Who inherits your assets depends on who survives you and what you leave behind.
When you die without a will, the court will determine your legal heirs
How much a surviving spouse or child receives varies by state
The executor of an intestate estate is called a personal administrator
Dying without a will complicates things for everyone involved. A last will and testament is meant to pass along your property and possessions upon your death but without one, your loved ones won’t know what should happen to your things. Who actually ends up inheriting your stuff depends on state laws (intestate law in particular), the types of assets you have and who you leave behind (who survives you).
If you’re married, your surviving spouse will likely inherit some if not all of the assets, but your children and parents may also inherit something. Even if the court ends up choosing the heirs you had wanted, they may have to deal with an elongated court process, which can delay how long it takes for the assets to transfer to them. We’ll discuss what happens when you die without a will and who inherits in different scenarios.
The legal term for dying without a will is intestacy. Each state has its own intestate law, based on your next of kin (who survives you). The court uses intestate laws to determine the heirs of the decedent (deceased person) and how much they should receive. When there is no next-of-kin to inherit, the deceased’s assets are rerouted back to the state.
You can check out how intestate succession law works in our state-by-state guide to wills.
See: Five celebrities who died without a will, and what happened to their estates
Certain types of property — assets with a beneficiary designation — should never be included in your will, since they can be transferred to people outside of probate.
As long as you designate a beneficiary, the following assets can still pass onto their designated beneficiaries if you die without a will:
Failing to complete a proper beneficiary designation and dying without a will means these assets will be distributed according to intestate law. You may also want to designate a secondary beneficiary in case your primary beneficiary is unavailable.
If you’re unmarried and die without a will, then your heirs are likely to be your parents. If there is no surviving parent, then a sibling may inherit something in their stead. A boyfriend or girlfriend will not inherit anything unless you are married.
In most cases, your surviving spouse will be entitled to at least some portion of your assets when you die without a will. They could inherit the entire estate, or may even have to split it with the deceased person's parents and/or any children. It all depends on the state. More on children later.
In community property states, any assets acquired after marriage are community property; everything else is separate property (owned by the individual spouses). Intestate laws dictate what happens to community property and separate property when one spouse dies without a will — usually the surviving spouse receives most, if not all, of the community property, and at least some of the separate property.
If you’re in a domestic partnership, whether or not your partner inherits anything when you die without a will depends on the state. Even when a registered domestic partner is entitled to certain rights, like health benefits, under state law, they may not have the right to inherit since they are technically not next of kin. Talk to an estate attorney if you have more questions.
State laws may set aside a portion of the deceased’s estate for their descendants (children and grandchildren). This includes a child with someone other than a surviving spouse, such as from a previous marriage. A stepchild is not considered an heir, unless you have legally adopted them — adopted children are typically treated the same as biological children under the law.
If you want to leave an inheritance for a stepchild, then you should definitely write a will because they don’t have a right to heirship under law. If you have a more complex blended family, you may even benefit from opening some type of trust tailored to your needs.
You can make a will using attorney-approved wills by downloading the Policygeniius app.
You can use a will to name a guardian for a minor child. If you don’t and there is no surviving spouse, the court will appoint one. Minor children who inherit may not be able to take full possession of an asset until they reach the age of the majority.
Probate is the process of proving a will. The executor of the estate typically brings the will to court, files a petition to open a probate case if necessary, and eventually distributes the assets to beneficiaries. The executor is appointed in a will, so if you die without one, someone will have to take on these responsibilities. Usually certain people, like a surviving spouse or child will have priority to act as personal administrator — what the executor is called when someone dies without a will. They will file a petition for probate as necessary, just like an executor would do when there is a will. In some cases, when the deceased leaves very few assets, the personal administrator may be able to transfer them by using a small estate affidavit, or another simplified probate procedure, instead of opening a formal probate case. (These procedures are often available regardless of whether someone died without a will.)
Read more about what the administrator or executor of an estate does.
Recession-proof your money. Get the free ebook.
Get the all-new ebook from Easy Money by Policygenius: 50 money moves to make in a recession.
Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.
Was this article helpful?