What is Intestate Probate

It started with a phone call last Tuesday. Mitchell’s daughter, Emily, called, frantic. Her father had passed unexpectedly, a heart attack while gardening. He’d been meaning to update his will, she explained, but kept putting it off. He had a will, drafted years ago, but Emily couldn’t find the signed codicil that disinherited his ex-wife. Without it, the ex-wife stood to inherit a significant portion of his estate – a mistake that would cost Emily’s children tens of thousands of dollars. That’s a common nightmare scenario, and unfortunately, it leads directly to intestate probate.

As an estate planning attorney and CPA with over 35 years of experience here in Temecula, I often see the fallout from procrastination or a misplaced document. Intestate probate is what happens when someone dies without a valid will – or, as in Emily’s case, without a legally enforceable one. It’s a court-supervised process designed to distribute assets according to California’s pre-determined rules of intestate succession. Those rules may not align with what the deceased would have wanted, which is why estate planning is so vital.

What happens when someone dies without a will in California?

When a person dies intestate in California, the court appoints an administrator – usually a close family member – to manage the estate. This administrator has a fiduciary duty to act in the best interests of the estate and its heirs. The process, frankly, is more complex and time-consuming than probate with a will. The administrator must identify and inventory all assets, pay debts and taxes, and ultimately distribute the remaining property according to the statutory order of inheritance.

What is the order of inheritance in California?

California law dictates a specific order of inheritance. If there’s a surviving spouse, they typically receive the first $184,500 of community property plus half of the separate property. Any remaining assets are then divided between the surviving spouse and the deceased’s children. If there’s no surviving spouse, the children inherit everything. If there are no children, the estate goes to parents, siblings, and so on, following a defined hierarchy. It’s a rigid system, and it doesn’t allow for the nuances of family relationships or charitable intentions.

How long does intestate probate take in California?

Typically, intestate probate can take anywhere from six months to a year, or even longer if there are complications like disputes between heirs or creditor claims. This is because the court must oversee every step of the process, from petitioning for administration to filing accountings and obtaining court orders for sale of assets. The timeline is significantly longer than a well-planned and executed will-based probate.

Can I avoid intestate probate?

Absolutely. The simplest way to avoid intestate probate is to create a valid estate plan, including a will and, depending on the size and complexity of your estate, a trust. A trust allows your assets to bypass probate entirely, providing a smoother and more efficient transfer to your beneficiaries. We often utilize revocable living trusts for this purpose.

What if the estate is small?

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. However, this “small estate” process has limitations and may not be suitable for all situations.

What if I have a vacation home in California but live elsewhere?

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. It adds another layer of complexity and expense.

What if assets were supposed to be in a trust but are still in my name?

Technically not a ‘probate’ type, but a remedy. 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 a common situation and a valuable tool we use frequently.

As a CPA as well as an attorney, I can also help with the tax implications of intestate probate. Specifically, understanding the step-up in basis for inherited assets is crucial to minimizing capital gains taxes. Properly valuing assets is also vital. Too often, I see estates pay unnecessary taxes due to inaccurate valuations or a lack of understanding of the tax rules.

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.

Ultimately, the difference between a routine distribution and a protracted legal battle often comes down to preparation. By anticipating the demands of the Probate Code and addressing potential friction points with beneficiaries and creditors upfront, fiduciaries can navigate the system with greater confidence and lower liability.

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.