Intestacy: What happens if you die without a will

Create an estate plan so state laws don’t determine your heirs.

Elissa

Elissa Suh

Published July 25, 2019

KEY TAKEAWAYS

  • Intestacy is the state of dying without a valid will

  • The deceased is said to have “died intestate” or “died in intestacy”

  • Each state has their own intestate laws that determine who inherits

If you die and you don’t leave a will behind, then the court will deem you to have died in intestacy. This might also happen if the will you wrote was invalid, or all of your beneficiaries predeceased you. When there is no valid will, the probate court will determine who inherits your assets — they will likely be distributed according to state laws of intestate succession.

In this article:

Dying without a will

A will is a legal document that dictates how your assets are to be distributed to your chosen beneficiaries. You can name specific valuables to pass onto your heirs when you die and appoint an executor to manage and settle your affairs.

Intestacy is the state of dying without a valid will. If you die without a will in place, you have died intestate. All of your property and belongings now become part of the estate. Usually a will directs the probate process, but in this case the local court will decide how the estate is distributed and appoint an executor called a personal administrator to help do this.

What assets become part of your estate?

Not all assets become part of the probate estate. Assets with a beneficiary designation are non-probatable, meaning the probate court doesn’t get to determine the heirs. A life insurance policy or payable-on-death (POD) account like an IRA, with a named beneficiary, will pay out outside of probate.

Assets that are jointly owned (joint tenancy) become the surviving owner’s sole property. For example, if you purchased a home with a civil partner, and both of your names are on the deed, the house would automatically pass on to the partner without needing to go through probate.

Read more about how to plan out your estate and take a look at the estate planning checklist.

Intestacy law: Who inherits?

If you live in a community property state, then your spouse will essentially inherit everything. In these states, if you want to choose a beneficiary other than your spouse, then a will stating this is imperative. Even then, the property must be owned with your spouse as tenants in common, or else he or she may have rights to survivorship.

If you’re not married or don’t live in a community property state, your heirs will be determined based on laws of intestacy. Each state has their own intestate laws regarding who can inherit your assets if you die without a valid will.

There is an order to the potential lawful heirs called intestate succession, by which relatives are categorized into different groups. Generally, closer family members are more entitled to the property than more distant blood relatives. For example, a surviving spouse and child might have greater claim to the assets than brothers and sisters, who may have greater claim over aunts, uncles, and cousins. Check the intestate succession laws in your area for more detail.

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How to avoid intestacy

Distributing an intestate estate can be a lengthy process — it might take years before any of the intestate heirs receive a share of the inheritance from a large and complicated estate. The easiest way to avoid intestacy is to write a will that clearly stipulates who gets what. An estate planning attorney can help you create a valid will that holds up in court and won’t be contested by potential heirs. You can also create a trust, a separate entity, that passes the assets to its own beneficiaries.