What Happens If You Die Without a Will?

If you die without a will, the legal term for that is "intestate." When this happens, the intestacy law of the state where you reside determines how your property will be distributed. Real estate you own in a different state will be handled under the intestacy laws of the state where the property is located.

Who gets a share of your property? Intestate succession laws define who your heirs will be. Those laws vary from state to state, but in most cases, your property is distributed in shares to family members, which could include a surviving spouse, adult or minor children, adopted children, parents, siblings, aunts and uncles, nieces, nephews, cousins, and distant relatives.

Who does not get a share of your estate? Stepchildren, long time partners, and loved ones who are not family members.

When no relatives can be found, your entire estate typically goes to the state. This includes bank accounts, retirement accounts and IRAs, real estate, and personal property.

Transfer of Property with a Deed

Some property does not get transferred through probate court but is conveyed by way of a property deed. In these instances, all other property of the estate would be divided as described above but the family home or other real estate would be transferred as follows:

Tenancy by the Entirety, or Joint Tenancy with Right of Survivorship: Both spouses own the property equally. When one spouse dies, the other spouse automatically inherits the share of the deceased spouse.

Tenants in Common: Each spouse owns a share of the property. That share may be unequal. If one spouse dies, the surviving spouse retains their share but the other share is divided among the heirs of the decedent.

Transfer of Property with a Named Beneficiary

Some property is conveyed to an heir as a named beneficiary on the document. This is the case with a life insurance policy. The deceased is the insured person and the beneficiary is the person who will receive the life insurance payout.

Retirement assets and bank accounts typically also have named beneficiaries. The asset can be transferred without going through probate. No will is required.

Assets placed in a trust (a living trust or an irrevocable trust, for example) are also not distributed through probate court. A beneficiary named in a trust need not be named in a will.

What Happens if You Die Without a Will and You Are Single?

In many states, intestacy laws award the estate in the following manner:

  • If you are married and childless, then the entire estate is awarded to your spouse.
  • If you are married and have children, then your entire estate is divided among your spouse and children, in equal shares. If any child has died before you, and that child has children, then the deceased child's share will go to your grandchildren.
  • If you are single and have children, then your entire estate is divided among your children, in equal shares. If any child has died before you, and that child has children, then the deceased child's share will go to your grandchildren.
  • If you are single and childless, your estate is awarded to your parents, equally.
  • If one parent has already died, the estate is divided among your surviving parent and siblings (including half-siblings).
  • If you have no surviving parents at the time of death, then your entire estate will be divided among your siblings in equal parts.
  • If there are no surviving parents or siblings, the estate would be divided among the descendants of your siblings (nieces and nephews).
  • If there are no close relatives, then cousins on your mother's side would inherit one-half of the estate, and cousins on your father's side would inherit the other half.

What Happens if You Die Without a Will and You Are Married?

How property is divided upon the death of a spouse without a will depends on several factors: Whether you live in a community property or separate property state, how your assets are titled, and your state's intestacy laws.

In a community property state, your estate will go entirely to your surviving spouse.

In a separate property state, the rules vary depending on the state's intestacy laws. In some separate property states, if you are married and have children with your current spouse, your entire estate will go to your surviving spouse. Otherwise, your surviving spouse could receive up to one-half of the estate, with the remaining portion passing to your surviving children from another partner.

In some separate property states, if you do not have children, your surviving spouse could receive 1/3 to 1/2 of the estate and your parents and siblings could divide the remaining share.

What Happens if You Die Without a Will and You Are in a Domestic Partnership?

Since not all states recognize domestic partners, it's important to check the laws of your particular state to learn how property would be distributed upon your death. In states that recognize domestic partnerships — Connecticut, Hawaii, Nevada, Oregon, Vermont, Washington — a registered domestic partner inherits the same as a married surviving spouse.

For property that is conveyed through a deed, see above.

What Happens if You Die Without a Will and You Are Cohabiting or in a Common Law Marriage?

When someone dies without a will it can be devastating to unmarried couples who are living together. Intestacy laws only recognize relationships by blood, marriage, or adoption. Cohabiting couples typically cannot inherit the property of the other partner without a will that clearly states the decedent's intentions that they inherit. If there is no will, the decedent's property will be divided among relatives based on intestate succession law. The other partner will retain their separate property only.

Property owned by both parties as tenancy by the entirety, or joint tenants with right of survivorship will pass to the surviving partner.

As of 2018, seven states and the District of Columbia acknowledge common law marriage — Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, and Utah. In New Hampshire, common law marriage is recognized only for probate purposes.

A common-law spouse may inherit in a state that recognizes this type of marriage (and possibly in states that recognize the common-law marriage of another state), but the inheriting partner will need to prove the existence of their common-law relationship.

If this applies to your situation, check the laws of the state in which you reside.

Worried About Dying Without a Will? Talk to an Attorney Today

Since estate planning can be quite complicated, it may be wise to speak with a local estate planning attorney. For a simple will or estate plan, see FindLaw's estate planning forms.