Estates Home
Estate Planning 101
Statutory Forms
Post Mortem and Probate
Nonprofit Research
Research Links
Intestacy Chart

What if I do not make a will?

Each state has its own laws (laws of intestate succession) governing the distribution of a decedent's property should the person fail to make a will.  The law of the state in which the decedent lived at the time of his death typically governs (but even this isn't always the case, especially with out-of-state real property).  These laws can change. 

If you want to be certain that your wishes are implemented, then MAKE A WILL (if only a statutory form will like the one available here).

The following chart summarizes the California laws of intestacy (found in Probate Code Sections 6400 and following).  For a clever "intestate will,"  take a look at  John B. Palley's website.

If the Decedent had a Surviving Spouse, then:

Ownership of Property:


Community and "Quasi-community" Property:
bulletAll of to spouse
Decedent's Separate Property:
bulletAll to spouse if there is no surviving children, parent, brother, sister, or children of deceased brother or sister
One-half to spouse if:
bulletDeceased left one child or issue of one deceased child; or
bulletDecedent leaves no child but does leave a parent or parents or their children (decedent's brothers or sisters) or their children
One-third to spouse if:
bulletDecedent leaves more than one child; or
bulletDecedent leaves one child and the issue of one or more deceased children; or
bulletDecedent leaves issue of two or more deceased children.

Property not passing to the Decedent's Surviving Spouse (if any) goes to....


Disposition (in order of preference):

If children, then: All to issue of decedent equally if of same degree of kinship
If no children, then:
  1. To decedent's parents equally;
  2. To the issue of parents or either of them, equally if all of the same degree of kinship;
  3. To decedent's grandparents equally, or, if deceased, to their issue equally if all the same degree of kinship;
  4. To the issue of a predeceased spouse, equally if all the same degree of kinship;
  5. To the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote;
  6. To the parents of a predeceased spouse equally, or if none, to the issue of such parents equally if all the same degree of kinship.
Please Note: Persons of the same generation or equal degree of kinship divide the property into equal shares. Those who claim through a deceased heir ("by right of representation"), share equally the amount which would have passed to the deceased heir.