Inheritance after probate in California being given to an heir.

What you need to know about California inheritance law

Dealing with end-of-life administrative processes can be a stressful and emotional time. After the death of a loved one, it can sometimes be unclear as to how the assets of the deceased will be distributed.

And the process is only made more confusing due to the fact that each state has different laws with regards to asset distribution.

California has its own set of unique laws which you should be familiar with if you live in the state or are involved with a property-owner in the state. Here, we’ll break down the California Inheritance Law to help you get a better understanding of how it works.   


How California inheritance works

In California, the inheritance of assets after the death of the owner will depend on 2 factors:


1) Community Property

CA is a community property state, which means that all assets and income accumulated during a marriage (or domestic partnership) is considered community property unless otherwise specified by both spouses/partners as separate property. In other words, both spouses are treated as if they own the property equally, even if the asset is the name of one spouse only.

When property is deemed community property, the surviving spouse is the sole heir for 100% of the deceased’s assets, regardless of any legal arrangements (contracts, wills, prior transfers) an individual made.

CA has essentially deemed all community property as jointly held assets, regardless of whether they are if held in single name. This means that they cannot transfer to anyone else without the express consent of the spouse.  

Read more about community property.


2) Probate Assets

Probate is the process of legally transferring the assets of a deceased individual to the rightful heirs. Only assets listed under a deceased person’s individual name that do not automatically transfer to someone else will go through probate.  

Because community property does get transferred by statute, it is not considered a probate asset.  

See: What assets pass through probate


Two Types of Probate


1) Testamentary

Probate is deemed “testamentary” when the deceased had a valid will admitted (proved) into court. In this case, the will governs who inherits from the estate, and the deceased has the right to choose  who inherits or is dis-inherits the estate.

See: Can someone challenge a will?


2) Intestate

When an individual dies without a will, it is called “intestate,” which means that state law determines who inherits assets.

Here is an outline of the the California Intestate Succession (inheritance) Law per some of the most common scenarios (deceased and decedent refers to the person who died):

  • Surviving Spouse: Inherits 100% of all community property always.
    • Spouse and one child (of deceased): 1/2 of Separate Property, child other 1/2
    • Spouse and two or more children (of deceased): 1/3 of Separate Property, children share 2/3
    • Spouse, no children and surviving parents (of deceased): 1/2 of Separate Property, parents other 1/2
    • Spouse, no parents and surviving siblings (of deceased): 1/2 of Separate Property, siblings other 1/2
    • Only Spouse (no children, parents, siblings, grandparents): 100% of Separate Property
  • Children: Inherit 100% of all property if no spouse
    • Spouse and one child (of deceased): 1/2 of Separate Property
    • Spouse and two or more children (of deceased): 2/3 of Separate Property. Children share equally of the 2/3 share.
  • Parents: Inherit 100% if no spouse and no children
  • Siblings: Inherit 100% if no spouse, no children and no parents.
  • Predeceased Persons: If any family member that would have an inheritance predeceased (died before) decedent and they had children, those children inherit predeceased person’s share.
    • Ex: Mom dies and had 3 children, one Son passed previously with children of his own. His children (grandchildren to “mom”) inherit the deceased Son’s share.
  • Predeceased Spouse: If a spouse predeceased and had children not born to the decedent, and the spouse was not deceased by more than 15 years, the children of the predeceased spouse inherit 1/2 of the estate.


Do you need help with probate?

Asset transfers of the deceased can be a challenging and emotional process. If you have questions about California Inheritance Law, or you would like more information about probate, please contact us and we’ll be happy to guide you through the process.