What Happens if You Die Without a Will?

Dying without a will means that you have very limited input into how your property is distributed when you die or how your loved ones are financially provided for.  

A last will and testament (“will” for short) is a key estate planning document that:  

• Makes your final wishes known  
• Distributes your estate assets to named beneficiaries  
• Appoints a guardian for minor children  
• Appoints an executor or personal representative who will file your will with the local probate court when you die, guide your will through the probate process, and ensure your estate’s interests are protected  

Your estate is made up of all the assets you own, including:  

• Real estate
• Personal property
• Bank accounts   
• Life insurance policies  
• Digital assets  
• Retirement accounts (such as IRAs and 401(k)s)  

Without a legally enforceable will that says how to distribute your assets, you are legally considered “intestate.” When someone dies intestate, their state’s intestate succession laws kick in and determine how assets will be distributed.  

For legal help creating your will and overall estate plan, reach out to an experienced wills attorney.

How Does Intestacy Work?

“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 are not married, to collateral relatives such as parents, brothers, sisters, aunts, uncles, etc.”

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.  

The Order of Intestate Succession  

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

• 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.  
• Surviving children. This includes biological and adopted children. Stepchildren are generally not included in intestate succession.  
• Equal shares to surviving parents. If only one parent survives your death, it will go entirely to them.  
• 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.  
• Nieces and nephews. If no siblings survive you, the estate will be distributed to your siblings’ children.  
• Cousins. From there, the estate will be distributed to cousins.  

If there are no relatives to distribute assets to, the estate will ultimately “escheat” or revert back to the state.  

Who Is Not Included in Intestate Succession?

As noted above, stepchildren are typically not included in state intestacy laws. Other individuals who are not typically included in intestate succession are:  

• Long-term domestic partners. If you die without a will while in a long-term relationship or cohabitation, intestacy laws generally don’t pass property to your partner. Your partner would only be able to take their separate property.   
• Non-family members. If you have a close friend or loved one who isn’t a family relation, they won’t benefit through intestate succession. If you want to leave something to a friend, you need to include that in a will.  

Where Does Your Money Go When You Die?   

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.   

Payable-on-Death Accounts

When funds are paid out to a named beneficiary, the account is called a payable-on-death (POD) account. PODs include:  

• Bank accounts  
• Life insurance policies  
• Retirement plans  

Transfer-on-Death Accounts

When ownership of an account is transferred to a named beneficiary, it’s called a transfer-on-death (TOD) account. TODs include:  

• Stocks and bonds  
• Brokerage accounts  

Naming a beneficiary on your financial accounts is easy to do, and since the account is directly paid or transferred to the beneficiary, it avoids probate.  This means that your beneficiaries can receive the money in your account more quickly, without having to wait for the probate process to complete.  

What Happens to a House When You Die Without a Will?   

Your house, or other real estate subject to a property deed, can avoid probate, whether through a will or intestacy.  Check your deed to see what type of ownership is involved:   

• Joint tenancy with right of survivorship. Joint tenants own a piece of property together. They may be a married couple, siblings, or any group of people. With the right of survivorship, when one joint tenant passes away, the property automatically passes to the surviving owner or owners.  
• Tenancy by the entirety. This legal arrangement is like joint tenancy but is specifically for married couples. The couple owns the property together. When one spouse dies, the property passes to the surviving spouse automatically.  
• Tenants in common. “This legal arrangement provides for multiple individuals to own specific percentage shares of a given property.  There is no automatic distribution of an individual owner’s share upon death.  Rather, that ownership share would pass to the individual’s heirs by will or intestacy laws,” says Will. 

For help figuring out what type of ownership arrangement is in your deed, consult a lawyer in your area.  

Find an Experienced Estate Planning Attorney  

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