When a person dies without a valid will, they are said to have died intestate. In this situation the state steps in and determines how the deceased person’s assets are distributed according to a set of laws called intestacy laws. The outcome may be very different from what the person would have wanted.
What intestacy laws are
Every state has intestacy laws that establish a default order of inheritance when someone dies without a will. These laws are designed to distribute assets in a way that reflects what most people would presumably want — generally prioritizing spouses, children, and other close relatives. However, because intestacy laws apply a one-size-fits-all approach they frequently produce outcomes that do not reflect the actual wishes of the deceased.
Who inherits under intestacy laws
The specific rules vary by state but intestacy laws generally distribute assets in the following order of priority:
- Surviving spouse — in most states a surviving spouse receives a significant portion or all of the estate depending on whether the deceased had children and whether those children are also the spouse’s children
- Children — if there is no surviving spouse or if the spouse’s share does not include the entire estate the remaining assets are typically divided equally among the deceased’s children
- Grandchildren — if a child of the deceased has already died their share may pass to their own children — the deceased’s grandchildren — through a legal concept called per stirpes distribution
- Parents — if there is no surviving spouse or children the estate may pass to the deceased’s parents
- Siblings — if there are no surviving parents assets may pass to siblings
- More distant relatives — if no closer relatives survive the estate may pass to aunts, uncles, cousins, or other more distant relatives
- The state — if no living relatives can be found the estate escheats — meaning it passes to the state government
What intestacy laws cannot account for
Intestacy laws follow a rigid formula that cannot account for the personal circumstances and wishes of the deceased. Common situations where intestacy laws produce unintended results include:
- Unmarried partners — a long term partner or significant other has no inheritance rights under intestacy laws in most states regardless of the length or nature of the relationship
- Stepchildren — stepchildren generally have no inheritance rights under intestacy laws unless they were legally adopted
- Estranged relatives — assets may pass to relatives the deceased had no relationship with while close friends or chosen family members receive nothing
- Blended families — the distribution among children from different relationships may not reflect the deceased’s actual wishes
- Charitable giving — intestacy laws make no provision for charitable gifts meaning organizations the deceased cared about receive nothing
- Specific bequests — there is no mechanism for leaving specific items to specific people such as a piece of jewelry to a particular friend or a family heirloom to a specific relative
The probate process without a will
When someone dies without a will their estate still must go through probate court. However the process is different in several ways:
- Instead of an executor named in a will the court appoints an administrator — often a close family member — to manage the estate
- The administrator must post a bond in many states to protect against mismanagement of the estate
- The court oversees the distribution of assets according to state intestacy laws rather than the deceased’s wishes
- The process may take longer and cost more than probate with a valid will because there is no clear roadmap to follow
Assets that are not affected by intestacy
Not all assets are subject to intestacy laws. Assets that pass outside of probate regardless of whether a will exists include:
- Life insurance policies with a named beneficiary
- Retirement accounts such as IRAs and 401(k)s with named beneficiaries
- Bank accounts with a payable-on-death designation
- Assets held in a living trust
- Jointly owned property with right of survivorship
These assets pass directly to the named beneficiary or joint owner regardless of what intestacy laws say. This is why keeping beneficiary designations up to date is an important part of estate planning even for people who have a will.
Guardianship of minor children
One of the most significant consequences of dying without a will when you have minor children is that you have not named a guardian for them. Without a will a court must decide who will raise your children. While the court will attempt to act in the children’s best interests the decision may not reflect your wishes.
Naming a guardian for minor children is one of the most compelling reasons for any parent to create a will regardless of the size of their estate.
The cost of dying without a will
Dying without a will can be significantly more expensive and time consuming for your family than dying with one. Potential costs include:
- Higher legal fees due to the complexity of intestate administration
- Court costs for appointing an administrator and overseeing distribution
- Bonding costs for the administrator
- Family disputes that may lead to litigation
- Delays in distributing assets that can last months or years
Common misconceptions about dying without a will
- My spouse will automatically get everything — this is not always true. In many states children from a prior relationship may be entitled to a share of the estate even if a surviving spouse exists.
- My family knows what I want — knowing your wishes and having the legal authority to carry them out are two different things. Without a will your family has no legal basis to honor your stated wishes.
- I do not have enough assets to need a will — even modest estates benefit from a will. It avoids unnecessary court involvement and ensures your wishes are followed.
- A will is too expensive or complicated — basic wills can be created affordably through an attorney or online legal services. The cost of a simple will is almost always far less than the cost of dying without one.
How to avoid dying intestate
The solution is straightforward — create a valid will. A will does not need to be complicated or expensive. At a minimum a basic will should:
- Name your beneficiaries and describe how you want your assets distributed
- Name an executor to manage your estate
- Name a guardian for any minor children
- Be properly signed and witnessed according to your state’s requirements
For more complex estates a living trust, beneficiary designations, and other planning tools can work alongside a will to ensure a smooth and efficient transfer of assets.
Key terms to know
- Intestate — dying without a valid will
- Intestacy laws — state laws that determine how assets are distributed when someone dies without a will
- Administrator — a person appointed by the court to manage an estate when there is no will
- Escheat — the process by which an estate passes to the state when no living relatives can be found
- Per stirpes — a method of distributing assets where a deceased beneficiary’s share passes to their descendants
- Probate — the court supervised process of validating a will and distributing an estate
- Guardian — a person named to care for minor children if both parents die
Sources
- USA.gov — Estate Planning
- American Bar Association — Public Resources
- National Institute on Aging
This article is for general informational purposes only and does not constitute legal advice. Intestacy laws vary significantly by state. Consult a licensed attorney for guidance specific to your situation.