Madison Eubanks

Feb 21, 2025

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What Happens if You Die Without a Will? Understanding Intestacy Laws

Intestacy, or dying intestate, is legalese for when a person passes away without a will. When a person dies “intestate,” their estate is subject to the intestacy laws of the state they lived in. This means that who inherits the estate is left up to the government as defined by the state’s intestacy laws, rather than by the deceased person’s choice.

This can give rise to any number of issues and can create headaches for the intestate person’s family and loved ones. The purposes of wills and trusts are, of course, to communicate one’s wishes for what should happen to their assets and property after they die. 

Without a proper estate plan, a person’s estate falls into the hands of the court system, potentially leading to outcomes and distributions the decedent wouldn’t have wanted. 

In this article, you’ll learn more about what intestacy is, the consequences of dying intestate, how succession laws work, and more. 

What is intestacy? Understanding the legal implications of dying intestate

When a person dies intestate, their estate enters into probate to be distributed according to the specific intestacy laws in the state where they lived. Notably, intestacy laws vary widely by state, so there’s no singular answer to the question of what happens to an intestate person’s estate. 

It’s important to note that although a will doesn’t keep an estate out of probate, it does guide how the estate is distributed during the probate process. An estate with no will is completely subject to the state’s intestacy succession laws. 

Intestacy laws

We won’t go into every individual state’s intestacy laws here (you’d be scrolling for days), but let’s dive into some of the high-level ways these laws can vary from state to state. 

• Surviving spouses: Some states automatically grant 100% of the estate to the surviving spouse if there are no children or parents. Additionally, some divide the estate between the surviving spouse and any children, while some also allocate a portion to the deceased’s parents. 

• Children and descendants: Some states allow equal distribution of the estate among children, while others follow per stirpes distribution rules. State laws also differ in how they treat stepchildren, half-siblings, foster children, or adoptions. 

• Non-married partners: While some states recognize common law marriage and treat surviving partners as spouses for intestacy purposes, in most states, surviving unmarried partners receive nothing.

• Parents and siblings: Some states prioritize the deceased’s parents over siblings if there are no children or spouse, while others divide the estate equally between surviving parents and siblings. If there are no close relatives, state laws differ on how far they go to find distant heirs before the estate goes to the state. 
• Property: There are 13 community property states, in which a surviving spouse automatically owns half of all marital assets, and intestacy rules apply only to separate property.

Intestacy proceedings are overseen by a probate court, which we’ll touch on more in the next section. 

Consequences of dying intestate

There are many consequences of dying intestate—all of which, of course, fall to the decedent’s family and loved ones. Here’s a summary of the challenges people may face when a family member passes away without a will: 

• Lack of control over estate distribution: When a person dies without a will, their assets will be distributed according to the laws in the state where they lived. This could vary, perhaps significantly, from a person might have selected to receive their assets. Or, something as simple as moving from one state to another could radically change your plan.
• Lengthy, expensive probate process: Probating an estate without a will can be time-consuming and incur high legal and court fees.
• Potential family disputes: A lack of clear inheritance instructions can lead to conflicts among the next generations. 
• Uncertainty in guardianship: If no guardians are assigned to minor children, the decision is left to the courts. 
• Unintended beneficiaries: Assets may go to distant relatives or the state rather than intended recipients if the decedent didn’t leave instructions in a will.

Who inherits under state succession laws?

Intestate rules vary by jurisdiction, but the flow of assets often looks something like this: 

• Surviving spouse: A surviving spouse may inherit everything or share assets with any children.
• Children: If there is no surviving spouse, assets are divided among children.
• Parents: If there’s no spouse or children, assets may go to the decedent’s parents.
• Siblings and extended family: If there is no immediate family, assets move to siblings, nieces/nephews, or even distant relatives.
• The state: If no heirs can be identified, the assets may become the property of the government.

How financial advisors can help clients avoid intestacy 

Even if estate planning isn’t your area of expertise, having conversations about core documents and the importance of planning can be hugely impactful for clients and their families. 

Financial advisors should encourage clients to create a will, discuss its contents with their families, and update it regularly. Advisors can also have conversations with clients about the benefits of trusts to avoid probate, and ensure clients understand the importance of naming beneficiaries on accounts like retirement funds and insurance policies. 

How Vanilla helps

With Vanilla Document Builder™ advisors can offer all clients a modern way to get trusts and wills, then support them with ongoing estate advisory. There are  four tiers of packages designed to suit different clients’ need, all based on templates crafted in partnership with top estate attorneys. This means you can rely on the plans your clients get at no extra cost.

Learn more about Vanilla documents here.

The information provided here does not constitute legal, financial, or tax advice. It is provided for general informational purposes only. This information may not be updated or reflect changes in law. Please consult with an estate attorney, financial advisor, or tax professional who can advise as to your particular situation.