In this guide
What Is Intestacy?
When a person dies without a valid will, they are said to have died 'intestate.' Their estate is then settled under the intestacy laws of the state where they resided. These laws provide a default plan for who inherits your property, but they rarely match what most people would choose.
Intestacy laws vary by state, but they generally follow a similar hierarchy: spouses, children, parents, siblings, and then more distant relatives. If no relatives can be found, the state may claim your assets through 'escheat.'
The probate court appoints an administrator (often a close relative) to manage the estate. This person has no discretion to distribute assets based on what you might have wanted; they must follow the statute exactly.
- Intestacy applies to assets that would have gone through probate, not jointly owned property or accounts with designated beneficiaries.
- Life insurance, retirement accounts, and payable-on-death bank accounts pass directly to named beneficiaries, bypassing intestacy.
- If you have minor children, intestacy also determines who becomes their guardian, which may not be the person you would have chosen.
Who Inherits Under Intestacy?
The order of inheritance typically starts with your spouse and children. If you are married with children, most states give your spouse a share—often one-third to one-half—with the rest divided among your children. If your children are from a different relationship, the division can become complicated.
If you are unmarried with no children, your parents usually inherit everything. If your parents are deceased, your siblings or their descendants may inherit. If no relatives exist within a certain degree, the state takes the property.
State rules vary significantly, especially for unmarried partners, stepchildren, and half-siblings. For example, some states do not recognize common-law marriages, and stepchildren generally have no inheritance rights unless they were legally adopted.
- In community property states (like California and Texas), the surviving spouse may automatically own half of the community property, with the other half subject to intestacy.
- Some states have 'elective share' laws that protect a surviving spouse from being disinherited, but this only applies if there is a will; without a will, the intestacy share is fixed.
- If you die without a will and have no living relatives, your estate may escheat to the state, meaning the government takes your property.
The Probate Process Without a Will
When someone dies intestate, a family member or interested party must petition the probate court to be appointed as the estate administrator. This process involves filing forms, providing notice to heirs, and publishing a notice to creditors.
The administrator must gather all assets, pay debts and taxes, and then distribute the remaining property according to intestacy laws. This can take months or even years, especially if the estate is large or if there are disputes among heirs.
Unlike an executor named in a will, an administrator is chosen by the court based on state law priority (usually the surviving spouse, then adult children, then parents). The administrator must post a bond unless waived by the court, which adds cost.
- The administrator has a legal duty to act in the best interest of the estate and heirs, and can be held personally liable for mismanagement.
- Probate court fees, administrator fees, and attorney fees are paid from the estate, reducing what heirs receive.
- If there is no will, the court may require more hearings and documentation, extending the probate timeline.
Potential Problems and Family Conflicts
Intestacy can create significant problems, especially in blended families. For example, if you have a new spouse and children from a previous marriage, your spouse may receive a large share, and your children may get less than you intended.
Without a will, there is no opportunity to disinherit an estranged relative or leave a gift to a charity or friend. The law dictates who gets what, which can lead to resentment and legal challenges.
Disputes can arise over who should be the administrator, the valuation of assets, or whether a particular person is truly an heir. These disputes can drain the estate and delay distributions.
- In many states, a surviving spouse can choose between their intestate share and a 'statutory elective share' if the intestate share is less favorable.
- If you have minor children, the court will appoint a guardian for them, which may not be the person you would have chosen. Without a will, you have no say in this decision.
- If you have a domestic partner, they may receive nothing under intestacy laws, even if you lived together for decades.
How to Avoid Intestacy: Simple Estate Planning Steps
The simplest way to avoid intestacy is to create a will. You can use an online template or work with an attorney, but the will must meet your state's formal requirements: it must be in writing, signed by you, and witnessed by two or three adults (depending on your state).
Even if you have a will, certain assets—like life insurance and retirement accounts—pass outside probate if you name beneficiaries. Make sure your beneficiary designations are up to date, as they override your will.
Consider a living trust if you want to avoid probate altogether. A trust lets you transfer assets to a trustee to manage for your beneficiaries, and it can provide more control over when and how your heirs receive their inheritance.
- Review your will every few years or after major life events like marriage, divorce, birth of a child, or a move to a new state.
- If you die without a will, your assets may be distributed according to the laws of the state where you live, not where you were born or own property.
- You can also use 'transfer-on-death' (TOD) or 'payable-on-death' (POD) designations for bank accounts and securities to bypass probate.
- Even a simple will can name a guardian for minor children, which is one of the most important reasons to have one.
Special Considerations for Digital Assets and Small Estates
Digital assets, such as cryptocurrency, online accounts, and digital files, are often overlooked in estate planning. Without a will, your executor or administrator may not have legal access to these accounts, and they could be lost forever.
Some states have enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which allows you to give your executor access to your digital accounts, but only if you have a will or trust that explicitly grants that power.
If you have a small estate (under a certain threshold, often $100,000 or less), some states offer a simplified probate process called 'summary administration' that can be faster and cheaper, but you still need a will to ensure your wishes are followed.
- Make a list of your digital assets and passwords, and store it securely with your estate planning documents.
- For cryptocurrency, consider using a hardware wallet and leaving instructions on how to access it.
- If you have no will, the court may not know about your digital assets, and they may remain inaccessible to your heirs.