What you need to know about intestate inheritance

In the absence of a will, how an estate is divided varies based on a number of factors. Learn what might happen to your property if you fail to leave a will for your heirs.

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by Edward A. Haman, Esq.
updated March 14, 2023 ·  3min read

The legal term intestate succession refers to who inherits property when a person dies without a will. Whether you don't have a will, are considering making a will, or are a relative of someone who doesn't have a will, you should understand the basics of intestate law.

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Related terminology

Understanding a few legal terms is necessary to any discussion of the distribution of property upon death:

  • Decedent: a person who dies and leaves property to be distributed.
  • Heir: a person who inherits property from a decedent, according to either a will or the state's intestate law.
  • Intestate: not having a valid will. The phrase “dying intestate" means dying without a valid will.
  • Testate: having a valid will.
  • Probate: the legal process of distributing a decedent's estate.
  • Probate court: a court that has jurisdiction over decedents' estates. In a few states, this is a division of the circuit, superior, or common pleas court. In other states, it is called by another name, such as surrogate's court or orphan's court.
  • Probate estate: the property of a decedent that must go through the probate process. Property that is jointly owned or has a designated beneficiary may not need to go through probate and is not part of the probate estate. For example, real estate owned jointly with survivorship rights passes directly to the surviving joint owner. A financial account with a designated pay-on-death beneficiary goes directly to the beneficiary. Similarly, the proceeds of a life insurance policy go directly to any named beneficiaries.

Probate law and intestate succession

When a person dies, the probate law of her state governs how her property is distributed. Although probate law varies from state to state, there are some general concepts that apply everywhere. With or without a will, the estate must usually go through probate.

A valid will determines how the decedent's estate property is distributed. If the decedent did not have a valid will, the state probate law of intestate succession determines the distribution of property. The law of intestate succession may be viewed as the will the state legislature writes for you if you don't write your own will.

Probate laws outline an order of succession based upon the relationship of the heir to the decedent. Generally, the order is: spouse, children, parents, siblings, and children of siblings. If there are no living heirs in one category, the property goes to the next category. If there are no living heirs at all, the property goes to the state.

Of course, as with just about anything to do with the law, it's not quite that simple, especially when it comes to spouses, children, grandchildren, and further descendants.

Spouses and descendants

In most states, if the decedent leaves only a spouse and no children, the spouse inherits all of the intestate property. A few states provide for less if the decedent has surviving parents or siblings.

If there are children, most states provide for the surviving spouse to receive either one-third or one-half of the estate, with the remainder going to the children. Some states provide for a minimum dollar amount for the spouse plus a share of the balance. For example, in Hawaii, the spouse is entitled to the first $100,000 plus one-half of the rest of the estate. Some states provide less for the spouse. For example, in Rhode Island the surviving spouse is only entitled to the use of the real property during his lifetime. Laws may also differ in community property states.

When a child of the decedent has died, inheritance is typically handled depending on the following conditions:

  • The deceased child does not have any children or grandchildren. In this case, the deceased child's share of the estate usually goes to the surviving siblings.
  • The deceased child has children. In this case, the deceased child's share goes to his children. To extend this principle further, the share of any deceased child, grandchild, etc., passes to that person's descendants. However, this distribution process varies from state to state.

If a person dies without any surviving spouse or descendants, the state's probate law of intestate succession determines how the estate is divided among the surviving relatives.

Your best bet for making sure your estate is distributed according to your wishes is to make a will. An online service provider can help with your estate planning needs.

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Edward A. Haman, Esq.

About the Author

Edward A. Haman, Esq.

Edward A. Haman is a freelance writer, who is the author of numerous self-help legal books. He has practiced law in Hawa… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.