Who inherits if you die without a will?

If you die without a will, your state's intestacy law decides who inherits. Nearly every state starts with the same rough order: a surviving spouse and children first, then parents, then siblings, then more distant relatives. What differs enormously from state to state is how much each of them gets, especially when there is both a spouse and children, and especially when some of those children are from an earlier relationship. Dying without a will does not mean the state takes your property; that happens only in the rare case where no relative at all can be found.

The other thing that happens is procedural: the court, not you, picks the person who settles your estate, and if you had minor children, the court decides who raises them without a nomination from you to follow.

What "intestate" means

Intestate simply means dying without a valid will. Intestacy statutes are the default plan every state writes for people who do not write their own. They are designed to approximate what a typical person would probably have wanted, which means they will fit some families well and others badly.

They are not optional and they are not flexible. A judge cannot deviate from them because your family agrees you would have wanted something different.

The usual order of inheritance

The general pattern looks like this in most states, though the details and the shares vary:

1. Spouse and children. How this splits is the single biggest source of variation. Some states give everything to the spouse when all children are also the spouse's children. Many states split it, giving the spouse a portion and the children the rest.
2. Children alone, if there is no surviving spouse, usually in equal shares, with a deceased child's share often passing to that child's own children.
3. Parents, if there is no spouse and no children.
4. Siblings, and then their children.
5. Grandparents, aunts, uncles, cousins, working outward.
6. The state, only if no eligible relative can be located. This is genuinely rare.

Because the percentages differ so much, it is not useful to quote numbers here. The rules for your own state are on our state estate planning pages, for example Illinois or Texas, and our detailed piece on dying without a will covers the concept in more depth, with a state-specific companion on intestate succession in Illinois.

Where the defaults surprise people

A spouse may not inherit everything

Many people assume a surviving spouse simply gets the house and the accounts. In a number of states, adult children inherit a share alongside the spouse. That can mean a surviving spouse owns a home jointly with their stepchildren, or needs their children's cooperation to sell it.

Unmarried partners inherit nothing

This is the harshest default. Intestacy laws track marriage and blood relationships. A partner of twenty years who is not married to you and not named anywhere generally receives nothing, no matter how the household actually functioned. A few states recognize limited alternatives, but the safe assumption is that an unmarried partner needs to be named in a will and on beneficiary forms.

Stepchildren generally do not inherit

A stepchild you raised from the age of four, but never legally adopted, is typically not an heir under intestacy. Legally adopted children, by contrast, generally inherit exactly as biological children do.

Minor children cannot receive money directly

If a child under 18 inherits, the money usually has to be held under court supervision or in a custodial arrangement, and in many arrangements it is handed over outright at 18. An 18-year-old receiving a lump sum is a common and avoidable outcome. A will with a trust for minor children, or a living trust, lets you set a more sensible age and appoint the person who manages it.

Someone still has to be appointed

The court names an administrator, usually following a priority order in state law. Frequently this is a surviving spouse or adult child, and frequently there is more than one person with equal standing. If two siblings both want the role, or neither does, that gets resolved in court.

Two examples

Ray and Delia. Ray dies at 52 without a will. He is married to Delia and has two adult children from his first marriage, Cassie and Marcus. Depending on the state, Delia may receive only a portion of Ray's estate, with Cassie and Marcus taking the rest. Delia lives in the house Ray owned in his own name, and now she holds it with two stepchildren who need cash. Nobody is behaving badly. The statute simply does not know what Ray wanted, and Ray never said.

Jo and Marta. Jo dies at 40 without a will. She and Marta have lived together for twelve years and are not married. Jo's parents are living. Under intestacy, Jo's parents inherit and Marta receives nothing, including no claim to the apartment in Jo's name. A one-page will would have changed the entire outcome.

What does not depend on intestacy at all

Intestacy governs only the property that was in your name alone with no other instruction attached. A lot of assets pass outside it:

• Retirement accounts and life insurance go to the named beneficiary. See the beneficiary form that overrides your will.
• Jointly owned property with survivorship rights goes to the surviving owner.
• Payable-on-death and transfer-on-death accounts go to the named person.
• Assets in a funded living trust follow the trust.

This cuts both ways. Someone can die with no will and have almost everything land exactly where they intended, because the beneficiary forms were current. Someone else can die with a will and have it overridden by a form they filled out in 2009.

Who raises your children

This is the part that matters most to parents, and intestacy law offers no help with it.

A will is where you nominate a guardian for children under 18. Without that nomination, the court decides based on the child's best interests, choosing among whoever comes forward. Usually it works out. Sometimes relatives disagree and a judge who never met you resolves it, slowly, in public.

A nomination is not absolutely binding on a court, but in practice it carries real weight and it prevents the dispute from starting. Our guides on how to name a guardian and estate planning for new parents cover how to think it through, including naming a backup.

Does dying without a will avoid probate?

No, and it usually makes probate harder. The estate goes through the same court process described in what is probate, except that the court may require more oversight, an administrator may be required to post a bond that a will could have waived, and heirs have to be identified and notified, which takes time when the family tree is complicated.

The fix is small

Writing a will lets you do five things the default rules cannot:

1. Decide who inherits, including an unmarried partner, a stepchild, a friend, or a charity.
2. Nominate a guardian for your children, with a backup.
3. Choose your executor, with a backup.
4. Control when children receive money, rather than at 18.
5. Leave specific items to specific people, which prevents most of the small arguments.

It does not take long. Most people finish Estateur's guided interview in under an hour, and we cover all 50 states and D.C. with state-specific signing instructions. See how to make a will online for the step-by-step, or take the three-minute quiz if you want a recommendation first. The Will Package is $99 for one person and $149 for a couple; everything is on our pricing page, and you can get started here.

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Estateur is a self-help document preparation service, not a law firm, and using Estateur does not create an attorney-client relationship. Intestacy rules and shares are set by each state's law and differ substantially. If you are dealing with an estate where someone died without a will, talk to a probate attorney in that state.