What Happens If You Die Without a Will? by Heleigh Bostwick

What Happens If You Die Without a Will?

Most people are aware that they should have a will, but many people never get around to writing one, leaving the courts to decide who gets—or doesn't get—what.

by Heleigh Bostwick
updated October 05, 2020 · 3 min read

No matter how small your property or assets, whether you're single or married, whether or not you have children or even pets, it's important to have a will that designates what happens to your property after your death.

What is Intestacy?

When you die without a will it is called dying intestate. Although laws pertaining to dying intestate vary by state, distribution of property and assets generally follows a similar pattern. In other words, every state has a "default" plan for the distribution of property in the event that you die without a will.

The laws follow a predefined formula and might not be what you want or expect. This pattern of property distribution depends primarily on whether you are married—domestic partnerships count—or single, and whether you or your spouse or partner has any children.

What Happens if You Are Single?

The least complicated scenarios associated with dying intestate are single without children and single with children.

For example, Jane is single, her parents are still alive, and she has a nephew she adores; she would like to leave him money for his education when she dies. If Jane dies without a will, her property and assets will be distributed to her parents because she is single and has no children or spouse. If her parents were to predecease Jane, her property would go to her siblings—who may or may not pass the money to her nephew for his education.

Even if Jane had expressed to her friends and family that she wanted her money to go to her nephew, it's up to whomever inherits the money to use it for the nephew's education—which may or may not happen.

The only way Jane can ensure that the money is used for her nephew's education is to specify it in her will.

In scenario #2, Ron is single and has two children. If he dies without a will, his estate will be split evenly between his children. Normally this is what a parent prefers, but if Ron wants to leave his daughter more money because she has a family to raise and his son doesn't, he must specify it in his will. Otherwise, the property will be divided equally and Ron's grandchildren may not reap the benefits Ron intended.

What Happens if You're Married?

Dying without a will when you are married or have a domestic partner becomes even more complicated.

If you are married with no children, state laws vary widely on how your estate is distributed. In some states, a surviving spouse can inherit everything. In other states, typically only one-third to one-half of the estate is given to the surviving spouse with the rest going to the deceased's parents.

In the event that the parents are also deceased, the rest is split among the deceased's siblings. Similarly, for those who are married with children, the surviving spouses typically inherits one-third to one-half of the estate with the remainder being divided among the children.


How to Ensure Your Wishes

The only way to ensure your wishes are carried out is to write a will and keep it up-to-date. When major life changes—marriages, divorces, births, deaths, interstate moves—occur, you should review your will and make any necessary changes.

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Heleigh Bostwick

About the Author

Heleigh Bostwick

Heleigh Bostwick has been writing for LegalZoom since 2006, touching on topics as diverse as estate planning and kids, c… Read more