A Primer on Intestacy (Prob. Code § 10000)

Usually, a decedent has a valid legal will or estate upon their death which indicates how they want their assets distributed. Intestacy refers to someone who dies without a will. This means how their assets are distributed will be decided by the probate court.

The probate process requires the court to determine whether someone died intestate and whether any testamentary instrument, like a will, is valid. If there is no will and the person is deemed to have died intestate, property is passed down based on next of kin. The court will determine heirs and beneficiaries to pass the property down to. The court will also appoint an administrator or executor to distribute the property. 

What is Intestate Succession?

Intestate succession is the court’s determination of who should get what based on their degree of relation to the decedent. Law in California sets out who is picked to “succeed” the decedent. 

Heirs are considered to have a legal right of succession because of their affinity to the decedent, not just because they are related to the decedent.  (Dickey v. Walrond (1927) 200 Cal. 335, 339; Estate of Jones (1934) 3 Cal.App.2d 395, 397.) Heirs are different from just those who are “next of kin” or people solely related by blood. (Estate of Roberts (1948) 85 Cal.App.2d 609, 614.) 

Other forms of succession may happen if appropriate. For example, if the descendants of the decedent would take the same share of the estate that the decedent would have taken if he was still alive, that is succession by right of representation. (Lombardi v. Blois (1964) 230 Cal.App.2d 191, 198.)

Overall, the property division will begin with the first generation of descendants with any living members and then to those descendants’ relatives. (Cal. Prob. Code § 240.)

What if the Decedent had a will?

Usually, courts will avoid finding intestacy where possible, so where a will exists it will be broadly and liberally interpreted to prevent intestacy. (Estate of Stockird (2018) 30 Cal.App.5th 558, 566; Estate of Vanderhoofven (1971) 18 Cal.App.3d 940, 947). This means if a will is not entirely valid it will be read to cause only partial intestacy if possible. (In re Karkeet’s Estate (1961) 56 Cal.2d 277, 281-282.) The court will interpret the testator’s (decedent’s) intentions based on what language was used in the document. (In re Bailess’ Estate (1967) 249 Cal.App.2d 970, 975-976.)

So, where a will does not provide for the distribution of particular assets the court will usually have those assets distributed according to the laws of intestate succession as described above. (In re Deacon’s Estate (1959) 172 Cal.App.2d 319, 323.) Just because the court can determine some of the testator’s intent, they must consider evidence of the testator’s actual specific intent at the time of drafting. (Estate of Duke (2015) 61 Cal.4th 871, 879.) The court’s interpretation cannot be entirely independently determined. 

How does an Administrator or Executor Divide Property?

The court will appoint an administrator when someone dies intestate to ensure property is distributed according to the probate code. This administrator may sell probate property to pay debts, family allowances, expenses, taxes or if it is in the interest of the estate. (Cal. Prob. Code § 10000.) 

They must be given the ability to do so by the will or the court. An administrator may have limited or full authority. If the administrator is given limited authority, they must undertake the sales or exchanges of property under court supervision. (Cal. Prob. Code § 10403.) This includes listing the property, using a broker, and even determining the price. An administrator must give notice of any sale taking place to the devisees or hairs who are affected by the sale. (Cal. Prob. Code § 10580.)

These heirs may object to the sale occurring or requesting it be done under court supervision. (Cal. Prob. Code § 10589.) If no objection is made, then the sale of the property will proceed to escrow.

Sale of real property may be part of distribution. This is the final stage of the probate process where shares are divided up and delivered based on intestate succession. Individual assets must be appraised and inventoried. (Cal. Prob. Code § 8800.) beneficiaries and heirs can stake their claim at this time to portions of the property which may result in disputes. (Cal. Prob. Code § 11700.) 

What are some examples of how intestacy works?

For example, if Julie and Shawn are siblings and their mother passes away without a will, their mother died intestate. This means the probate court will determine how their mother’s assets will be distributed in accordance with California’s Probate Code.

If their mother was survived their father, it is likely her assets would go entirely to Julie and Shawn in equal parts. If their father was still alive any community property (property held during their marriage) would be split with 50% going to Julie and Shawn’s father and 50% going to Julie and Shawn. 

Once the court determined the appropriate order and amount of distribution the court would appoint an administrator to transfer this property. This could be Julie or Shawn or a third party if they so requested. 

If their mother had any remaining debts those would need to be paid off prior to distribution. All property would need to be inventoried and appraised. If the assets at issue were personal property like money, they could easily be divided. Ownership interests in real property would also be passed to the appropriate heirs. For example, if their mother left Julie and Shawn the family home it would likely be distributed in equal shares giving Julie and Shawn a half interest each in the home. 

If Julie or Shawn wanted to take issue with how any of the property was divided, they would need to raise this with the court before distribution occurred. Following this distribution, Julie and Shawn may disagree on what to do with the family home and could undertake a partition action to dispose of the property or remove their interests from the home. 

Alternatively, if their mother died intestate and had no surviving relatives come forward to commence probate proceedings the attorney general could bring an action to vest title to her assets in the state. This would pass all assets to the state. If Shawn or Julie realized this happened without them knowing they would have five years to bring a claim to the property and have it distributed to them instead of going to the state. 

Conclusion

If there is disagreement among heirs as to what to do with real property after intestate distribution, at Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.