Most people know they “should” have an estate plan set up. But did you know that if you do not have an estate plan, the State of California already wrote one for you, but it's almost always not the plan you would choose.

When a Californian dies without a valid will and trust, the state's intestate-succession rules (California Probate Code §§ 6400 et seq.) decide who gets what. Those rules straightforward and are uninformedly applied. They do not know that you and  spouse have been separated for years but never finalized the divorce, that your adult child has may be estranged from you, or that the business you spent two decades building cannot legally be inherited by your spouse if they are not licensed in that field. They simply apply formulas.

The Default Rules

For a married Californian, community property, generally what was earned during the marriage, passes entirely to the surviving spouse. Separate property, what you brought into the marriage, inherited, or received as a gift, is split based on whether you have children and how many. Married with one child: separate property is split 50/50 between spouse and child. Married with two or more children: spouse takes one-third and children share two-thirds. Unmarried with children: the estate goes to your children in equal shares. No spouse and no children: the law walks up and out the family tree, parents, then siblings, then nieces and nephews, then cousins. If there is no family or relatives to inherit,  the estate “escheats” to the state or county, meaning the state keeps your assets.

The order of succession is strict, and may not reflect what your actually wishes are. That's why creating or updating an estate plan is so important.

A few traps people are surprised to learn about. The estranged-but-not-divorced spouse you have not spoken to in five years is still your spouse for inheritance purposes, until your divorce Judgment is issued, you're both still legally married. The long-term unmarried partner, the person who is, in every meaningful sense, your family, is legally a stranger or would have to spend thousands of dollars in court to prove otherwise. The minor child you intended to leave well-cared-for receives their share outright at age 18, with no trust, no trustee, and no guardrails. And nothing in intestacy names a guardian for that child; the court does.

For a business owner, the stakes are higher than for a typical Californian. Depending on your profession it may not be legal for it to be owned by someone who is not licensed in that area, meaning your spouse and adult children almost certainly cannot inherit and hold it. For example a doctor, lawyer, pharmacist or contractor, would not be able to have their spouse inherit their business if they are unlicensed with very few exceptions.

Real estate held in your individual name cannot be transferred by California's small-estate procedure; it requires probate. Investment and retirement accounts pass according to beneficiary designations you may not have updated in fifteen years or, if no beneficiary was named, through probate.

 If you have not written your plan, the State of California has written one for you. You can keep it, or you can replace it.

The Kern County Law Library provides a breakdown of what succession looks like in California without estate planning in the link below.