Intestate Succession: What Happens When You Die Without a Will

What happens if you lack a will?

Intestate is the legal term for dying without a valid will. This can happen in two ways: you never created a will, or you had a will that was later invalidated during the probate process.

For a will to be enforced, it must meet these requirements:

• Mental capacity. Created while you have a sound mind
• Free will. Signed voluntarily, with no one forcing you
• Proper witnessing. Signed in front of witnesses (who are not beneficiaries) who can attest you were able to make a will

If your will doesn’t meet all of these requirements, the probate court can invalidate it, and intestate succession will be used instead.

What property isn't affected by intestacy?

When you’re considering whether or not you need a will, keep in mind that there is a variety of property that passes without a will and without any intestacy proceedings. This includes:

• Assets in a living trust
• Real estate owned as joint tenants, tenants by the entirety, or community property with right of survivorship
• Life insurance benefits with beneficiaries
• IRAs, 401(k)s, or retirement funds with beneficiaries
• Stocks or bank accounts owned in a payable on death account
• Real estate or vehicles held as payable on death

Who inherits what when a person dies intestate?

When a person dies intestate, each state has set procedures dictating how property passes to relatives. In most states, distribution depends on your family situation:

• Spouse, no children. Your spouse or domestic partner receives all of your property
• Spouse and one child. Assets are split between your spouse and child
• Spouse and multiple children. One-third goes to your spouse, the rest to your children

Who counts as a child under intestacy laws?

For intestacy purposes, a "child" includes only legal children—born to you or adopted by you. If you have a biological child who was given up for adoption or for whom your parental rights were terminated, that child can't inherit through intestacy (though you can leave assets to them in a will). Stepchildren don’t inherit via intestacy laws.

What are the rules for half-blood vs. whole-blood relatives?

With blended families becoming increasingly common, many people wonder how intestate succession treats half-siblings and other half-blood relatives—those who share only one parent with the deceased. The good news is that most modern states treat half-blood and whole-blood relatives equally, giving them identical inheritance rights.

For example, if you die with no spouse or children, and you have one full sibling and one half-sibling, most states would divide your estate equally between them. However, a small number of states still follow older rules that give half-blood relatives a reduced share—sometimes half of what whole-blood relatives receive. Check your state's specific laws to understand how half-blood relatives are treated in your jurisdiction.

What are per stirpes and per capita distribution?

When an heir dies before you do, states use specific distribution methods to determine how that person's share passes to their descendants. The two primary methods are per stirpes and per capita.

Per stirpes (Latin for "by branch" or "by representation") means that a deceased heir's share passes down to their descendants. For example, if you have three children and one dies before you, leaving two grandchildren, under per stirpes those two grandchildren would split their parent's one-third share (receiving one-sixth each), while your two surviving children would each receive one-third.

Per capita (Latin for "by head") divides the estate equally among all living descendants at the same generation level. Using the same example, a strict per capita approach might divide the estate equally among all living descendants. 

Most states use per stirpes or a modified version of it, but the specific rules vary. Understanding which method your state uses helps clarify how your grandchildren and other descendants would inherit if their parent predeceases you.

If you do not leave behind a spouse or children, state laws generally leave your assets to your other relatives in this order of priority:

• Your grandchildren
• Your parents
• Your siblings; if they are deceased, then your nieces and nephews
• Your grandparents; if they are deceased, then to your aunts and uncles
• Relatives of your deceased spouse

What happens if no relatives are found—or an heir dies first?

If no relatives can be found, the estate goes to the state through a legal process called escheat. Escheat makes the state the "heir of last resort" when no eligible family members exist to inherit. This outcome is relatively rare because intestacy laws cast a wide net, reaching out to distant relatives like great-aunts, second cousins, and beyond. Before claiming property through escheat, states typically conduct thorough searches for potential heirs and may hold the property for a period during which relatives can still come forward to claim it.

If someone who would inherit from you has already died, that person's heirs typically inherit in their place. For example, if your brother predeceases you, his children would split his share.

How do state-specific intestate succession laws vary?

While the general principles of intestate succession are similar across the country, the specific rules vary significantly from state to state. These differences can substantially affect how much your spouse, children, and other relatives inherit.

What’s the difference between community property and common law states?

Difference between community property states and common law states include: 

• Community property states. In the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), property acquired during marriage is generally owned equally by both spouses. When one spouse dies intestate, the surviving spouse typically keeps their half of community property automatically, and only the deceased spouse's half passes through intestate succession. 
• Common law states. In common law states, the surviving spouse's share is determined entirely by the state's intestacy statute.

How do spousal shares work with children in intestacy?

The percentage that surviving spouses receive also varies widely. Some states give the surviving spouse the entire estate if there are no children, while others divide the estate between the spouse and the deceased's parents. When children are involved, spousal shares can range from one-third to one-half depending on the state and how many children survive.

How does the Uniform Probate Code shape intestacy?

Many states have adopted all or part of the Uniform Probate Code (UPC), which provides a standardized approach to intestate succession. However, even UPC states often modify the default rules, so you should always consult your specific state's laws. 

What is the intestate probate process? 

When someone dies without a will, their estate still goes through probate court—but the process works differently than it would with a valid will. Understanding these steps can help family members know what to expect.

Step 1: Petition and appoint administrator

First, someone (usually a close family member) must petition the court to open an intestate estate. The court will appoint an administrator to manage the estate. This differs from a testate estate, where the will names an executor. If multiple family members want to serve as administrator, the court will choose based on state priority rules, which typically favor surviving spouses, then adult children, then other close relatives.

Step 2: Manage and distribute assets

Once appointed, the administrator must inventory all assets, notify creditors, pay outstanding debts and taxes, and eventually distribute the remaining assets to heirs. The court determines who qualifies as an heir based on the state's intestacy laws. This determination can add time and complexity to the process, especially if family relationships are unclear or disputed.

What are the key differences and bypasses in intestate probate?

Intestate probate often takes longer and costs more than probate with a valid will. Without a will naming beneficiaries and an executor, the court must make these determinations, which requires additional hearings and documentation. The same non-probate assets that bypass intestacy (like life insurance with named beneficiaries and jointly held property) also bypass the intestate probate process entirely, transferring directly to the designated recipients.

FAQs about intestate succession

Who doesn't inherit under intestate succession laws?

Intestate succession laws pass assets only to legal and blood relatives—excluding longtime friends, stepchildren (unless legally adopted), and charities.

Can someone be disqualified from inheriting under intestacy rules?

Yes, people who would normally inherit under intestacy rules can be barred if they have committed a crime against the deceased or abandoned or abused a child who is now deceased that they would normally inherit from.

What happens to my minor children if I die without a will?

If you die and leave behind a minor child who has no other parent or legal guardian, the court will select a guardian based on what is in the best interest of the child. This is one of the most compelling reasons to create a will, which allows you to choose a guardian rather than leaving this critical decision to the court.

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Brette Sember, J.D., contributed to this article.