Ashford International Law P.C.

Where a California domiciliary dies without a valid last will and testament, Division 6 of the California Probate Code determines who receives the property that passes through the estate, and California law also governs California real estate, whatever the domicile of its owner. As a community property state, California determines the spouse’s share first by the character of each asset and only then by the family situation. This page sets out the rules as of September 2026. The overview of statutory succession compares California with Maryland, Virginia, the District of Columbia and Germany.

Summary

1. The surviving spouse or registered domestic partner receives the decedent’s half of the community property and of the quasi-community property in every case, in addition to the spouse’s own half.
2. Of the decedent’s separate property, the spouse receives the entire estate, one-half or one-third, depending on the number of children and on whether parents, siblings or their descendants survive.
3. The remainder passes to the descendants, then to the parents, the siblings and their descendants, the grandparents and their descendants, the descendants of a predeceased spouse, the next of kin and the family of a predeceased spouse, before the estate escheats to the State.
4. A person who resides outside the United States cannot serve as administrator. An administrator and the administrator’s attorney are each entitled to a statutory fee calculated on the gross value of the estate.
5. California levies no estate, inheritance or gift tax, but the reassessment of real estate for property tax purposes is a significant consequence of inheritance by children.

Part I. The estate subject to the statute

The statute governs the property that passes through the estate. Property held as community property with a right of survivorship (Cal. Civ. Code § 682.1), property held in joint tenancy, accounts with payable-on-death or transfer-on-death designations, real estate subject to a revocable transfer on death deed, life insurance, retirement accounts and assets held in a revocable trust pass outside the estate. Personal property is governed by the law of the owner’s domicile (Cal. Civ. Code § 946), and California real estate by California law.

For a married decedent, the first question is the character of each asset. Community property is property acquired during the marriage by a spouse domiciled in California, other than by gift or inheritance. Quasi-community property is property acquired while domiciled elsewhere that would have been community property had the spouses been domiciled in California; it is treated as community property only where the decedent dies domiciled in California (Cal. Prob. Code §§ 66 and 101). Property acquired abroad by spouses domiciled abroad is treated as community property where the law of their domicile characterizes it as community property or a substantially equivalent form of marital property (Cal. Prob. Code § 28). All other property of the decedent is separate property.

Part II. The surviving spouse or registered domestic partner

The surviving spouse already owns one-half of the community property and the quasi-community property. On an intestate death, the spouse also receives the decedent’s half (Cal. Prob. Code § 6401(a) and (b)). A registered domestic partner has the same rights as a surviving spouse (Cal. Fam. Code § 297.5). The decedent’s separate property is divided as follows (Cal. Prob. Code § 6401(c)).

Cal. Prob. Code § 6401. The spouse’s share of community and quasi-community property is the entire estate in every case.

Unlike Maryland, Virginia and the District of Columbia, California does not distinguish between children of the marriage and children from another relationship, or between minor and adult children. A spouse whose family wealth was earned during a California marriage generally receives the entire estate; a spouse whose family wealth is separate property, such as property owned before the marriage, inherited or acquired before a move to California, may receive only one-third or one-half of it.

A putative spouse, who believed in good faith that a valid marriage existed, has been held entitled to succeed to a share of the decedent’s separate property (Estate of Leslie (1984) 37 Cal.3d 186). California does not permit a common-law marriage to be formed in California, but recognizes a marriage validly contracted elsewhere (Cal. Fam. Code §§ 300 and 308). Unmarried partners who are not registered inherit nothing.

Part III. Descendants and other relatives

Whatever does not pass to the spouse, and the entire estate where there is no spouse, passes in the following order (Cal. Prob. Code § 6402):

1. to the descendants, divided equally at the nearest generation with a living member (Cal. Prob. Code § 240);
2. to the parents in equal shares, or to the surviving parent;
3. to the descendants of the parents, that is, the siblings and their descendants;
4. to the grandparents or their descendants;
5. to the descendants of a predeceased spouse;
6. to the next of kin in equal degree;
7. to the parents of a predeceased spouse or their descendants;
8. failing all of these, the estate escheats to the State (Cal. Prob. Code § 6800).

A special rule applies where the decedent leaves neither spouse nor descendants and the estate includes property attributable to a spouse who died earlier: real estate if that spouse died no more than 15 years before the decedent, and certain personal property with a written record of title if that spouse died no more than five years before. That portion passes to the predeceased spouse’s descendants and, failing them, to that spouse’s parents and their descendants, in priority to the decedent’s own parents and other relatives (Cal. Prob. Code § 6402.5).

Part IV. Administration without a will

The superior court appoints the administrator in the order of priority set by Cal. Prob. Code § 8461, beginning with the surviving spouse or domestic partner, followed by the children, grandchildren, other descendants, parents and siblings. A person who is not a resident of the United States cannot be appointed administrator (Cal. Prob. Code § 8402(a)(4)). Such a person may nominate an administrator, but the court will not appoint a nominee who is not a California resident and will ordinarily require a bond even if all heirs waive it (Cal. Prob. Code § 8465). A resident of another state may serve, subject to the requirements for nonresident personal representatives, including a bond at the court’s discretion (Cal. Prob. Code §§ 8570 to 8577). Most estates are administered under the Independent Administration of Estates Act (Cal. Prob. Code § 10400 and following), and creditors must generally file claims within four months after letters are issued (Cal. Prob. Code § 9100).

The administrator and the administrator’s attorney are each entitled to statutory compensation calculated on the gross value of the estate, without deduction of mortgages or other debts (Cal. Prob. Code §§ 10800 and 10810). The rates are 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9,000,000 and 0.5 percent of the next $15,000,000; above $25,000,000 the court determines a reasonable amount.

Cal. Prob. Code §§ 10800 and 10810. Extraordinary services may be compensated in addition.

Several procedures avoid or shorten administration. Property passing to the surviving spouse under the statute passes without administration (Cal. Prob. Code § 13500), and the spouse or domestic partner may obtain a court order confirming the transfer by a spousal or domestic partner property petition, without a value limit (Cal. Prob. Code § 13650). For deaths on or after April 1, 2025, personal property may be collected by affidavit where the estate does not exceed $208,850 (Cal. Prob. Code §§ 13100 and 890), real property may be transferred by an affidavit recorded after six months where the entire estate in California does not exceed $69,625 (Cal. Prob. Code § 13200), and the decedent’s primary residence in California with a gross value of up to $750,000 may be transferred to the heirs by court petition without full administration (Cal. Prob. Code §§ 13151 and 13152).

Part V. Tax consequences

California levies no estate tax, no inheritance tax and no gift tax. For deaths in 2026, the federal basic exclusion amount is $15,000,000, and property passing to a surviving spouse who is a United States citizen qualifies for the marital deduction. Property passing to a spouse who is not a citizen qualifies only if it passes to a qualified domestic trust (IRC § 2056(d)).

Community property receives a new income tax basis at the first death for both halves, provided at least one-half is included in the decedent’s gross estate (IRC § 1014(b)(6)), so that the character of an asset also affects the income tax on a later sale.

For property tax purposes, a transfer between spouses or registered domestic partners at death is excluded from reassessment (Cal. Rev. & Tax. Code § 63 and § 62(p)). A transfer from parent to child, or in certain cases from grandparent to grandchild, is excluded only for a family home that the heir occupies as a principal residence, with the homeowners’ exemption claimed within one year, or for a family farm, and only up to the prior taxable value plus an inflation-adjusted amount, which is $1,044,586 for transfers from February 16, 2025 to February 15, 2027 (Cal. Rev. & Tax. Code § 63.2). Other real estate inherited by children, including rental property and a home that the heirs do not occupy, is reassessed at its current value.

Part VI. Heirs and assets outside California

A person is not disqualified from inheriting because that person, or a person through whom the claim is made, is not a citizen or national of the United States (Cal. Prob. Code § 6411). The practical difficulties for heirs abroad lie in the exclusion of nonresidents of the United States as administrators, in the documentation of heirship and in withholding on a sale of inherited real estate: federal withholding under FIRPTA where the seller is a foreign person, and California withholding on the sale of California real estate (Cal. Rev. & Tax. Code § 18662).

Where a California domiciliary owns real estate in Germany, a German court applies California law as the law of the last habitual residence, but accepts California’s reference to the law of the place where the real estate lies (EU Succession Regulation, Arts. 21 and 34(1)(a)). The German real estate therefore passes under German statutory succession, as described on the page on statutory succession in Germany. Conversely, California real estate of a decedent domiciled in another state or abroad passes under California law and requires an ancillary proceeding in California (Cal. Prob. Code § 12510 and following), unless a simplified procedure is available. For spouses who acquired California real estate while domiciled in Germany, the characterization under Cal. Prob. Code § 28 requires particular care, because the German statutory property regime of community of accrued gains keeps the spouses’ property separate during the marriage.

Part VII. Practical steps

1. Establish the decedent’s domicile and list the assets that pass through the estate, separately from assets held in trust, jointly, as community property with a right of survivorship or with a beneficiary designation.
2. Characterize each asset as community, quasi-community or separate property, with particular attention to assets acquired before the marriage, by inheritance or before a move to California.
3. Identify all descendants, parents and siblings, since each affects the spouse’s share of separate property.
4. Determine whether a spousal property petition or a small estate procedure is available before opening a full administration.
5. Where an heir lives outside the United States, identify a California resident to serve as administrator and prepare for the bond.
6. Before children accept an interest in real estate, assess the property tax reassessment and the availability of the parent-child exclusion.

Conclusion

California’s statute favors the spouse where wealth was accumulated during a California marriage, and divides the estate where separate property is significant, as is frequently the case for families who moved to California from another state or from abroad. The statutory fees, the exclusion of administrators resident outside the United States and the property tax reassessment make a revocable trust the customary instrument for California real estate.

How the firm helps

Ashford International Law PC advises California families on estate plans and advises administrators and heirs on the settlement of California estates, including estates of families who moved to California from Europe and estates with heirs abroad. The overview of statutory succession compares California with the other jurisdictions in which the firm’s attorneys are licensed. Related material is available on the firm’s pages on marital property regimes, estate planning for non-US citizens, non-US beneficiaries and asset and tax planning for non-US residents with US assets.

This page is intended for general educational purposes and does not constitute legal or tax advice, nor does it create an attorney-client relationship. The matters described depend on the specific facts, the countries and states concerned, and the law in effect at the relevant time. Statuses and figures are stated as of September 2026 and must be confirmed before any decision.