Detailed answer
Short answer: Under California intestate succession rules, when a person dies without a will and only their children (no surviving spouse) are entitled to inherit, the estate is divided among the decedent’s children. Living children take an equal share. If a child died before the decedent but left descendants (grandchildren of the decedent), those descendants step into their parent’s share and divide it among themselves. California follows a ‘‘per capita with representation’’ approach for distributing among descendants. (See California Probate Code, Division 6 on intestate succession: Probate Code §6400 and related sections.)
Who inherits when there is no will?
If the decedent had only children and no surviving spouse, the children inherit the entire estate. If some children predeceased the decedent but left their own descendants, those descendants inherit their deceased parent’s share by representation.
How distribution works in practice (per capita with representation)
California distributes intestate estates among descendants using a method commonly described as “per capita with representation.” That means you look at the closest generation of descendants who are living and divide the estate equally among the living members of that generation; any deceased member’s share is divided equally among that deceased member’s surviving descendants.
Example A — All children survive
Decedent leaves three surviving children and no spouse. Each child receives one-third of the estate.
Example B — One child predeceased, with children
Decedent had three children: A, B, and C. B died before the decedent but left two children (B1 and B2). The estate is divided into three equal shares (one per child’s line): A gets 1/3, C gets 1/3, and the 1/3 that would have gone to B is split equally between B1 and B2 (each receiving 1/6).
Example C — Two children predeceased, leaving grandchildren
Decedent had four children: A, B, C, and D. A and B both predeceased but A left two children and B left one child. C and D survive. Under per capita with representation, start at the children’s generation: there are two living children (C and D) plus two surviving lines from the predeceased children (A’s line and B’s line) — four shares total. Each share equals 1/4 of the estate. A’s two children split A’s 1/4 share (each gets 1/8), B’s child gets 1/4, and C and D each get 1/4.
Other points that affect children’s succession rights
- Adopted children generally inherit from and through their adoptive parent as if biologically related. (California Probate Code addresses adopted children—check the Probate Code for specifics.)
- Children born out of wedlock inherit from their biological parent once parentage is established.
- Half‑siblings inherit equally with whole siblings unless a statute provides otherwise.
- If no child or descendant survives, the estate may pass to the deceased’s parents, siblings, or further relatives under the intestacy order in Probate Code §6400.
Practical steps to take when dealing with intestate succession among children
- Identify all legally recognized descendants (biological, adopted, recognized nonmarital children) and their documentation (birth, adoption, paternity orders).
- Determine who died before the decedent and whether those predeceased individuals left children; gather death and birth records.
- Calculate shares using the per capita with representation rule—start at the nearest generation with living descendants and allocate equal shares to each surviving person or surviving line.
- Check for any community property or surviving spouse claims if a spouse exists — spouse rules can alter children’s shares.
- If the estate is small, determine whether summary procedures (small estate affidavit) apply to avoid formal probate.
Helpful hints
- Keep clear family records: birth certificates, adoption papers, paternity documents, and death certificates are often essential to prove entitlement.
- Use a simple family tree diagram to map living descendants and deceased lines before doing math on shares.
- When in doubt about whether a person’s children can represent a deceased parent’s share, consult the relevant Probate Code provisions or an attorney.
- If heirs disagree, consider mediation or a family settlement to avoid expensive court contests.
- For estates with mixed assets (real property, retirement accounts, life insurance), remember that some assets pass by contract or beneficiary designation and do not go through intestate succession.
- Consult a probate attorney if the estate is large, complex, or if questions of parentage or adoption arise—an attorney can help with petitions, accountings, and court procedures.
Where to read the law: California’s intestate succession rules appear in Division 6 of the California Probate Code. Start with Probate Code §6400 and read the surrounding sections for details on representation, adopted children, and order of succession: Probate Code, Division 6 — Intestate Succession.
Disclaimer: I am not a lawyer. This article provides general information about California intestate succession for educational purposes and is not legal advice. For advice about a specific situation, consult a licensed California attorney.