No Trust, No Will, In California Who Inherits Tip Sheet by Mark W….

Searching for the Will

Intestacy laws identify who will inherit if there is no trust or will.

This Tip Sheet by Mark W. Bidwell explains who inherits if the decedent has no will or trust. Without a will or trust the intestacy laws of California intervene. Intestacy law identifies who are the next of kin to inherit. Most often heirs are identified in probate court.

The surviving spouse is the default next of kin. If there is no surviving spouse, the children of the deceased inherit. If there is no spouse or children, parents inherit and if no parents survive, brothers and sisters inherit. But this fairly straight forward order is complicated by California’s community property laws or the death of a person who is in a class of heirs, such as a child.

The closet surviving next of kin creates a class of heirs. For example, the deceased has three children, two living and one deceased. Because there are living children, identification of heirs stops at the “class of children.” The children are the heirs. But the deceased child’s own children, (grandchildren of the deceased) become heirs to that share their parent would have taken if living.

The other complication is the distinction between community property and separate property. California is a community property state. Community property is property acquired during the marriage. Each spouse owns one-half. The default is on death of one spouse, the other inherits and becomes the sole owner.

Separate property complicates inheritance. Separate property is acquired either prior to the marriage, by inheritance or by gift. Separate property owned by a deceased spouse does not by default go only to the surviving spouse. The deceased ‘s children inherit a portion of separate property. For separate property, both the surviving spouse and the children are heirs.

If the deceased has no will or trust, the intestacy laws of California intervene. The laws of intestacy identify who are the next of kin to inherit. The surviving spouse is the heir to community property. The surviving spouse and children are heirs to separate property.

This press release was authored by Mark W. Bidwell, an attorney licensed in the state of California. Address is 4952 Warner, Suite 235, Huntington Beach, CA 92649. Phone is 714-846-2888. Email is

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