What Happens When Someone Dies Without a Will? A Guide to Understanding Intestacy

Death without a valid will—dying intestate—is more common than many people realize. Surveys show that roughly half of Americans either don’t have an estate plan or haven’t updated their documents in years. When someone dies without a will, courts apply intestacy laws to decide who inherits the person’s property. Because these laws were written as default rules for traditional family structures, the outcomes they produce can surprise or disappoint modern families—especially unmarried partners, blended families, or relatives outside the immediate bloodline. Intestacy often results in longer probate proceedings, higher costs, and disputes among heirs, and it deprives the deceased person of control over their legacy.

This article explains how intestacy works, what types of property aren’t controlled by a will, who becomes executor when there is no named personal representative, and who is entitled to inherit under state succession rules. It also highlights special considerations such as community property, common‑law marriage, and adopted or posthumous children, and it provides guidance for trustees and executors handling an intestate estate.

Property That Passes Outside a Will

Not all assets are subject to intestate succession. Some pass directly to named beneficiaries or surviving co‑owners regardless of whether there is a will. Understanding these non‑probate assets helps executors avoid unnecessary delay and guides heirs on what to expect.

• Assets with designated beneficiaries. Life insurance proceeds, retirement accounts (IRAs, 401(k)s, etc.), and payable‑on‑death (POD) bank accounts typically transfer directly to the beneficiaries named in the account documents, even if the decedent died intestate. Likewise, stocks or other securities held in transfer‑on‑death (TOD) accounts and vehicles or real estate with TOD titles or deeds will pass outside probate.

• Jointly owned property. Property held in joint tenancy, tenancy by the entirety, or community property with right of survivorship automatically belongs to the surviving co‑owner when one owner dies. This includes joint bank accounts and marital property in community property states. However, property owned by both spouses as tenants in common does not automatically pass to the surviving spouse; instead, each owner’s share is treated as a separate asset and may be subject to intestate succession.

• Trust assets. Property held in a living trust is governed by the trust agreement and does not pass through intestacy laws. Trustees continue managing the trust or distribute assets according to the document. If the deceased person created an irrevocable trust, the trustee must follow its terms and any applicable state statutes.

Because these assets bypass probate, one of the first tasks for a personal representative or trustee is to locate beneficiary designations and co‑ownership documents. If a retirement plan or life insurance policy lists a beneficiary, that person receives the proceeds automatically. If property is co‑owned with survivorship rights, the co‑owner becomes the sole owner.

Appointing an Executor or Personal Representative

When there is no will naming an executor, state law provides a priority list for appointing a personal representative to administer the estate. Intestate estates still require a court proceeding to gather assets, pay debts, and distribute property. The probate court looks to statutory rules to decide who will serve. Most states make the surviving spouse or registered domestic partner the first choice, followed by adult children and then other family members. If no family member is available or willing, the court may appoint a public administrator.

Acting as executor is a serious fiduciary responsibility: the personal representative must secure and inventory property, maintain insurance, file tax returns, pay creditors, and eventually distribute assets to heirs. Failure to perform these duties properly can lead to personal liability.

The Basic Rules of Intestate Succession

Although intestacy statutes vary by state, some general patterns apply. Only spouses, registered domestic partners, and blood relatives inherit under intestate succession. Friends, unmarried partners, and charities will typically receive nothing unless the decedent had a valid will or trust. If no relatives can be found, the estate escheats to the state.

Distribution if the Decedent Was Married

In most states, the surviving spouse receives the largest share. Many jurisdictions grant all of the decedent’s property to the spouse if there are no children. Where there are children, the spouse and children usually divide the estate. Community property states treat marital assets differently: half of the community property already belongs to the surviving spouse and the other half may also pass to the spouse. In separate property states, laws differ: some give the entire estate to the spouse if all children are also the spouse’s children; others allocate portions to children from previous relationships. Without a spouse, the estate passes to the decedent’s children.

Distribution if the Decedent Was Unmarried

If there is no surviving spouse, intestate laws divide the estate among descendants. Children inherit first, in equal shares; if one child predeceased the parent but left children, those grandchildren usually take their parent’s share. If there are no children, the estate passes to the decedent’s parents. If there are no surviving parents, then the estate is shared by the decedent’s siblings. Absent parents and siblings, state law searches farther: nieces and nephews, grandparents, aunts and uncles, cousins, and beyond. Eventually, if no relatives qualify, the estate escheats to the state.

Domestic Partnerships and Common‑Law Spouses

Intestacy rules treat domestic partners differently by state. Some jurisdictions fully recognize registered domestic partnerships and confer inheritance rights equal to married spouses. Others provide partial rights or none at all; in those states, unmarried partners typically inherit nothing. Likewise, common‑law marriages are recognized only in a handful of states. Partners must prove their relationship met the state’s common‑law requirements; otherwise, they are treated as unmarried and have no intestate rights.

Defining “Children” and “Issue”

Intestate statutes define children broadly but not always intuitively. Legally adopted children inherit the same as biological children. Stepchildren and foster children usually do not inherit unless the decedent legally adopted them or state law provides an exception. Children conceived but born after the parent’s death (“posthumous children”) generally inherit. Children conceived through artificial insemination or born outside marriage may inherit, but laws vary; proof of parentage may be required. Once a child is adopted by an unrelated adult, the legal relationship with birth parents is severed for inheritance purposes.

Disqualification for Misconduct

Most states bar people who caused the decedent’s death or committed serious crimes against the decedent from inheriting. For example, someone who killed the decedent cannot profit from the death. Some jurisdictions also prohibit parents who abandoned or failed to support a child from inheriting from that child.

Community Property versus Separate Property

Whether the decedent lived in a community property state or a separate property state affects how marital assets are handled. In community property states, spouses share equal ownership of property acquired during marriage, and the surviving spouse automatically receives the decedent’s half of that property. Only separate property—assets owned prior to marriage or acquired by gift or inheritance—is subject to intestate division.

In separate property states, marital and nonmarital property are not automatically equal; the surviving spouse may receive a fraction of the estate with children or other relatives inheriting the rest. Because these laws vary, it is critical to check the statutes of the state where the decedent lived.

Real Estate in Other States

If a decedent owned real estate in another state, that property is governed by the intestacy laws of the state where the property is located, not the state of residence. The executor may need to open an ancillary probate proceeding in that state to transfer the title. Trustees and heirs should be prepared for differences in how community property or inheritance rights apply.

The Probate Process in an Intestate Estate

Even when there is no will, most estates must still go through probate. The process generally involves:

1. Filing a petition with the court to open probate and appoint a personal representative.

2. Identifying and securing assets: The executor must locate, inventory, and safeguard property. This includes tangible items like furniture, vehicles, jewelry, and art; titled property like cars and boats; and intangible property such as bank accounts and stocks. The fiduciary often engages professional appraisers to determine fair market value.

3. Notifying creditors and paying valid debts and taxes. The personal representative must ensure debts of the deceased, including last income taxes and estate taxes if applicable, are paid from estate assets before distributing to heirs. Failure to file required tax returns or pay taxes can lead to personal liability.

4. Distributing the remaining property according to state intestacy laws. The executor files a final accounting and asks the court to approve distributions to heirs.

5. Closing the estate: After final distributions, the personal representative petitions to close the probate case and is discharged from their duties.

The process can take months or even years, especially if the estate is complex or heirs dispute the distribution.

Duties of Executors and Trustees in Intestate Estates

Being appointed as personal representative or acting trustee in an intestate estate is a heavy responsibility. Fiduciaries owe a duty of loyalty and care to the estate and its beneficiaries. Some key duties include:

• Secure and insure assets. As soon as the personal representative is appointed, they must safeguard the decedent’s property—locking up homes, storing valuables, maintaining insurance, and protecting digital assets. Failure to protect property can be deemed a breach of fiduciary duty.

• Create a detailed inventory. All property must be cataloged, including descriptions, estimated values, and locations. Professional appraisals are often needed for valuable items like art, jewelry, or collectibles. The personal representative must document and keep receipts for each action.

• Communicate transparently. Intestate estates often involve surprised or disappointed heirs. Regular updates and clear explanations of the law can reduce misunderstandings. A personal representative who fails to communicate may face claims of mismanagement.

• Seek professional advice. Many tasks—filing taxes, valuing property, interpreting intestacy statutes—require expertise. Working with attorneys, accountants, and financial advisers helps protect the fiduciary from liability.

• Be impartial. Beneficiaries are entitled to equal treatment. Trustees or executors should not favor one heir over another. Neglecting a beneficiary’s rights or delaying distributions can lead to lawsuits.

• Maintain accurate records. Courts and heirs may ask for an accounting. The fiduciary must track income, expenses, and distributions; record keeping also defends against allegations of mismanagement.

Special Considerations

Minor Children and Guardianship

If the decedent left minor children and no other parent is available, the probate court must appoint a guardian to care for them and manage their inheritance. Without a will specifying a guardian, the court will consider the children’s best interests and may choose a relative or qualified nonrelative. It is crucial to note that the guardian for the children’s care and the guardian for their property (guardian of the estate) might be different people. To avoid confusion, parents should name guardians in their wills or trusts.

Digital Assets

Modern estates often include digital assets—online accounts, photos, cryptocurrencies, and intellectual property. State intestacy statutes typically don’t address digital assets, leaving executors and trustees uncertain about access. Many states have adopted the Revised

Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which allows fiduciaries to access certain digital assets if authorized. Without a will or trust granting explicit permission, service providers may refuse access. Therefore, even in intestate cases, personal representatives must check state law and potential online tools for access to digital accounts.

Blended Families and Stepchildren

Intestate succession rarely favors stepchildren or children from prior relationships. In most states, stepchildren do not inherit unless the decedent adopted them. This can lead to unfair results in blended families where a stepparent wanted to include their stepchildren but never executed a will. For families with complex relationships, a well‑crafted estate plan is essential.

Out‑of‑State Property and Ancillary Probate

When a decedent owns property in multiple states, the personal representative may need to open probate proceedings in each jurisdiction. Ancillary probate can complicate administration and increase costs. Planning tools like revocable trusts can consolidate assets under one jurisdiction and avoid ancillary proceedings.

Consequences of Dying Without a Will

Intestacy has several adverse consequences for families:

• Lack of control over inheritance. State laws may leave assets to relatives the decedent would not have chosen. Unmarried partners and close friends may be completely excluded.

• Costly and time‑consuming probate. Probate without a will generally takes longer and incurs higher legal fees.

• Family conflicts. Without clear instructions, heirs may argue over who should inherit personal property, how to divide sentimental items, or who should administer the estate.

• Uncertainty in guardianship. For minor children, the court must appoint a guardian, and relatives may fight over who is best suited.

• Unintended beneficiaries. If no heirs are found, the estate escheats to the state.

Planning to Avoid Intestacy

The best way to avoid intestacy is to create and update an estate plan that includes a will or, better yet, a combination of a will and trusts. People can also reduce the assets subject to probate by naming beneficiaries on accounts, holding property jointly with survivorship rights, and funding living trusts. For complex family situations—unmarried partners, blended families, or beneficiaries with special needs—explicit instructions are essential.

Working with experienced attorneys, financial advisers, and trust professionals ensures the plan reflects current laws and the individual’s wishes. Regular reviews—especially after major life events or changes in state law—keep plans up to date. Finally, communicating the plan’s key provisions to family members can minimize surprises and conflicts later.

Conclusion

Dying without a will leaves distribution of your estate to state laws that may not align with your wishes. Intestacy statutes favor spouses and blood relatives and exclude many modern family members and causes you might care about. Executors and trustees must navigate complex rules, secure and value assets, manage probate proceedings, and treat all heirs fairly while facing potential personal liability.

A thoughtful estate plan prevents these issues, shortens probate, and provides clarity for loved ones. Whether your estate is simple or involves multiple properties, businesses, or digital assets, taking the time to create or update a will and trust is a gift to the people and causes you care about.