What Happens When a Family Member Dies Without A Will?

Updated on July 8, 2021

California Intestate Succession Laws

When a person dies without a will, that person is called an “intestate” and is said to have “died intestate.” In those situations, the decedent’s family members may have a legal right to claim an interest in the decedent’s estate, depending on their relationship to the decedent in relation to other potential claimants. This type of acquisition of title to property of an intestate is called “succession” and is determined by statute through probate court. In these types of situations, unless the size of estate is small enough, one of the heirs will need to file a probate action so that the court can properly decide who should inherit.

Although there is a common definition of heir, in probate, the term heir is a technical term that describes those who are designated by the statutes of succession to succeed the property of one how dies without disposing of it by will. It is important to note that different states may have different rules of succession.

If the Decedent was Married or Unmarried

Like family relationships, the statutory rules of succession are complex, with many exceptions and nuances that must be determined on a case by case basis. However, generally speaking, heirs who are in the member of a class with the closest degree of consanguinity, i.e.those with the closest blood relation (excepting spouses), are likely to inherit first. For example, if your parent died without a will and you are the only surviving child, there is a good chance you would have a claim to any property he or she left behind. Based thereon, here are some circumstances that could affect succession:

1. Did the decedent have a spouse or surviving domestic partner?
2. If the decedent is married, is the property within their estate considered property community property or separate property?
3. Did the decedent have any children?
4. If so, how many children did the decedent have?
5. Did the decedent have any surviving parents or siblings?

Other external circumstances such as whether the decedent died with debt will also affect someone’s ability to inherit.

In Schorr Law, Our Probate Litigation Lawyer Los Angeles has experience with probate matters relating to intestate succession. To see if you qualify for a free 30-minute consultation, contact our real estate attorneys in Los Angeles by phone at (310) 954-1877 or by email at [email protected].

See related: When Probate is Necessary and Not Necessary?