You know you need a will—but life is busy! And if you don’t have a large estate, does not having one even really make that much difference? Let’s find out…

What is intestate succession?

When someone passes away in the absence of a will, known as "dying intestate," his/her estate doesn't automatically transfer to loved ones or beneficiaries as perhaps intended. Instead, intestacy laws of the state where the decedent lived govern the distribution of assets and are designed to allocate this property in a fair, orderly way—but don't always align with the deceased's wants and may create complications with respect to asset distribution.

When a person dies intestate, the court appoints an administrator to manage the estate with a role similar to that of an executor named in a will though with actions guided strictly by state law. Estate assets are first used to pay off any outstanding debts, taxes, and administrative expenses; what remains is distributed per a predetermined order of inheritance that varies from state to state.

What happens if you die without a will?

In this case, your assets are distributed per a set hierarchy of heirs established by state law that is generally as follows (though varies by state):

Surviving spouse
Children
Parents
Siblings
Distant relatives (grandparents, aunts, uncles, cousins, or other extended family members)

In rare cases where no relatives are found, the estate may "escheat" to the state with state government taking ownership of assets. This is generally a last resort, with states making a dedicated effort to locate any possible heirs first.

This hierarchy sounds simple enough in theory, but in real life it can get complicated quickly. For example, in blended families with children from multiple marriages or stepchildren involved, some states may not recognize stepchildren as heirs. Additionally, unmarried partners often don't inherit under intestate succession laws regardless of how long they were together.

Intestacy challenges

Designed to provide a framework for asset distribution, intestacy laws can also create significant difficulties that go beyond the mere distribution of assets to impact everything from family relationships to important medical care decisions. These include…

Assets not distributed as per deceased's wishes

One primary issue with intestacy is that assets are sometimes not distributed in the way the decedent intended, as these laws follow a rigid heir hierarchy that doesn't account for personal relationships or specific wishes. For example, if the deceased wanted to leave a special piece of jewelry to a close friend or make a charitable donation, intestacy laws would not honor these intentions.

Timely/costly estate administration

Estate administration is the process of cataloging assets, paying off any debts, and distributing the estate to beneficiaries. In the absence of a will, estates typically go through probate: a timely and potentially costly process in which the court appoints an estate administrator who's in charge of this process. Family can also contest this, adding even more time and expense to estate administration.

Additional stress on loved ones

Without a will, family members may be forced to navigate complex legal processes (e.g., probate court) to determine how to divide the estate: leading to delays, legal fees, and even disputes among family members, particularly if disagreements about how to divide assets crop up. The added stress of grappling with legal complications is often overwhelming, especially during a time of grief, and can strain relationships already under emotional pressure.

Issues beyond asset distribution

Intestacy can also create other difficulties such as if the deceased had specific medical wishes regarding life support or the handling of his/her remains, for example, that aren't known or respected; loved ones must then make difficult decisions in the absence of clear guidance, potentially leading to disagreements or regrets.

What happens to my home if I die without a will?

Let’s consider a common asset: one's house. If you die without a will, the fate of your humble home depends on the intestate succession laws of your state and how the property is titled. If you owned the house jointly with someone else (e.g., a spouse) in "joint tenancy" or as "tenants by the entirety," it will typically pass directly to the surviving co-owner without going through probate. However, if you owned the house in your name alone, it becomes part of your estate and is distributed per state intestacy laws.

This process is often complex, particularly if multiple heirs are involved or if outstanding debts are in play. The property may need to be sold to pay off debts, or heirs might need to agree on how to manage or divide the property. These decisions are made according to state law when a will does not exist, perhaps not aligning with the decedent's personal wishes.

What happens if both parents die without a will?

Another critical issue that can arise from intestacy is the guardianship of minor children. Without a will naming a preferred guardian, the court will make its decision based on what it feels is in the best interest of the children: typically placing them with close family members such as grandparents, aunts, uncles, or even older siblings. However, if no suitable relatives are available or disputes among family members are in play, the court may place the children in foster care until a permanent guardian is found.

Variations in intestacy by state

Every state has its own intestacy rules, such as those whereby domestic partners are treated as spouses in some states but not others. Let's dig into a few specific states to get a good sense of how much the law can vary based on a few different intestacy factors (rather than an exhaustive list).

What happens if you die without a will in California?

Community property laws play a significant role for married decedents in the Golden State. While community property—including assets acquired during the marriage—automatically pass to the surviving spouse, separate property (assets acquired pre-marriage or via inheritance) may be divided between the spouse and any children depending on the circumstances. In the absence of children, the separate property might go to the spouse and the deceased's parents or siblings.

What happens if you die without a will in New York?

If the deceased was married and had children in New York, the surviving spouse receives the first $50,000 of the estate plus half of remaining assets (with the other half divided equally among children). The surviving spouse inherits the entire estate if there are no children, meanwhile, with the estate divided equally among any children in the absence of a surviving spouse.

What happens If you die without a will in Texas?

Texas is another community property state, meaning property acquired during the marriage is generally considered jointly owned by both spouses. If a person dies with a surviving spouse but no children, the surviving spouse inherits all community property and one-third of the deceased's separate personal property (with the remaining two-thirds going to the deceased's parents or siblings). If children from the marriage are indeed present, the surviving spouse retains his/her half of the community property while the decedent's half is divided equally among the children. If the deceased had children from another relationship, meanwhile, the surviving spouse only keeps half of the community property—with the deceased's half going entirely to the children.

Unlike some states, Texas doesn't recognize common-law marriages unless they meet specific requirements (e.g., if the couple agreed to be married, lived together in Texas as a married couple, and represented to others they were married). If these conditions are met, the surviving partner in a common-law marriage may inherit as a spouse under Texas intestacy laws.

What happens if you die without a will in Florida?

For married decedents in the Sunshine State, asset distribution depends on whether they had children and whether said children were also the children of the surviving spouse. If the deceased had no children or all children are shared with the widow(er), the surviving spouse typically inherits the entire estate. However, the surviving spouse will only receive half of the estate if the decedent had children from another relationship (with the remaining half divided equally among all children).

What happens if you die without a will in New Jersey?

In New Jersey, if the deceased was married with no children or living parents, the surviving spouse inherits the entire estate. If the decedent was married and had children with the surviving spouse, he/she still typically inherits the entire estate. If the deceased had children from another relationship, however, the surviving spouse inherits only the first 25% of the estate (not less than $50,000 or more than $200,000), plus half of what remains—with the rest divided equally among the deceased’s children.

If the deceased has no surviving spouse but did have children, they inherit the estate equally. If a child predeceases a parent, meanwhile, his/her share passes on to descendants (the deceased's grandchildren) under New Jersey's "per stirpes" distribution method.

The takeaway: dying without a will

Intestacy can spark a range of unintended and potentially distressing outcomes, leaving those left behind to navigate these challenges in the absence of clear guidance. Creating a will, therefore, is an essential step to ensure your wishes are honored, loved ones cared for, and assets distributed per your intentions. By taking the time to document your wishes, you can help steer clear of the difficulties and uncertainties that often accompany intestacy.

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What Happens If You Die Without a Will?