If you die without a will, you are “intestate,” and a probate court will apply the intestacy laws of the state where you reside to determine how to distribute your property among your next of kin.
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What is Intestacy?
“Intestate” is the term the law uses when a person dies without making a will, and “next of kin” refers to the people first in line to inherit from your estate as heirs.
Every state applies its own intestate succession laws to determine who your heirs are and how to distribute your assets. In most cases, your property is distributed in shares to family members, which include a surviving spouse, adult or minor children, adopted children, parents, siblings, aunts, uncles, nieces, nephews, cousins, and distant relatives. Stepchildren, long-time partners, and loved ones who are not family members usually won’t get a share of your estate if you die without a valid will. If a state can’t locate your relatives, your entire estate typically passes (“escheats”) to the state.
Be aware that intestacy laws for distributing certain real estate are different. If you own real estate in a state other than the one you reside in, the property is handled under the intestacy laws of the state where the property is located.
To understand everything that happens when you die without a will, you should be familiar with how a probate court treats non-probate and probate assets.
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Not all personal property passes through the probate court when a person dies without a will. Below are some of the common non-probate assets to keep in mind when someone dies intestate.
Transfer of Property With a Deed
Property conveyed with a property deed does not get transferred through probate court. In these instances, all other property of the estate is divided as described above, but the family home or other real estate transfers 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 deceased spouse’s share.
- Tenants in Common: Each spouse owns a share of the property. The shares may be unequal. If one spouse dies, the surviving spouse retains their share, but the other share is divided among the decedent’s heirs.
Transfer of Property With a Named Beneficiary
Certain assets have designated beneficiaries and pass outside the probate court. Here are a few to keep in mind:
- Life Insurance Policy: Most life insurance policies allow you to have named beneficiaries. The deceased is the insured person, and the beneficiary is the person who will receive the life insurance payout.
- Banking Accounts, Retirement Accounts, and IRAs: When you name a beneficiary on a banking or retirement account, the asset is not subject to probate and will pass to the designated individual directly.
- Assets in a Living Trust: Assets in a living trust can transfer to your named beneficiaries immediately after you die and do not need to go through the probate process.
The fate of your assets when you die without a will varies by state. Usually, it depends on the status of your relationships with your surviving spouse, partner, children, and other relatives. The probate court will also appoint a personal representative to administer your estate. Be aware of the following common scenarios if you don’t have a will.
You Die Without a Will, and You Are Not Married
If you are unmarried and die without a will, the intestacy laws of many states distribute the estate as follows:
- If you have children, 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 do not have children, your estate is awarded to your parents equally.
- If one parent has died, the state divides your estate between 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 state divides your estate 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.
- If some cases, if the state can’t find your heirs, then your entire estate escheats to the state.
You Die Without a Will, and You Are Married
The method the court uses to divide property when your spouse dies without a will depends on 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. If you do not have children and live in a separate property state, your surviving spouse could receive 1/3 to 1/2 of the estate, and your parents and siblings could divide the remaining share.
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 your property distributes upon your death. In states that fully recognize domestic partnerships — Connecticut, Hawaii, Nevada, Oregon, Vermont, and Washington — a registered domestic partner inherits the same as a married surviving spouse.
For property conveyed through a deed, see above.
You Die Without a Will, and You Are Cohabiting or in a Common Law Marriage
It can be devastating to unmarried couples living together when someone dies without a will. 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 goes to their 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 the right of survivorship will pass to the surviving partner.
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). Still, the inheriting partner will need to prove their common-law relationship.
As of 2022, seven states and the District of Columbia acknowledge common-law marriage — Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah. Note that Oklahoma and Rhode Island recognize common law marriage by court decisions, not statute. New Hampshire only recognizes common law marriage for probate purposes.
If this applies to your situation, check the laws of the state where you reside.
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