What Happens if You Die Without a Will?
Understanding how your estate is distributed without your guidance
on November 30, 2022
Updated on January 29, 2023
Dying without a will means that you have very limited input in how your property is distributed when you die or how your loved ones are financially provided for.
Your estate is made up of all the assets you own, including:
- Real estate (your house, land, etc.)
- Personal property (such as cars, clothing, accessories, art, books, etc.)
- Bank accounts
- Retirement accounts (such as IRAs and 401(k)s)
- Life insurance policies
- Digital assets
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
Read this article to learn about how to make a valid will.
If you die without a 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.
“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 Missouri estate litigation lawyer Robert Will.
In other words, “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 (e.g., parents, brothers, sisters, aunts, uncles, etc.),” says Will.
The people to whom intestacy laws distribute assets could be “people whom you have 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.
This article will cover the basics of intestacy, and other ways that property can be distributed without a will. The upshot is that it is important to create a will to ensure your wishes are fulfilled.
The Order of Intestate Succession
The order of intestate succession varies from state to state.
Generally, however, 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.
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:
- Through probate according to your will or your state’s intestate succession laws
- Directly to beneficiaries named on accounts
When a beneficiary is named on an account, that account will be directly paid out or transferred to the beneficiary when you die.
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
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. Joint tenants 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.
Questions for an Estate Planning Attorney
Most estate planning lawyers provide free consultations for potential clients. This allows you to get legal advice about your estate and determine if getting a lawyer is right for you.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What legal services do you offer?
- How do I ensure that my property is distributed the way I want?
- How do I make a will?
- Should I consider other estate planning documents, such as a living trust?
- How do I name beneficiaries on my accounts?
- How can my estate avoid probate?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer specializing in wills in the Super Lawyers directory for your estate planning needs.