What Happens to an Estate With No Will: Intestate Succession

Key takeaways

• When someone dies without a will, state intestate succession laws determine which relatives inherit and how much each one gets.
• Spouses, domestic partners, and blood relatives are generally in line to inherit; unmarried partners, friends, and charities usually get nothing.
• Not sure who counts as a "child," "spouse," or "sibling" once a family gets complicated? Each state defines these terms a little differently.

If you're handling the estate of someone who died without a will, you likely have questions about how everything gets divided up.

• What kinds of property skip both a will and intestate succession
• Who's in charge: how an executor gets chosen
• Who inherits: the basic rules of intestate succession
• Making sense of the key terms in intestate succession
• What happens when an heir has already died
• Arranging care for minor children

What kinds of property skip both a will and intestate succession

Every state has intestate succession laws that hand a deceased person's property to their closest relatives when there's no will.

Before anything else, it helps to know that a good deal of property never passes through a will or through intestate succession at all. This includes things like:

• life insurance proceeds
• real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship
• property held in a living trust
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• funds in a payable-on-death (POD) bank account
• stocks or other securities held in a transfer-on-death (TOD) account, and
• real estate or vehicles held with a transfer-on-death (TOD) deed or transfer-on-death vehicle title.

To learn who inherits most of these assets, track down the paperwork where the beneficiary was named. That document tells you who's entitled to the property. (If the asset was co-owned with survivorship rights, the surviving co-owner now owns it outright.)

For everything else — solely owned property with no named beneficiary, like a house — the answer comes from state law. Every state has intestate succession laws that hand out a deceased person's property to their closest relatives when there's no will. We'll walk through the general rules below.

Who's in charge: how an executor gets chosen

State law lists who is eligible to serve as executor when there's no will. If the estate needs to go through probate, a court will pick someone from that priority list. In most states, a surviving spouse or registered domestic partner comes first, adult children come next, and other relatives follow after that. (If you've just been asked to take on this role, it's worth reading up on whether you should accept the job of executor before you say yes.)

Who inherits: the basic rules of intestate succession

Every state has intestate succession laws that govern what happens to property when a person dies without a valid will and hasn't arranged to pass the property another way, such as through a living trust. As a rule, only spouses, registered domestic partners, and blood relatives inherit under these laws — unmarried partners, friends, and charities are left out. A surviving spouse typically receives the largest portion of the estate, and if there are no children, the spouse often inherits everything. More distant relatives only step in when there's no surviving spouse and no children. In the unusual case where no relatives can be located at all, the property goes to the state.

Example: Under intestate succession, everyone in the same category of heir usually gets an equal share. Say Ron dies with a $5 million estate and five living children — each child would receive $1 million. If one of those five children died before Ron and left no children of their own, the remaining four would split the $5 million evenly. But if that deceased child had children of their own (Ron's grandchildren), those grandchildren would typically step into their parent's place and receive that share instead. (More on this in the section on heirs who have already died.)

Every state also has rules that disqualify certain people from inheriting if they wronged the deceased person. Someone who criminally caused the death, for example, is almost never allowed to profit from it. And in many states, a parent who abandoned a child, failed to support them, or committed certain crimes against them can't inherit from that child. (For more on who can claim a share of an estate, see our guide on inheritance rights.)

To find the specific rules for your state, look up its intestate succession statute.

Making sense of the key terms in intestate succession

Intestate succession statutes rely on terms like "children" and "issue." You might assume you know exactly what "children" means — but check your state's law before you assume anything. The definition isn't always what you'd expect.

Spouse

To inherit under intestate succession law, an heir sometimes has to outlive the deceased person by a set amount of time. Many states require 120 hours, or five days.

To count as a surviving spouse, someone must have been legally married to the deceased person at the time of death. Usually that's straightforward. Sometimes it isn't.

• Legal separation or pending divorce. If the couple had separated, or if a divorce was already underway, a judge may need to decide whether the survivor still qualifies as a surviving spouse.
• Common-law marriage. A handful of states recognize common-law marriage, where a couple who never had a formal ceremony can still be considered legally married under certain conditions. Generally, the couple must live together, intend to be married, and present themselves publicly as a married couple. Check whether your state recognizes common-law marriage and, if so, what it requires.
• Same-sex couples. After years of uncertainty, the Supreme Court's 2015 decision in Obergefell v. Hodges made same-sex marriage legal nationwide. Married same-sex spouses now have the same rights as any other legally married couple, including the inheritance rights tied to being a surviving spouse. Couples in registered domestic partnerships or civil unions, rather than marriages, may not have all of those same rights, depending on the state — though some states automatically converted those partnerships into marriages. Whether you qualify as a surviving spouse depends on the legal status of your relationship and your state's law, so if you're unsure, talk to an attorney familiar with this area.

Children and issue

"Children" can mean different things depending on who's asking — and depending on the law. Many states use the term "issue" instead, meaning all direct descendants of the deceased person: children, grandchildren, and beyond.

• Adopted children. In every state, absent a will or other estate plan, legally adopted children inherit from their adoptive parents exactly as biological children would.
• Stepchildren. Most states don't count stepchildren — children of a spouse who were never legally adopted by the deceased person — as "children" for inheritance purposes. A few states may look at the specifics of the relationship.
• Foster children. Foster children generally don't inherit as "children" of their foster parents.
• Children adopted by an unrelated family. In most states, adoption legally severs the tie between a child and their birth parents. The child can no longer inherit from the birth parents under intestate succession law, and the birth parents can no longer inherit from the child.
• Children adopted by a stepparent. A child adopted by a stepparent may still be able to inherit from a biological parent, depending on state law.
• Children born after a parent's death. A child conceived before a parent died but born afterward — sometimes called a "posthumous" child — generally inherits under intestate succession law the same as a child born during the parent's lifetime.
• Children conceived through artificial insemination. Whether a child conceived using a deceased parent's genetic material, and born after that parent's death, can inherit varies by state.
• Children born outside marriage. A child always inherits from their birth mother, unless an unrelated family later adopted the child. When parents were never married, the child usually needs some form of proof to inherit from the father.

Brothers, sisters, and siblings

When an intestate succession law names a deceased person's "brothers and sisters" or "siblings" as heirs, that group usually includes half-siblings, and in some cases even half-siblings who were adopted out of the family.

What happens when an heir has already died

An heir who has died obviously can't inherit. But the children of that heir — say, a deceased child of the person who died — may be entitled to some or all of what their parent would have received. Sorting this out can get complicated, but it needs to happen before any assets are distributed.

Survivorship requirements

To inherit under intestate succession law, an heir sometimes has to outlive the deceased person by a set stretch of time. Many states set that period at 120 hours, or five days. In other states, an heir only needs to survive by any measurable amount of time — technically, even a single second would count.

Many states follow the Uniform Simultaneous Death Act. Under this law, if two or more people die within 120 hours of each other, each is treated as having died first, unless a will or other document says otherwise.

Rights of a deceased heir's descendants

Intestacy laws often let a deceased heir's children step into their parent's place and inherit that parent's share. This is known as the "right of representation": children, or in some cases grandchildren, take the spot their deceased parent or grandparent would have held. Working out exactly who inherits under this rule can get complicated and depends heavily on state law.

Arranging care for minor children

Parents with young children who write a will typically name a personal guardian for them. Without a will, how does a court decide who that should be? The judge gathers as much information as possible about the children, their family situation, and what the deceased parents likely wanted, then makes the best call possible. The one rule that always applies is that the judge must act in the children's best interests.