What Happens If Someone Dies Without a Will?
This guide is general information, not legal advice. Laws differ from state to state and change over time. For advice about your situation, talk to a licensed lawyer in your state.
When a person dies without a valid will, they are said to have died “intestate.” Their property does not disappear or automatically go to the government. Instead, state law decides who inherits, and a court oversees the process. Here is how it usually works.
Some property passes outside of probate
Before looking at intestacy rules, it helps to know that many assets pass directly to someone without going through probate, with or without a will:
- Life insurance and retirement accounts with named beneficiaries
- Bank accounts marked “payable on death” or “transfer on death”
- Property owned jointly “with right of survivorship,” which passes to the surviving owner
- Property held in a living trust
Intestacy laws apply only to what is left: property that was in the person’s name alone with no beneficiary designated.
Who inherits under intestacy laws
Each state has its own order of inheritance, but the general pattern is similar:
- Spouse and children: a surviving spouse usually receives all or a large share. If there are children, especially children from another relationship, they often share the estate with the spouse.
- Children only: if there is no surviving spouse, children usually inherit equally. If a child has died, that child’s children often take their parent’s share.
- Parents and siblings: if there is no spouse or descendants, parents and then siblings are usually next.
- More distant relatives: grandparents, aunts, uncles and cousins may inherit if there are no closer relatives.
- The state: only if no qualifying relative can be found does the property go to the state, which is called “escheat.”
In most states, unmarried partners, stepchildren who were not adopted, friends and charities receive nothing under intestacy laws. This is one of the most common reasons people are surprised when a loved one dies without a will.
Who manages the estate
Without a will naming an executor, the probate court appoints an administrator, usually a surviving spouse, adult child or other close relative. The administrator’s job is to:
- Locate and protect the person’s property
- Notify creditors and pay valid debts, taxes and final expenses
- Distribute what remains to the heirs according to state law
- File required reports with the court
Heirs generally are not personally responsible for the deceased person’s debts, but debts are paid from the estate before heirs receive anything.
Small estates
Most states have simplified procedures for small estates, such as a sworn affidavit that lets heirs collect property without a full probate case. The value limit varies by state.
Minor children
If a parent of minor children dies without a will and there is no surviving parent, a court decides who will raise the children and who will manage any money they inherit. A will is the main way parents can name a guardian themselves.
When to talk to a probate lawyer
Consider talking to a probate lawyer if the estate includes real estate or a business, if heirs disagree, if it is unclear who the heirs are, if there are significant debts, or if you have been asked to serve as administrator and are unsure of your duties. A lawyer can also tell you whether a simplified small estate process is available.
The best way to avoid these issues for your own family is to make an estate plan. See our guide Do You Need a Will?
Find a Estate Planning lawyer near you
Browse Estate Planning lawyers on NearLawyers, or choose your state to see lawyers grouped by city. You can also search by legal issue and location from the home page. Searching and contacting lawyers through NearLawyers is free.
