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Dying without a Will - Laws of Intestate Succession

Updated: December 20, 2022

What are the consequences if you don’t arrange a will before passing away? Unless you have non probate assets such as trusts and jointly owned property, or have used other methods to pass on your estate, everything about the fate of your estate will be out of your hands.

  • Your state’s intestate inheritance laws will determine to whom and how your assets are distributed to your next of kin (i.e. your closest family members), despite what you may have wanted.
  • These laws differ in the order and amounts your relatives will inherit.
  • Any more distant relative, non-family member or charity you would have wanted to be a beneficiary would not receive anything, unless they were joint owners of an asset.
  • In the case that you have no next of kin, your assets are taken by the state.

Who are the "Next of Kin" in Inheritance?

Your next of kin are those people who are legally designated as your closest family members. They may also be referred to as heirs. Inheritance laws do not distinguish between biological relations and adoptive relations, but do not recognize stepchildren as heirs.

Even without a will, all jointly-owned property goes to the spouse. Ten states have community property laws where any property acquired by you and/or spouse during your marriage is jointly owned by the “marital community.”  The remaining states have common property, where ownership is defined in other ways, which affects how the property is distributed in a different way. It is usually split between your primary next of kin, your spouse, and children.

State as Executor

When a person dies without a will or has their will invalidated for whatever reason, the legal term is that they die intestate. This means the state becomes the executor of the estate, i.e. is responsible for locating your legal heirs and distributing your probate estate. An administrator is chosen by the probate court. Their goal is to try and duplicate how the average person would disperse their estate if they had a will. They may not take into account your wishes, the needs of your family and relatives, or any other relationships.

When the state settles your estate, Probate Court agents decide how to divide your individual property, including who receives what and in what order, based on the Uniform Probate Code and/or state-specific laws.

If your state does not recognize the Uniform Property Code, you will need to check the inheritance laws in your state.

If your state recognizes the Uniform Property Code, your surviving spouse is either entitled to all of the net estate — remainder of estate after paying your expenses and taxes — or a substantial part of it. For example:

  • Your surviving spouse is entitled to the entire net estate if you:
    • Live in a community property state;
    • Are also survived by your mutual children; and
    • Are not survived by descendants and parents;
  • If your parents, but no descendants, survive, your surviving spouse takes the first $300,000 of the net estate plus three-fourths of anything above that, with the remaining estate passing to your parents equally or, if only one survives, to the survivor;
  • If you are survived by descendants who are also the descendants of your surviving ex-spouse, and by descendants from a subsequent marriage, the surviving spouse (stepparent) gets the first $225,000 of the net estate plus one-half of anything exceeding that amount, with the remaining amount passing to your surviving children from your previous spouse or partner;
  • If you are not survived by any descendants who are also descendants of your surviving spouse but are survived by descendants who are from a subsequent marriage, your surviving spouse (their surviving parent) takes the first $150,000 of the net estate plus one-half of anything exceeding that amount;
  • If no spouse survives but your descendants do, they take the entire net estate by “right of representation;”

When you are single or not survived by a spouse and have descendants your entire estate is divided among your children in equal shares. If any child with their own children has died before you the deceased child’s share will go to your grandchildren.

When you are single without descendants.

  • If you have two surviving parents your estate is equally divided between them.
  • If one parent has already died, the estate is divided among your surviving parents and siblings (including half-siblings).
  • If you have no surviving parents your entire estate will be divided among your surviving siblings in equal parts. If there are no surviving siblings, any nieces and nephews will share your estate.
  • If there are no siblings or descendants of siblings, the net estate goes to your grandparents or their descendants (your cousins). The cousins on your maternal side would inherit one-half of the estate, and cousins on your paternal side would inherit the other half.

Any blood relative can stake a claim to the estate and the state may not consider the family’s circumstances. For example, if a relative needed money for life-saving treatment and you were planning on helping her pay for it but you died before doing it or directing it to be done in your will, they would not get any money unless they were your closest surviving relative.

Most states have rules preventing people who have harmed you from receiving inheritance. For example:

  • Anyone responsible for your death cannot profit from their deaths; or
  • If your ex did not pay child support, they will not receive inheritance if that child dies.

The court will be able to establish guardianship for your children based on its determination as to the children’s best interests.

Survivors of a registered Domestic Partnership are included in some states, but unmarried partners, close friends, and business partners are not on the list.

You may be intestate if a court determines your will is improperly drafted and deems it invalid. This is the primary concern when you create a will yourself.

The future State-specific Estate Planning Information section will have Inheritance By Relationship tables for your state. They may also be found at the following resources.

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