What happens if you die without a will in California?

Community property passes to your surviving spouse. Separate property is divided between your spouse and children according to Probate Code Sections 6400 through 6414. Probate can cost tens of thousands of dollars and take over a year.

Who decides guardianship if both parents die without a will?

A judge in family court appoints a guardian for your minor children. Without a nomination in your will, you have no legal voice in that decision. Guardianship disputes among family members can delay the process and separate siblings.

Can a trust replace a will?

A trust is a powerful complement to a will, but it cannot name a guardian for your minor children. Most estate planning attorneys recommend having both a trust and a pour-over will to create a complete plan.

What is the biggest risk of not having a will?

For parents, the biggest risk is losing control over who raises your children. For everyone, the biggest risk is that state law distributes your assets in a way that does not reflect your wishes, and your family pays more in time, money, and stress than they should.

What Happens If You Die Without a Will in New York or California?

Q: What happens if you die without a will in New York?

Your assets are distributed under EPTL Section 4-1.1. If you have a spouse and children, your spouse receives the first $50,000 plus half the balance. Your children split the rest. Unmarried partners and stepchildren inherit nothing.

Nobody plans to die without a will. But according to a 2025 Caring.com study, only about one in four American adults currently has one. That means the vast majority of families are leaving one of the most important decisions of their lives entirely up to the state. If you die without a will, you do not get to choose who raises your children, who receives your home, or how your money is divided. The court makes those decisions for you, using a rigid legal formula that does not care about your relationships, your values, or your intentions. For married couples in New York and California, especially those with young children, the consequences of dying without a will are more serious than most people realize. This guide explains exactly what happens, how it differs by state, and what you can do about it today.

What Does It Mean to Die Without a Will?

When someone dies without a valid will, the legal term is dying "intestate." In that situation, state law determines who inherits your assets through a process called intestate succession. These laws follow a strict order based on family relationships. They do not consider your personal wishes, your closest friendships, or any promises you made during your lifetime.

Intestate succession only applies to assets held in your name alone. Property held in joint tenancy, accounts with named beneficiaries like life insurance and retirement accounts, and assets in a trust all pass outside of intestate succession. But everything else, your home, your savings accounts, your personal belongings, falls under these default rules.

Die Without a Will in New York: How Intestate Succession Works

In New York, intestate succession is governed by EPTL Section 4-1.1. The rules are specific, and they often surprise people.

If you are survived by a spouse and no children, your spouse inherits everything. If you are survived by a spouse and children, your spouse receives the first $50,000 plus half of the remaining estate. Your children split the other half equally. If you are survived only by children, they inherit everything in equal shares. If you have no spouse or children, your estate passes to your parents. If your parents are also deceased, it goes to siblings, then to more distant relatives.

One detail that catches many married couples off guard is that a surviving spouse does not automatically get everything when children are in the picture. For most families, the intention is for the surviving spouse to inherit the full estate and use it to raise the children. Intestate succession does not work that way in New York. A portion of the estate goes directly to the children, and if those children are minors, a court-appointed guardian manages their share until they turn 18.

New York also does not recognize unmarried partners under intestate law. If you are in a long-term relationship but not legally married, your partner inherits nothing. Stepchildren who were never legally adopted are also excluded entirely.

Die Without a Will in California: What the Law Says

California intestate succession is governed by Probate Code Sections 6400 through 6414. Because California is a community property state, the rules work differently depending on whether assets are classified as community property or separate property.

All community property passes to the surviving spouse automatically. This is the one area where California law aligns with what most couples would expect. But separate property, which includes assets owned before marriage or received by gift or inheritance, follows a different path.

If you are survived by a spouse and one child, your spouse receives half of your separate property and the child receives the other half. If you have two or more children, your spouse receives one-third of the separate property and your children split the remaining two-thirds. If you have no children, your spouse may receive all of the separate property depending on whether you have surviving parents or siblings.

California probate is also notoriously expensive and slow. Statutory fees on a $1 million estate can exceed $46,000 in combined attorney and executor fees. The process often takes 12 to 18 months, during which your family may have limited access to funds they need for daily expenses.

What Happens to Your Children If Both Parents Die Without a Will?

This is the question that should concern every parent most. If both parents die without a will, the court appoints a guardian for your minor children. You get no say in who that person is. The judge decides based on the information available, which may come from family members who disagree with each other.

Guardianship disputes can be emotionally devastating and financially draining. They can separate siblings, uproot children from their schools and communities, and place them with relatives you might not have chosen. A will is the only legal document that allows you to name a guardian for your children.

A will also lets you separate the guardian role from the trustee role. The person you trust to raise your children may not be the best person to manage their money. Without a will, these decisions are bundled together by default and left to the court.

Common Risks of Dying Without a Will

Beyond the distribution of assets and guardianship, dying intestate creates several practical problems for the people you leave behind.

The probate process takes longer because the court must identify heirs, appoint an administrator, and resolve any disputes before assets can be distributed. Family conflict is more likely when there are no written instructions. Siblings, in-laws, and extended family may disagree about what you would have wanted, and those disagreements can end up in court.

Unmarried partners, stepchildren, close friends, and charities you care about receive nothing under intestate law. Your digital assets, including social media accounts, cryptocurrency, and online financial accounts, may be inaccessible without proper documentation.

For high-income families in New York, dying without a will also means missing out on estate tax planning opportunities. New York has its own estate tax with an exemption of $7.35 million in 2026. Without a will or trust, there is no structure in place to preserve both spouses' exemptions through tools like credit shelter trusts.

How Neptune Helps Couples Get Started

Most couples know they need a will. The challenge is knowing where to begin and how to get aligned before sitting down with an attorney. Neptune is built for exactly that moment.

Neptune is a structured platform that helps couples prepare for the legal and financial side of marriage. The platform connects each partner with an independent, highly qualified family law attorney. Neptune costs $4,500 per couple. Neptune does not provide legal advice and is not a law firm. What it does is help couples have clear, guided conversations about the decisions that matter most, including guardianship, asset protection, and estate planning.

For engaged couples and newly married parents, starting with Neptune means arriving at your estate planning attorney's office informed, aligned, and ready to make decisions rather than spending expensive legal hours sorting through the basics.

The Bottom Line

Dying without a will is not just a paperwork problem. It is a decision by default, one that hands control of your family's future to a courtroom. The laws of intestate succession in both New York and California are rigid, impersonal, and often surprising to the families they affect.

The fix is straightforward. A well-drafted will gives you the power to name a guardian for your children, protect your spouse, distribute your assets on your terms, and spare your family the cost and pain of an unguided probate process.

If you have not started that conversation yet, now is the time.