Most Fremont homeowners assume that if they die without a will, their spouse automatically inherits everything. That assumption is partly right and partly wrong in ways that can cost a family tens of thousands of dollars and more than a year in court. California intestate law does favor the surviving spouse but only for community property. Separate property follows a different path entirely, and the distinction matters far more than most people realize.
In the Bay Area, where a modest home can carry a seven-figure appraised value, the financial stakes of dying without a plan are substantial. California’s statutory probate fees are calculated on the gross value of an estate before any mortgages or debts are deducted. A Fremont home appraised at $1,200,000 with an $800,000 mortgage generates fees on $1,200,000 in gross value, not on $400,000 in actual equity. Understanding how California’s default rules operate is the first step toward deciding whether to replace them.
What California Law Does with Your Estate When There’s No Will
Dying without a will in California means dying intestate. The California Probate Code (specifically sections 6400 through 6455) controls who inherits your property. Your own preferences, relationships, and intentions carry no legal weight unless they were recorded in a valid document before death.
California is a community property state, which means property acquired during a marriage generally belongs equally to both spouses. Under intestate succession, all community property passes to the surviving spouse. Separate property (assets owned before marriage, gifts, and inheritances received during marriage) follows a different route. Depending on who survives, it’s divided among a spouse, children, parents, or siblings according to a fixed statutory priority order.
One consequence that surprises many Bay Area residents: unmarried cohabiting partners inherit nothing under California intestate law, regardless of how long the relationship lasted or how intertwined their finances were. Only registered domestic partners are treated equivalently to spouses. A long-term partner who isn’t a registered domestic partner and isn’t named as a beneficiary on individual accounts receives nothing through the intestate process.
Who Inherits Under California’s Intestate Succession Rules
California Probate Code section 6402 sets the heir priority order. The surviving spouse or registered domestic partner inherits first. Children come next, followed by parents, then siblings, and then progressively more distant relatives. The estate escheats to the state only if no qualifying relatives can be located.
The spouse’s share of separate property isn’t automatic. If one child survives, the spouse receives half of the separate property and the child receives the other half. If two or more children survive, the spouse receives one-third and the children divide the remaining two-thirds, per Probate Code section 6401(c). Stepchildren who were never legally adopted don’t inherit under these rules even if the decedent raised them for decades.
Two additional rules shape how distribution works in practice:
- The 120-hour survivorship rule under Probate Code section 6403 requires that an heir survive the decedent by at least 120 hours to inherit. If a beneficiary dies within that window, their share passes to their own children in what the code calls per stirpes distribution, meaning the deceased heir’s share is divided equally among their descendants.
- Stepchild exception: A court can treat a stepchild or foster child as a natural child for inheritance purposes if the relationship began while the child was a minor, continued throughout both parties’ lifetimes, and the failure to adopt was due to a legal barrier or a circumstance the parent would have remedied.
What Probate Costs a Fremont Estate Without a Plan
When an estate includes real property or assets above the small estate affidavit threshold ($208,850 as of April 1, 2025) it generally goes through formal probate in the Alameda County Superior Court. The statutory fee schedule under Probate Code sections 10800 and 10810 sets attorney and personal representative compensation at 4% of the first $100,000 of gross estate value, 3% of the next $100,000, and 2% of the next $800,000. Both the attorney and the personal representative are each entitled to this fee, so the combined cost is effectively doubled. On a Fremont home with a gross appraised value of $1,200,000, combined statutory compensation runs roughly $52,000 before filing fees, appraisal costs, or extraordinary service fees.
California’s AB 2016, effective April 1, 2025, created a simplified court procedure for primary residences with a gross value up to $750,000. In Fremont, where median home values significantly exceed that threshold, most homeowners don’t qualify. Full probate in Alameda County runs 12 to 18 months on average, with hearings held at the Berkeley Courthouse at 2120 Martin Luther King Jr. Way, Berkeley, CA 94704. Documents may be filed closer to home at the Fremont Hall of Justice, 39439 Paseo Padre Parkway, Fremont, CA 94538.
Assets That Pass Outside of Probate
Not every asset goes through probate. Some transfer automatically at death regardless of whether a will or intestate succession applies. Knowing which assets fall into this category can significantly reduce what an estate owes in fees and court time.
Jointly Held Property
Assets held in joint tenancy with right of survivorship transfer directly to the surviving owner at death without court involvement. This is a common way Fremont couples hold title to their home, but it doesn’t address what happens when both owners die simultaneously or in close succession.
Beneficiary Designations
Retirement accounts, life insurance policies, and bank accounts with named pay-on-death or transfer-on-death beneficiaries pass directly to the named individual. If a named beneficiary predeceases the account holder and no alternate is designated, those assets can fall back into the estate and become subject to both intestate succession and probate.
Transfer-on-Death Deeds
California Probate Code section 5620 allows homeowners to record a transfer-on-death deed naming a beneficiary for real property. The deed takes effect at death without any court proceeding, which can eliminate the single largest driver of probate costs for Fremont homeowners. A revocable living trust accomplishes the same result and offers additional flexibility over how property passes to younger beneficiaries or those with special needs.
What Intestate Succession Can’t Account For
The financial costs are significant, but they aren’t the only consequence. Two others tend to matter most to families with minor children or complicated family structures.
Without a will, no guardian is designated for minor children. The court applies its own statutory priority order, which favors relatives but doesn’t guarantee the outcome any parent would have chosen. A contested guardianship hearing can extend the process further and surface family disagreements at an already difficult time.
Intestate succession also assigns fixed percentage shares with no room for individual circumstances. A child who already received significant financial support, a family member who provided years of caregiving, a close friend who was nearer than any living relative: none of these relationships carry any weight under California’s default rules. The statute distributes assets according to biological and legal relationship alone, nothing else.
California’s default plan rarely reflects what families actually want for each other. A conversation with an estate planning attorney about a will, a trust, or both is the most direct way to replace the state’s plan with your own. The Arant Law Group, APC offers a free initial consultation and can be reached at (888) 561-2002.