What Happens Without an Estate Plan? The California Intestate Process Explained

When you die without an estate plan in California, state "intestate succession" laws determine who inherits your assets, a court appoints someone to manage your estate, and your family has no control over the process. For parents, a judge decides who raises your children. The entire process costs thousands of dollars and takes 12-18 months or longer.

What "Intestate" Means

"Intestate" simply means dying without a valid will or trust. California has default rules—intestate succession laws—that apply when someone dies without estate planning documents.

These rules were written by the legislature, not by you. They reflect generic assumptions about what "most people" would want, but they rarely match what individual families actually prefer.

Who Inherits Under California Intestate Law

California's intestate succession follows a specific hierarchy:

If You're Married

Community property (assets acquired during marriage):

• Your spouse inherits 100% of your share

Separate property (assets you owned before marriage or received as gifts/inheritance):

• If you have one child: Spouse gets 1/2, child gets 1/2
• If you have two or more children: Spouse gets 1/3, children split 2/3
• If you have no children but parents surviving: Spouse gets 1/2, parents get 1/2
• If you have no children and no parents: Spouse gets 1/2, siblings split 1/2

If You're Not Married

• Children inherit everything (equally divided)
• If no children: Parents inherit everything
• If no children or parents: Siblings inherit everything
• If no siblings: More distant relatives, following a specific hierarchy
• If no identifiable heirs: California takes everything (escheat to the state)

Common Problems with Intestate Distribution

Unmarried partners get nothing. California intestate law doesn't recognize unmarried partners, regardless of how long you've been together.

Stepchildren get nothing. Unless legally adopted, stepchildren aren't heirs under intestate law.

Children inherit at 18. Without a trust, children receive their inheritance outright at age 18—whether they're ready for it or not.

No provisions for special needs. A special needs child who inherits outright may lose government benefits.

What Happens to Minor Children

If both parents die without naming guardians, a court decides who raises your children. This process involves:

1. Relatives petition the court for guardianship
2. A court investigator evaluates potential guardians
3. A judge makes the decision based on "best interests of the child"
4. The process can take months during which children may be in temporary care

Family conflict is common. Without your guidance, relatives may disagree about who should raise your children. The court process can be contentious, expensive, and emotionally devastating for everyone involved—especially the children.

Your preferences are unknown. Maybe you have strong feelings about who should (or shouldn't) raise your kids. Without documents, the judge doesn't know.

The Probate Process for Intestate Estates

Even without a will or trust, your estate must go through probate—the court process for distributing assets after death.

Timeline

California probate typically takes 12-18 months for straightforward estates. Complex estates or those with disputes can take 2-3 years or longer.

During this time:

• Bank accounts may be frozen
• Real estate cannot be sold without court approval
• Family members cannot access assets they may need

Costs

Probate fees in California are set by statute and calculated on the gross estate value (not net equity):

| Estate Value | Attorney Fees | Executor Fees | Total |

|--------------|---------------|---------------|-------|

| $500,000 | $13,000 | $13,000 | $26,000 |

| $750,000 | $18,000 | $18,000 | $36,000 |

| $1,000,000 | $23,000 | $23,000 | $46,000 |

| $1,500,000 | $33,000 | $33,000 | $66,000 |

These are just statutory fees. Additional costs include:

• Court filing fees: $435+
• Bond premiums (if required): $500-$2,000/year
• Appraisal fees: $200-$1,000+
• Accounting fees
• Extraordinary fees for complex matters

Important: Fees are based on gross value, not net equity. A home worth $800,000 with a $600,000 mortgage generates fees based on $800,000.

The Court Appoints an Administrator

Without a will naming an executor, the court appoints an "administrator" to manage your estate. California law prioritizes:

1. Surviving spouse or domestic partner
2. Children
3. Grandchildren
4. Other close relatives

If family members disagree about who should serve, the court decides—adding cost and delay.

What Happens to Your Incapacity?

Without powers of attorney and healthcare directives, if you become incapacitated:

Financial matters require conservatorship:

• Family must petition the court
• A judge appoints a conservator to manage your affairs
• Annual accountings required
• Court oversight of every major decision
• Cost: $5,000-$15,000+ initially, plus ongoing expenses

Medical decisions require legal proceedings:

• Without a healthcare directive, doctors may not know your wishes
• Family may disagree about care decisions
• Court intervention may be required

Real-World Impact: A Case Study

Consider a common scenario:

Sarah and Mike are married with two children (ages 8 and 12). They own a home worth $900,000 with $400,000 in equity, have $200,000 in retirement accounts, and $50,000 in savings. They never created an estate plan.

Mike dies unexpectedly. What happens?

1. Sarah doesn't automatically control everything. Mike's separate property (if any) must be distributed according to intestate law.
2. The home may need to go through probate to clear title, even though Sarah was joint owner.
3. If Sarah remarries and later dies, intestate succession could give her new spouse a share of what was originally "family money," potentially disinheriting the children.
4. If both parents had died, the children would inherit at 18 with no restrictions. A court-appointed guardian (not necessarily who Sarah and Mike would have chosen) would manage their inheritance until then.
5. Probate costs would consume $20,000-$30,000 of the family's assets.

All of this could have been avoided with an estate plan costing a fraction of the probate fees.

How to Avoid This

The solution is straightforward: create an estate plan. At minimum, every adult should have:

1. A revocable living trust to avoid probate
2. A pour-over will to name guardians and catch stray assets
3. Power of attorney to avoid conservatorship
4. Healthcare directive to guide medical decisions
5. HIPAA authorization to allow family to communicate with doctors

At Bordeaux Legacy Law, we help California families create complete estate plans at flat-fee pricing, with two paths to get started: online at your own pace, or with a consultation first.