What Happens in an Intestate Estate

I recently spoke with Emily, a woman devastated not only by the loss of her husband, but also by the fact that his hastily scribbled codicil – intending to leave a small sum to their granddaughter – wasn’t properly witnessed. That single oversight meant the codicil was invalid, and his estate fell into intestacy. The result? A protracted legal battle with his estranged brother, costing Emily tens of thousands of dollars in legal fees and immeasurable emotional distress. It’s a scenario I’ve seen far too many times in my 35+ years practicing as an Estate Planning Attorney and CPA in Temecula.

What Does “Intestate” Even Mean?

Intestacy simply means dying without a valid will. California law then dictates how your assets are distributed, and it’s rarely what people think will happen. Many assume their spouse automatically gets everything, but that’s not always true, especially if there are children from a previous relationship. It’s a common misconception that can lead to significant heartache and unintended consequences.

How Does California Distribute Assets in an Intestate Estate?

The distribution scheme is surprisingly rigid. It prioritizes surviving spouses and children, but the percentages vary depending on whether you have one or more children, and whether your spouse has other children. Generally, the first $180,000 of assets, plus half the remaining property, goes to the surviving spouse. The other half is divided equally among your children. If there is no surviving spouse, your children inherit everything. If you have no spouse or children, the estate goes to other relatives – parents, siblings, and so on – in a specific order defined by law.

What If I Have a Small Estate?

For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets. This streamlined process is significantly cheaper and faster, but it only applies if the estate qualifies as “small.” However, even with a small estate, proper documentation is crucial to avoid delays and disputes.

What About Real Estate? Can That Be Avoided?

If the estate is too big for an affidavit but the only asset is a primary residence worth less than $750,000, you can file a ‘Petition for Succession to Real Property’ (Probate Code § 13151). This requires a court order but avoids the full formal probate process. This is a popular option for homeowners with limited assets, but it still involves court filings and potential delays.

What if I’m a Surviving Spouse – Is Everything Automatically Mine?

Not necessarily. While the law favors surviving spouses, the distribution rules can be complex. The Spousal Property Petition (Probate Code § 13650) is the most efficient type of probate. It allows for the transfer of unlimited assets to a surviving spouse without the 4-month creditor period or full administration. It typically takes only one hearing. However, if there are children from a previous marriage, the surviving spouse may only receive a portion of the estate.

What Happens if I Die While Traveling or Own Property in Another State?

If a non-resident of California leaves property here (and it exceeds the small estate limits), you must open an ‘Ancillary Administration.’ This is a secondary probate that often runs parallel to the main probate in the decedent’s home state. This adds complexity and expense, particularly if assets are located in multiple states. Careful planning – such as using a trust – can avoid this situation entirely.

Can a Trust Avoid Intestacy?

Absolutely. A properly funded trust completely bypasses probate, including intestacy. If an asset was meant for the trust but listed in the decedent’s name, a Section 850 Petition can confirm it as trust property, allowing you to bypass the full probate administration entirely. This is why I consistently advise clients to focus on trust funding – the trust document itself is only half the battle.

What If There’s an Emergency?

If you cannot wait 6 weeks for a hearing (e.g., to manage a business or sell rotting crops), you can petition for ‘Special Letters.’ These grant temporary powers immediately, but they expire once the General Administrator is appointed. These can be a vital tool for preserving assets and preventing further loss during the initial stages of administration.

As a CPA as well as an attorney, I understand the tax implications of intestacy are often overlooked. Without a will, opportunities for step-up in basis and careful capital gains planning are lost. The lack of a clear estate plan can result in significantly higher tax liabilities for your heirs. Don’t let a simple oversight jeopardize your family’s financial future.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.