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, 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. 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 with a will.

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 state-specific laws.

Under the 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 are also survived by your mutual children;
  • They are also entitled to the entire net estate if you are not survived by descendants and parents;
  • If your parents, but no descendants, survive, your surviving spouse takes the first $200,000 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 $150,000 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 $100,000 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;”
  • If you are not survived by a spouse or descendants, the entire net estate passes to your parents equally or, if only one survives, to the survivor; and
  • If you are not survived by a spouse, descendants, or parents, the entire net estate passes to your siblings. If there are no siblings or descendants of siblings, the net estate goes to your grandparents or their descendants (your cousins).

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.