is particularly important when several siblings or other heirs expect to inherit an interest in the property.
What Happens to Bank Accounts When a Parent Dies Without a Will?
What happens to a bank account depends on how the account was structured.
A joint account may have survivorship rights. An account may also have a payable on death beneficiary. Those property transfers may be handled differently from a bank account owned solely by the deceased parent without a beneficiary.
A child or heir generally should not assume that being named in an estate plan or being the closest relative automatically gives them access to a parent’s individual bank account.
If the account was held solely in the deceased parent’s name, a financial institution may require proof that a personal representative has been legally appointed or that another authorized transfer procedure applies.
What Happens to a Parent’s Debts?
Inheritance generally occurs after valid estate obligations have been addressed.
Potential obligations can include:
- Mortgages
- Credit card balances
- Medical bills
- Taxes
- Funeral and burial expenses
- Property expenses
- Probate administration expenses
- Other valid creditor claims
The administrator must determine which claims should be paid from the estate before the remaining property is distributed to heirs.
Children should therefore avoid dividing bank accounts, investments, vehicles, or other estate property before determining what expenses and claims must first be addressed.
How Long Does Probate in California Take?
There is no single timeline for probate in California.
The length of the process depends on issues such as:
- The number and type of assets
- Real estate transactions
- Creditor claims
- Tax matters
- Disputes between heirs
- Questions about inheritance
- Difficulty locating property
- Court scheduling
- Contested proceedings
An uncomplicated probate can proceed much differently from an estate involving substantial Orange County real estate, complicated family relationships, disputed ownership, or litigation.
How Much Does Probate Cost?
Probate expenses vary according to the size and complexity of the California estate.
Costs may include:
- Attorney fees
- Personal representative compensation
- Court filing fees
- Probate referee fees
- Publication expenses
- Bond premiums
- Accounting or tax preparation
- Real estate expenses
- Additional legal fees for extraordinary work
For a more detailed explanation of California probate costs and statutory fee calculations, see How Much Does Probate Cost in California?.
What Should You Do First After a Parent Dies Without a Will?
You do not have to solve every estate issue immediately after a parent dies. A few early steps can help determine what process will be required.
- Look for a will, trust, and other estate planning documents.
- Obtain certified copies of the death certificate.
- Identify bank accounts, investments, retirement accounts, and life insurance.
- Identify real estate and determine how it is titled.
- Check for designated beneficiaries.
- Protect the parent’s home and valuable property.
- Identify bills and immediate financial obligations.
- Avoid distributing substantial assets prematurely.
- Determine whether a simplified procedure is available.
- Determine whether formal probate is necessary.
A death without a will does not necessarily mean the parent had no estate plan. They may have had a trust, beneficiary designations, jointly owned assets, or other arrangements that control how property transfers.
When Should You Contact an Orange County Probate Attorney?
Legal guidance can be especially helpful when:
- A parent owned Orange County real estate
- The parent died without a valid will
- No one knows who has authority to act
- There is a surviving spouse and children
- Children are from multiple relationships
- Separate property and community property are difficult to distinguish
- Heirs disagree about inheritance
- Significant creditor claims exist
- Property must be sold
- The family is unsure whether the estate must go through probate
- The estate may qualify for a simplified procedure
Afati & Page, LLP helps families throughout Orange County understand California probate, intestate succession, estate settlement, and the responsibilities that arise after the death of a family member.
The firm’s probate attorneys in Orange County can evaluate how property was owned, help determine whether probate is required, explain who has priority to serve as administrator, and guide the family through the next steps.
How Can an Estate Plan Help Your Family Avoid Probate?
When someone passes away without a plan, California law determines inheritance for property subject to intestate succession. Those intestate succession rules may produce a result that is very different from what the person actually wanted.
A properly designed estate plan can provide instructions for who should receive property and who should manage important responsibilities. For many California homeowners, a properly funded living trust can also help significant assets avoid probate.
Our guide, How Do You Avoid Probate in California?, explains several strategies families can consider.
Working with experienced estate planning lawyers in Orange County can help individuals create estate planning documents tailored to their assets, family relationships, and goals.
If your parent recently died without a will and you are unsure what to do next, contact Afati & Page, LLP to discuss your situation.
This article is provided for general informational purposes only and is not legal advice. California probate, inheritance, and intestate succession laws can change, and the appropriate procedure depends on the facts of each estate.
Frequently Asked Questions
What happens if someone dies without a will in California?
Who inherits when a parent dies without a will?
Does a spouse inherit everything if there is no will in California?
What happens if someone dies without a will or trust?
Does dying without a will automatically mean probate?
Who becomes executor when there is no will?
Can I access my parent’s bank account after death?
Can I sell my parent’s house if there is no will?
Can children inherit a house without going through probate?
When should I contact a probate attorney?
This article is provided for general informational purposes and is not legal advice. Probate and estate planning laws can change, and the appropriate strategy depends on the circumstances of each individual and estate.
