What Happens if You Die Without a Will?

When someone close passes away, there is a long list of decisions to be made and tasks to be completed in managing their affairs. Wills are created to assist loved ones in making some of these decisions.

Dying without a will means you have very limited input into how your property gets distributed when you die or how your loved ones are financially provided for. State law will step in and make those decisions for you.

“Do it,” urges estate planning lawyer Anita Rosenbloom of McDermott Will & Schulte in New York City. “We’re all mortal, including young people.”

What Does It Mean To Die Intestate?

Dying intestate means you die without a will. This could be because you never created a will, or the will you created isn’t legally enforceable. When you die without a will, your state’s intestate succession laws kick in to determine how your assets will be distributed.

“In pretty much all states, there are intestacy laws that provide the default if there is no estate plan that says how your assets will be divided,” says Robert Will, an estate and trust litigation lawyer at Lewis Rice in Saint Louis, Missouri.

“The state decides how your estate will be distributed for you. Usually, it involves your assets going to a combination of your surviving spouse if you have one, your children or their descendants, or if you have no descendants and aren’t married, to collateral relatives such as parents, brothers, sisters, aunts, uncles, etc.”

Without a Will, Your Assets Could Go to Unwanted Beneficiaries

“What people generally don’t realize is that if they die intestate, meaning without a will, their state legislature has written an estate plan for them,” adds Carole Bass, an estate planning lawyer at Sullivan & Worcester in New York City.

The people who get your assets under intestacy laws could be “people you’ve never even had contact with when you were alive,” says Will. Because of this, intestate succession “often does not track” an individual’s preferences for their estate.

“For example, if your sister is your only relative, you may not think you need a will. But you need to think: ‘What if my sister doesn’t survive me? Am I OK with it going to her kids?’ That’s where the law says it would go,” says Laurie Ruckel of Loeb & Loeb in New York City.

What Is the Order of Intestate Succession?

The order of intestate succession varies by state law. But generally, assets are distributed to closest relatives first and then moves outward to more distant relatives:

1. Surviving spouse. If you have no children, the entire estate passes to the surviving spouse. If there are children, the estate is equally divided between the surviving spouse and the children.
2. Surviving children. This includes biological and adopted children. Stepchildren are generally not included in intestate succession.
3. Equal shares to surviving parents. If only one parent survives your death, it will go entirely to them.
4. Equal shares to surviving siblings. If there are no surviving parents at your time of death, your assets will be equally distributed to your surviving siblings.
5. Nieces and nephews. If no siblings survive you, the estate will be distributed to your siblings’ children.
6. Cousins. From there, the estate will be distributed to cousins.

When a person dies with no living family members, there is no one to inherit their assets. In this situation, their assets revert to the state. This is called escheat.

Who Manages Your Estate if You Die Without a Will?

In addition to naming beneficiaries, a will appoints an executor or personal representative (PR) to manage your estate. Without a will, the state steps in to appoint a PR.

A surviving spouse, domestic partner, adult child, or other close relative could serve as PR or executor of your estate. The probate court will decide who can serve as PR by making a determination if they have “priority” to manage the estate.

Unless the deceased organized all of their important documents, loved ones must search through their home and belongings to find any and all records of assets. Once a PR is appointed by the court, the PR will have the authority to request information on the deceased’s assets from others.

Potential for Conflict in Intestate Succession

Families can be complicated and combative. When people aren’t happy about a will, they often go to court. “So, in order to plan properly, you should always consider the family issues that could generate litigation,” says Ilene Cooper, an estate and trust litigation lawyer at Farrell Fritz in Uniondale, New York.

Cooper says that common legal issues could involve:

• Second-marriage situations
• The impacts of treating one child differently from another
• Disagreement about the selection of an executor or trustee
• The division of property, including works of art, real estate, or family business

All these situations can get ugly. “I don’t think I can emphasize this enough,” says Rosenbloom. “If you don’t have a will, you’re potentially leaving a mess, and foisting this responsibility on your loved ones at the worst time.”

The Role of the Probate Court

The deceased person’s assets fall into two types: Probate and non-probate assets.

Probate is the legal process of settling an estate in court. Probate assets of someone who dies without a will are distributed via intestate succession laws. Non-probate assets will be transferred to the named beneficiary or joint owner outside of the probate process.

When you die, money and other financial assets you own can be distributed:

• Directly to beneficiaries named on accounts
• Through probate according to your will or your state’s intestate succession laws

When a beneficiary is named on an account, that account will be directly paid out or transferred to the beneficiary when you die.

The Importance of a Will

A will ensures that your estate is handled in accordance with your wishes. Without a will, you are leaving all decisions up to the state, which may not distribute your assets in a way you agree with.

The state doesn’t consider your desires; it purely follows the statute. This can leave many people whom you would want to inherit out of the conversation. Friends, non-qualifying relatives, charities, and pets will not inherit.

Domestic partnerships are not recognized as spouses. If you have minor children, a will is essential to ensure your preferred guardian takes care of them. Further, a will gives you and your family peace of mind.

Get Legal Help from an Estate Planning and Probate Law Attorney

An experienced probate attorney can take on this burden. A law firm or an estate planning attorney can offer legal advice about estate tax and beneficiary designations. They should be able to quickly and easily answer questions, assist in decision-making, and move you efficiently through the process.

Look for a lawyer specializing in wills in the Super Lawyers directory for your estate planning needs.