What is intestacy?

The legal term for dying without a will.



Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in estate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.

Updated November 24, 2020|4 min read

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Intestacy is the legal term for dying without a valid will. When someone dies without a will, a probate court will determine who receives their property and assets, according to the state intestacy rules. The surviving spouse and the decedent’s lineal descendants, like children and grandchildren, typically inherit the estate, though they may need to share it. More distant relatives may not inherit anything unless closer relatives are deceased.

To avoid dying intestate, you should write a will as part of your estate plan to ensure that the proper beneficiaries receive their rightful inheritance. It is also possible for someone to leave behind an estate in partial intestacy, such as when they create a trust without transferring all of their assets into it.

Key Takeaways

  • A person who dies without a will has died intestate or in intestacy

  • When someone dies intestate, the surviving spouse typically inherits at least some of the decedent’s estate, but laws vary by state

  • Intestate succession sets a hierarchy of the decedent’s heirs to determine who may inherit

  • You can avoid intestacy by creating a will that names your preferred beneficiaries

Who inherits under intestacy law?

When you die intestate, who inherits your property depends on who survives you and your state law, which has its own unique rules of intestacy. A surviving spouse will most likely inherit at least some of your assets, but they are not always entitled to the entire estate. Direct descendants, like children or grandchildren may also be entitled to their own share of the inheritance, so the spouse must share the estate with them. This includes your children from another marriage.

How much the surviving spouse and children receive depends on the state. For example, according to New Jersey probate law, the spouse would inherit everything; according to probate law in Washington state, the spouse would receive half of the estate; and under New York probate law, the surviving spouse would receive the first $50,000 of the estate plus half of the remaining estate.

Check out this guide to wills and probate by state to see how intestacy law works where you live.

Under intestate laws, an adopted child is treated the same as a biological child, while stepchildren usually only inherit if the decedent (deceased person) legally adopted them. A registered domestic partner may not be granted the same inheritance rights as a spouse, so they may not get anything if you don’t have a valid will. Ask an estate attorney for more information on your state’s intestacy law.

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Intestate succession

State law provides further guidance as to who inherits in a hierarchy known as intestate succession. Intestate succession organizes the decedent's next of kin into different tiers or classes to determine who has a greater claim to an inheritance. Generally, surviving descendants that are more closely related have a greater claim to the decedent's property than more distant relatives.

Here is an example of the order of intestate succession:

  • Surviving spouse

  • Children or their lineal descendants (grandchildren, great-grandchildren, etc.)

  • Parents

  • Descendants of the decedent’s parents, like siblings, nieces, and nephews

  • Grandparents, or their lineal descendants, like aunts, uncles, and cousins

So if you died intestate and were not survived by a spouse, then your children would inherit. If there are no surviving children, your parents would inherit. If there is no surviving parent, then siblings would inherit, and so on down the line.

Read more a what happens when you die in different life scenarios.

Community property states

Intestacy laws and intestate succession hold true whether you live in a community property or common law state. The only difference is that community property states have an additional intestacy statute that says who inherits the community property (which passes differently than separate property). For example, in California, the surviving spouse inherits the decedent's share of community property, but under Texas intestacy law, the community property passes to both the surviving spouse and children.

See if you live in a community property state.

Probate and intestate estates

Probate is the process of proving a will and administering the estate. If you die without a will, the collection of all of your property and belongings are known as the "intestate estate." Typically after someone dies, the validity of their will must be proven in probate court, but if someone dies intestate, the probate process can be used to determine the deceased's rightful heirs.

To get probate started, someone must petition the court (fill out a form) to act as personal representative or administrator of the estate. (A personal representative performs the same duties as an executor named in a will.) The decedent’s surviving spouse or adult child tends to have priority to be personal representative, but a non-related person may also qualify if they get written consent from surviving family members.

Read more about an executor vs administrator and what their duties are.

What assets become part of the intestate estate?

Not all assets will be subject to probate (called probate assets). Assets with a beneficiary designation are distributed directly to the named beneficiary; the probate court doesn't need to determine who gets them even through intestacy proceedings. Nonprobate assets include trust property, a life insurance policy, payable-on-death accounts, and jointly owned assets that become the surviving owner's sole property.

Learn about testate vs intestate.

How to avoid intestacy

Administering an intestate estate can be a lengthy process — it might take years before an heir can 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 your beneficiaries and assets. You can also avoid issues by naming contingent beneficiaries in case something happens to your primary beneficiaries. Avoid having a court determine your heirs and create a will using the attorney-approved tools with Policygenius.