What Happens When You Die Without a Will

If someone dies without a will, their property typically passes to their closest relatives, known as their next of kin. This process, called intestate succession, follows your state’s laws. Here, we’ll cover what happens to your property, who might inherit, and whether it’s ever okay not to die without a will.

What Does Dying Intestate Mean?

Dying intestate usually means dying without a will, but it may also occur when a court finds a will to be invalid. This serves as a crucial reminder to ensure your will is properly written, signed, and witnessed. When someone dies intestate, state law decides who gets their property. Usually, property is distributed to close relatives in a set order, such as spouse, children, parents, or siblings. If there are no living family members, the property is transferred to the state through a process called escheat, although this is very rare. State laws are designed to transfer your property to anyone who was even remotely related to you.

Further, dying without a will means that you haven’t named an executor or guardians for minor children. So, in addition to managing the distribution of your property, the probate court will need to appoint someone to wind up your estate and possibly determine who will care for your minor children (if you have any).

What Happens to Your Non-Probate Assets?

Before focusing on what happens if you die intestate, it’s helpful to know that many kinds of property pass outside of a will. Intestate succession doesn’t apply to the following assets:

• life insurance proceeds if you’ve named a beneficiary
• property held in joint tenancy, tenancy by the entirety, or community property
• retirement plans, such as IRAs and 401(k)s, if you’ve named a beneficiary
• property in a living trust
• payable-on-death bank accounts
• transfer-on-death stocks or other securities
• vehicles or real estate held in transfer-on-death form

To find out who gets these assets, look at the documents where you named a beneficiary. These records show the new owner. If property was co-owned with a right of survivorship, the surviving co-owner gets it. If no named beneficiaries are alive, the property may pass by intestate succession as discussed in the rest of this article.

What Happens to Probate Assets?

Probate assets are subject to court supervision and legal proceedings after you die. If you don’t have a will, these assets include anything not passed on by the methods listed above. The court will handle these assets through a process called intestacy, which usually involves these steps:

1. Filing a petition with the probate court. To begin an intestacy procedure, someone must file a petition with the probate court, requesting to be appointed as the estate’s administrator. Typically, a family member files this petition; however, another interested party may also initiate the proceedings.
2. Appointing an administrator. The probate court will appoint an administrator, sometimes called a personal representative, to manage the deceased person’s estate. State laws provide a priority list for this position. Most make a surviving spouse or registered domestic partner the first choice. Adult children usually come next, followed by other family members.
3. Identifying and gathering property. The administrator must find and take inventory of all the deceased person’s probate assets.
4. Notifying heirs and creditors. The administrator notifies known and potential creditors and beneficiaries.
5. Paying debts and taxes. Before releasing any property, the administrator pays any estate debts and taxes and covers the cost of final arrangements, such as a funeral and burial or cremation expenses.
6. Distributing property. After paying debts and taxes, the administrator can distribute the remaining property in the order of inheritance set out in the state’s intestate succession laws.
7. Closing the estate. After distributing all property, the administrator files final paperwork with the probate court. If everything is in order, the court will approve the proceedings and close the estate.

Specific steps, procedures, and terminology may vary from state to state.

Property Distribution Through Intestate Succession

Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate succession laws. Unmarried partners, friends, and charities usually do not. Here are some common scenarios, but check your state’s laws or talk to a lawyer for details.

If you’re single. If you’re single and die intestate, your property will usually go to your children, if you have any. If you don’t have children, the law typically looks first to your parents, then to your siblings, and then to more distant relatives, such as nieces, nephews, grandparents, aunts, uncles, or cousins.

If you’re married. If you die without a will and are married, your spouse and children typically inherit your estate. If you have no children, your spouse is likely to receive everything. Other relatives inherit only if there is no surviving spouse or children. If no relatives can be located, the state claims the assets.

If you have no blood relatives. If you die intestate and have no family, your property will escheat to the state as described at the beginning of this article. Friends or charities receive nothing.

Intestate laws generally prohibit property distribution to people who have criminally hurt the deceased person. This includes crimes that involve bodily injury, abandonment, or financial abuse.

When It's Okay to Die Without a Will

Although most people are better off writing a will, some circumstances may minimize the repercussions of dying intestate.

If you have very little property. If you do not own much, your loved ones might be able to handle your affairs without going through probate, making a will technically unneeded. Without oversight, they can distribute your belongings and let others know about your passing. But if you have debts, property with a title, or minor children--or if disagreements come up--the court may need to get involved.

If all of your property passes outside of probate. If everything you own goes directly to your beneficiaries without probate, having a will may seem less necessary. However, it’s still a good idea to make a backup will to deal with any property you forgot to plan for, choose someone to handle your probate affairs if needed, and name someone to care for your minor children.

If you’re okay with your state’s intestacy laws. If the way your state will distribute your property works for you, then you might not need a will to make a plan for your property. However, as in the situations above, it still makes sense to make a backup will in case your circumstances change.

Learn More About Wills

For more information about wills, see the following articles:

• Why Do You Need a Will?
• Different Types of Wills
• Write a Will Without a Lawyer
• What to Include in a Will: Assets and Property

You can find out more about making WillMaker’s will and living trust in WillMaker’s Legal Manual.