Dying without a Will - Laws of Intestate Succession

What are the consequences if you don’t arrange a will before passing away? Everything about the fate of your estate will be out of your hands and your assets are distributed to your next of kin (i.e. your closest family members) even if that is not what you wanted. In other words, any non-family member or charity you would have wanted to be a beneficiary would not receive anything. In the case that you have no next of kin, your assets are taken by the state.

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 state-specific laws.

Generally your estate goes to your next of kin, such as a spouse or children/grandchildren.

If you have no spouse or children, it is divided among siblings, parents, or other more distant relatives.

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.

Who are the “Next of Kin” in Inheritance?

Your next of kin are those people who are legally designated as your closest family members. Inheritance laws do not distinguish between biological relations and adoptive relations. State intestate inheritance laws may be different from those who will get an inheritance from you when you die without a will.

Most states have community property laws where all jointly-owned property goes to the spouse. Ten states have common law properties, 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. 

Whether you don’t have a spouse or you and your spouse jointly own property in a common property law state and don’t have children, in most states the next in line is your parents or grandparents followed by siblings, then nieces and nephews, aunts and uncles, and cousins.

See the Inheritance By Relationship table for your state in the State-specific Estate Planning Information section.

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