When there is no will, and how the state decides

After · 8 min read

When someone dies without a valid will, their state's intestacy statute supplies one. It is not a punishment and it is not chaos: it is a default order of inheritance, written in advance, that gives priority to a surviving spouse and children, then to parents, then to siblings and more distant relatives. Someone still must be appointed by the court to administer the estate, and that person is called an administrator rather than an executor. The shares differ significantly from state to state, so the only reliable answer to who inherits is the one in your own state's statute.

Why it exists

Intestacy exists because property cannot sit ownerless. Rather than leave each case to be argued, legislatures wrote a standing rule that approximates what most people would have chosen: the immediate family first, in a fixed order, with more distant relatives taking only when nearer ones are gone. Cornell's Legal Information Institute describes it as a specific order of priority, with spouses and children given precedence, followed by parents and siblings.

The rule also has an end point. Where no relative within the statutory range survives, the property escheats to the state. That outcome is rare, and it is the reason the search for heirs is taken seriously by courts even when the estate is modest.

It is worth saying plainly, because families often carry this as a private grievance: the absence of a will is common, and it usually means the person ran out of time rather than that they intended to exclude anyone. The statute is doing the job the document did not.

How it actually works

Someone petitions the probate court to be appointed administrator. Eligibility and priority are set by statute and usually run from the surviving spouse outward through adult children and other close relatives. Once appointed, the administrator's duties are substantially the same as an executor's: gather assets, notify creditors, pay debts and taxes, then distribute. The difference is that the distribution follows the statute rather than a document.

The statute reaches only probate property. Anything with a named beneficiary or a survivorship feature still passes outside the estate. A retirement account naming a former spouse still pays the former spouse. Joint property with right of survivorship still goes to the survivor. Intestacy does not correct old beneficiary designations, and this surprises families more than any other point in this module.

The shares themselves vary widely, and this is where national summaries do genuine harm. Cornell's Legal Information Institute states that the rules of intestate succession vary widely from state to state and change over time. The Uniform Probate Code offers one standardised scheme, and Cornell counts nineteen states as having enacted the code in whole or in part, but even among those, local amendments are common. A spouse may take everything, or a fixed sum plus a fraction, or a share alongside children from an earlier relationship. Read the statute for the state where the person lived.

Adopted children generally inherit as biological children do. Stepchildren generally do not inherit unless adopted. Unmarried partners generally do not inherit under intestacy at all, however long the relationship lasted. Each of those statements has state-level exceptions, which is why they belong in a lawyer's hands when the estate turns on them.

Where you stand

If you are the surviving spouse, you hold protections that do not depend on any document. Most separate property states give a surviving spouse an elective share, sometimes called a forced share or the right of election, which allows you to claim a statutory fraction of the estate instead of what a will left you. The traditional fraction is one third, and the Uniform Probate Code uses a more elaborate calculation. Community property states approach the same problem differently, through ownership rather than election. Which framework applies to you depends entirely on your state.

Many states also provide a homestead allowance, a family allowance and exempt property to a surviving spouse and minor children, payable ahead of most creditors. These are modest amounts, and they exist so that a family is not left without shelter or cash while an estate is administered. Ask the court clerk or a legal aid office whether your state provides them and how they are claimed, because they are frequently missed.

If you are an unmarried partner, the honest position is that intestacy is unlikely to help you, whatever the length or nature of the relationship. Your claim, if you have one, is more likely to rest on jointly titled property, a beneficiary designation, or a contract. That is a question for a lawyer in your state, early rather than late.

Everyone with a potential interest is entitled to notice of the proceeding and may object to the appointment of an administrator or to the proposed distribution. Silence is treated as consent in many procedures, so if you believe the heirs have been listed incorrectly, say so in writing to the court within the period the notice states.

What to do

The mistakes that cost people

Assuming a long unmarried partnership carries inheritance rights. In most states it does not, and the time to establish what does apply is the first month, not the sixth.
Relying on a national article for the spousal share. The fractions differ by state, and the version involving children from an earlier relationship differs again.
Overlooking the elective share deadline. It is a right that expires, often within months of the appointment of a representative, and courts rarely extend it.
Treating an old beneficiary designation as overridden by the family's understanding of what the person wanted. The custodian pays the name on the form.

Words you will meet

intestate: Having died without a valid will, so that state law decides who inherits.
administrator: The person a court appoints to manage an estate when there is no will or no executor able to serve.
elective share: A surviving spouse's right to claim a fixed fraction of the estate instead of what a will provided.
escheat: The transfer of property to the state when no relative entitled to inherit can be found.
heir: A person entitled to inherit under the intestacy statute, as distinct from a beneficiary named in a document.
family allowance: A modest sum many states allow a surviving spouse and minor children to draw from the estate during administration, ahead of most creditors.

What this does not cover

This module does not cover contesting a will that does exist, guardianship of a surviving minor child, or how community property states divide marital assets at death. Each needs separate treatment and, in most cases, state-specific legal advice.

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