What happens if you die without a will?

What intestacy laws control — and what they do not

Intestacy rules apply only to probate property: assets in your name alone with no beneficiary or survivorship arrangement. Life insurance, retirement accounts, payable-on-death accounts, jointly owned property with right of survivorship and trust assets still pass to the named beneficiaries or co-owners. For many people, those non-probate assets are the largest part of what they own.

Who inherits: a typical pattern

• Spouse and children, all children shared with the spouse — in many states, including those following the Uniform Probate Code, the spouse receives everything. In others, such as New York, the spouse receives the first $50,000 plus half of the rest, and the children share the remainder.
• Spouse and children from another relationship — the spouse usually receives a smaller share, and the children receive the rest.
• Spouse, no children — the spouse often receives everything, though some states give a share to the deceased's parents.
• Children, no spouse — the children share equally; the children of a child who died first take that child's share.
• No spouse or descendants — parents, then siblings and their children, then grandparents and more distant relatives.
• No relatives found — the property goes to the state (escheat).

In community property states, the surviving spouse already owns half of community property and usually inherits the deceased's half as well; separate property follows a different formula.

Who usually gets nothing

Unmarried partners, no matter how long the relationship; stepchildren who were never adopted; close friends; charities; and caregivers. If you want any of them to inherit, you need a will, trust or beneficiary designations.

Who manages the estate

Without a will naming an executor, the court appoints an administrator, usually following a priority list — surviving spouse, adult children, other relatives — and may require a bond, which costs money. If relatives disagree about who should serve, the court decides after a hearing.

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Minor children

If both parents die without naming a guardian, a judge chooses one, considering relatives who ask for the role and the child's best interests. Money inherited by a minor is typically held in a court-supervised guardianship or custodial account, with annual reports, and the child receives everything outright at 18 or 21 — an age many parents consider too young.

Other consequences

• More cost and delay — bonds, court supervision and heir searches add expense.
• Unintended results — a spouse may have to share the family home with the children, or co-own it with minors, making a sale difficult.
• Family conflict — disputes over who serves as administrator and who counts as an heir.
• Lost planning opportunities — trusts for young beneficiaries, special needs planning, charitable gifts and tax planning are unavailable.

Special rules

Most states require an heir to survive the deceased by 120 hours to inherit. Adopted children inherit like biological children; children born outside marriage inherit from a father once paternity is established. Half-siblings usually inherit the same as full siblings. A person who intentionally killed the deceased cannot inherit.

Small estates

If the probate estate is below your state's small-estate limit, heirs may be able to collect property through a simple affidavit rather than a full court case, still following the intestacy order.

Real estate in other states

Real estate is governed by the intestacy law of the state where it is located, so a house in another state may pass under different rules and require a separate probate there.

How to avoid intestacy

A basic will — naming beneficiaries, an executor and guardians for children — solves most of these problems. Pair it with up-to-date beneficiary designations, a durable power of attorney and a health care directive. If a relative has already died without a will, the heirs or a close family member can contact the probate court in the county where the person lived, or a probate lawyer, to open an administration.