When a person dies without a valid will, the law calls it dying intestate. No one gets to say what the person would have wanted. Instead, the state in which they lived decides who inherits, who is in charge of the estate and, in some cases, who raises minor children. For many families, the result is slow, costly and not what the parent intended.
If you are dealing with this now, this guide explains what usually happens and what steps to take. If you are not, it is a reminder to put your own affairs in order.
Who decides who inherits?
Each state has its own intestacy statute, a set of rules that lists, in order, who inherits when there is no will. The details differ, but the pattern is similar in most places:
- Surviving spouse and children: The spouse often receives a share, and the children share the rest, though the exact split depends on the state and whether the children are also the spouse’s children.
- Spouse and no children: The spouse usually receives all or most of the estate, though some states give a share to the deceased’s parents.
- Children but no spouse: The children usually share equally.
- No spouse or children: The estate often passes to parents, then to siblings or their descendants, then to more distant relatives.
- No known relatives: In rare cases, the property goes to the state.
Because of these rules, some people can be left out unintentionally. In most states, an unmarried partner has no automatic right to inherit, no matter how long the relationship lasted. Stepchildren and close friends generally inherit nothing. A child who has been estranged still has a legal share.
Who is in charge of the estate?
Without a will, there is no named executor. The probate court appoints an administrator, usually a close relative such as the surviving spouse or an adult child. The administrator often must post a bond, a type of insurance, and has to follow court-supervised rules. If family members disagree about who should serve, the process can stall. See What Is Probate, and How Do Families Avoid It? for how the process works.
What about assets that do not pass by will anyway?
Many assets pass outside the will, whether or not there is one. These typically include:
- Retirement accounts and life insurance with named beneficiaries.
- Payable-on-death and transfer-on-death accounts.
- Jointly owned property with right of survivorship.
- Assets held in a trust.
These go to the named person or co-owner. Only property in the deceased person’s sole name, with no beneficiary, is controlled by the intestacy rules. That is why beneficiary designations are so important.
What if there are minor children?
This is the part that worries parents most. A will is the usual place to name a guardian for minor children. Without one, a court decides, usually giving priority to the surviving parent, and otherwise choosing among relatives. The court will aim for the child’s best interest, but the decision may not match what the parents would have chosen. Inheritance for a minor is also typically held under court supervision until the child reaches adulthood, at which point they may receive everything outright at 18 or 21, depending on the state.
Why it can cost more and take longer
- Court involvement is required for appointing an administrator.
- Family members may disagree about who should serve, or about what the person wanted.
- Heirs may need to be formally identified and located, especially distant relatives.
- There is no guidance for dividing sentimental items.
- Bond premiums and extra legal work add to costs.
What to do if a parent has died without a will
- Look carefully for a will. Check with the family attorney, the home, a safe deposit box and the county court. Sometimes one exists.
- Get certified copies of the death certificate. You will need several.
- Secure property. Lock the home, collect mail, and keep insurance in force.
- Locate documents and accounts. Look at tax returns, bank statements and mail for clues. See The Family Folder: 11 Documents Your Heirs Need.
- Contact the probate court in the county where the person lived, or hire a probate attorney, to start the administration.
- Do not give away or sell property yet. Wait until the court has appointed an administrator.
- Talk with siblings openly. Agree on how to handle communication, sentimental objects and decisions.
- Keep records. The administrator is accountable to the court and heirs.
- Look for small-estate options. Many states have simpler procedures for modest estates.
How to avoid this outcome for your own family
Dying without a will is common, partly because it is uncomfortable to think about. But it takes less effort than most people fear.
- Make a will. Even a simple one names who inherits, who is in charge and who guards your children.
- Consider a living trust if your situation is more complex. See Will vs. Living Trust: Which Does Your Family Need?
- Check your beneficiary forms.
- Sign a durable power of attorney and a health care proxy.
- Keep a folder and tell your family where it is.
- Review everything after major life events and every few years.
Talking to your parents
If your parents have not made plans, you can raise the subject kindly. We have a guide to help: How to Talk to Your Parents About Their Will. A friendly, practical approach works better than pressure.
The takeaway
Without a will, the law writes the plan, and the law knows nothing about your family. The result may be slow, costly and unfair to the people you most want to protect. A simple set of documents prepared now can spare your family months of difficulty later.
This article is general education, not legal advice. Intestacy laws differ by state; consult a licensed attorney.