Every day in every state, people die without a valid will. Some have never gotten around to creating one. Others have a will that is no longer valid due to a divorce, a beneficiary predeceasing them, or a failure to meet execution formalities. When this happens, the distribution of the estate is determined entirely by the state’s intestate succession laws, which follow a fixed formula that may have no relationship to what the deceased person actually wanted. Navigating the intestate probate process requires both knowledge of the applicable succession laws and procedural expertise in the probate court system. An experienced Probate Attorney is the essential guide through this process.
How Intestate Succession Works
California’s intestate succession law, like that of other states, establishes a hierarchy of heirs who receive the estate in the absence of a valid will. For a married person with children, the distribution depends on whether the assets are community property or separate property. Community property passes entirely to the surviving spouse. Separate property is divided between the surviving spouse and the children in proportions that depend on how many children survive. For an unmarried person, the estate passes to children, then to parents, then to siblings, then to more distant relatives in a specified order.
This formula produces results that often do not match what the deceased person would have wanted: an estranged child who is entitled to an equal share with a beloved child; a devoted domestic partner who receives nothing because the couple was not married; a stepchild who receives nothing because they were never legally adopted.
The Probate Process Without a Will
When there is no will, there is also no named executor. The court must appoint an administrator to manage the estate, following a priority order that gives preference to the surviving spouse, then to adult children, then to more distant relatives. If multiple family members are entitled to appointment and cannot agree, the court must hold a hearing to determine who will serve. This can itself become contentious and expensive.
An Probate Attorney who represents a family member seeking appointment as administrator will navigate the petition process, respond to any competing petitions, and work to ensure that a qualified and trustworthy person is appointed to manage the estate through the often-lengthy intestate probate proceeding.
The Surprise of Intestate Distribution
I know a family that experienced a difficult situation when the family patriarch died without a will after a late-life second marriage. Under California’s intestate succession law, his surviving second wife was entitled to one-third of his separate property, while his three adult children from his first marriage shared the remaining two-thirds. The second wife and the adult children had a strained relationship, and the forced co-ownership of the family home and other assets created conflict that required extended litigation to resolve.
Had the patriarch worked with a Probate Attorney before his death to create a simple will or trust, he could have specified exactly who would receive each asset and in what amount, preventing the conflict entirely. The legal fees and family damage that resulted from the intestate succession cost far more, in every sense, than the estate planning that was never done.
Heirship Proceedings and Establishing Who the Heirs Are
In intestate estates, particularly those involving complex family structures such as children from multiple relationships, disputed paternity, or estranged relatives who have not maintained contact with the family, establishing who the legal heirs are can itself require a legal proceeding. Texas, for example, has a formal heirship proceeding that establishes the identity of the deceased person’s heirs when there is no will. These proceedings require specific evidence and procedural steps that an experienced probate attorney will manage.
The Lesson Every Family Should Take
Every person who reads about the complications, expense, and family conflict that intestate succession can create should be motivated to consult an Probate Attorney about creating a comprehensive estate plan. The process is not complicated or time-consuming for most people, and the peace of mind it creates is substantial. The alternative, leaving your family to navigate the courts, the formulaic distribution rules, and the potential conflicts of intestate succession, is a burden that proper planning entirely eliminates.
