What Happens If You Die Without a Will?

When you die without a will, your state’s intestacy laws will determine who inherits your property that a will could have named. Some of your assets may transfer outside the intestacy laws, and your designated beneficiary will inherit. These assets are called non-probate assets.

State intestacy laws vary. Each state has intestacy laws determining the dispersal of property of a person who dies without a will. However, family members, such as your surviving children, grandchildren, great grandchildren, surviving spouse, surviving parent, and nieces and nephews, would likely inherit your property. If no heirs are found, the state could inherit your property.

Creating a will does not need to be complicated. You should seek the advice of an estate planning attorney or law firm to learn what happen when you die without a will, and how your state’s laws would transfer your property if you die without a will. You can use our will template to create your own simple will or download it and discuss any questions with your lawyer.  

Intestacy – Who Inherits If Someone Dies Without a Will?

If a person dies without a will, the laws of the state they reside in will determine what happens to their probate assets. While intestacy laws vary by state, most provide that family members inherit your property.

Children, surviving spouses, surviving parents, siblings, or nieces and nephews will likely inherit the property of a person who dies without a will. Of course, some property is non probate assets and will transfer outside these laws. For instance, life insurance policies require you to designate a beneficiary to receive the proceeds upon death. However, if you select your estate as your beneficiary of these assets, your state’s intestacy laws would still determine who inherits those assets.

You must know how your state’s intestacy laws transfer your property upon death. While the legal system tries to distribute your estate equally when you die, you will likely want to make your specific wishes known. You would be wise to seek the guidance of an estate planning or succession attorney near you to learn about your state’s intestacy laws and to decide whether you need to create your own will.

How Dying Without a Will Affects Your Loved Ones

If you die without a will, your loved ones will not know your wishes for your assets. Dying without a will could lead to confusion, disagreement, and even legal disputes. Consider the following issues and how they would affect your loved ones should you die without a will:

  • Who will administer your estate? You can name an executor to administer your estate through a last will and testament. An executor is in charge of paying your estate taxes and debts and then making sure your property goes to the persons you have designated in your will. 
  • Who will inherit your personal belongings after death without a will? A will names your heirs and sets forth what and how much you want each heir to receive. Do you want your spouse to accept everything or to share your estate with others? Do you want your children to receive equal shares of your property? Or do you have a child with special needs or other considerations for whom you wish to receive more? Do you want to provide for stepchildren or other relatives of a deceased spouse? You can decide on all these issues rather than the state, so you provide for your loved ones in the way you choose. 
  • Do you want to leave a gift to a favorite charity? Your loved ones may know that you supported a charity during your lifetime but not agree to make a gift to that charity after your death. You can easily designate your wishes for any nonprofit organization through your will.
  • Whom do you want to care for any minor or dependent children? You may want to make your wishes known about a guardian for your little or dependent children. If your desires are not known, family members may disagree over who should step up and act as a guardian.
  • What will happen to your pets if you are dead without a will? You can make provisions for caring for your pets after you die through a last will and testament.

Your loved ones must be protected when you die. Upon your death, you probably don’t want your loved ones to have to ask, “if someone dies without a will what happens then?” Without a will, your loved ones can get unresolved questions and great sorrow. It is quite simple to make your wishes known by creating a simple will.

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

If you die without a will and are married, your state’s intestacy laws will determine what your surviving spouse receives from your estate. If you live in a common law state, any property purchased during your marriage you own equally with your spouse.

Upon your death, your spouse automatically owns one-half of that property. But what about your half? Depending on your state, your children may inherit the other half and a usufruct (use of the property) given to your surviving spouse. In some separate property states, you may own property as a joint tenant with your spouse, and different laws apply.

You and your spouse must discuss how the laws of your state will treat your property when either of you dies. You should seek the counsel of an experienced succession or estate planning attorney in your state to understand a surviving spouse’s rights and decide whether you want to make a will.

What Happens If You Die Without a Will and You Are in a Domestic Partnership or in a Common Law Marriage?

Domestic partnerships and common law marriages are not recognized in every state. Only a few states have established protective inheritance laws for those in a common law marriage or domestic partnership. States recognizing common law marriages and domestic partnerships provide varying inheritance rights.

Some of your property may transfer outside of the laws of intestacy. Any property that you and your partner own as joint tenants with survivorship rights will automatically pass to the surviving tenant. You may also designate your partner as a beneficiary of some of your property without creating a will. For example, insurance policies, retirement accounts, and some financial accounts require that you designate your beneficiary and pass outside intestacy laws.

It is vital that you know and understand how your state’s intestate succession law affects the inheritance rights of you and your partner and what happens if you die without a will. You should seek the advice of an experienced estate planning attorney in your state to know how your state’s intestacy laws impact you and your domestic partner and to consider whether you need to create an estate plan.

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

Your state’s intestacy laws will determine what happens to your estate if you die without a will and are single. If you are single, you will not need to worry about providing for a surviving spouse; however, there may be others you want to leave part or all of your assets. If you have minor or dependent children, they will inherit under your state’s intestacy laws.

If you are single and do not have children, other family members, such as siblings, parents, nieces, and nephews, will inherit your estate, if you die without a will. So, if you would rather have your assets inherited by a friend, charity, or your favorite family member, you should create a will.

Who Takes Care of Your Kids If You Die Without a Will?

If you have dependent children and die without a will, the surviving parent will most likely take care of them. However, if you are separated or divorced from the other parent, or if the other parent has died, you may wish to designate a guardian for your dependent children through your will or other legal documents.

Having dependent children is likely the most critical reason for consulting a succession attorney and creating a will.

What are the steps for probate if you die without a will?

When you have a last will and testament, your executor will handle the task of filing your will with the probate court and going through the necessary steps to have your property transferred to your designated heirs. However, if you do not have a will that appoints an executor, your property will generally be transferred by taking the following steps:

  1. Your spouse or other family members will need to file a petition with the court to have your probate estate opened.
  2. The court will appoint an administrator of your estate to handle the probate steps.
  3. The estate administrator will file an affidavit stating your residency and listing your heirs. Many states require a death certificate as well.
  4. The estate administrator will need to identify all your assets and liabilities and file a list of them and the value of each asset.
  5. The administrator must gather your assets and pay all outstanding debts and taxes.
  6. The administrator will file a petition to transfer the assets of your estate according to the intestacy laws of your state.
  7. If any heir challenges the probate proceeding, the court will set a hearing or trial to determine any disputes.
  8. Once the court has signed the final petition transferring your assets, your administrator will deliver those assets to each heir.
  9. The administrator will then usually file a petition to close the probate estate and ask to be dismissed as the administrator.

The steps of a probate proceeding will vary by state, and each case may have different needs and measures. Except in very small successions, the administrator will most likely need the representation of a probate attorney to handle the probate process.

Conclusions

Each state has intestacy laws that control what happens when someone dies without a will. Most people want to decide how their assets get dispersed when they die. Therefore, it is vitally important that you understand how your state’s intestacy laws will transfer your assets upon death. If you have dependent children, are married, or are in a domestic partnership, it is even more critical to seek the advice of an estate planning attorney in your state to create a last will and testament to help protect your loved ones.

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Legal Writer at Lawrina. Yevheniia browses through the most interesting and relevant news in the legal and legaltech world and collects them on Lawrina’s blog. Also, Yevheniia composes various how-to guides on legaltech, plus writes product articles and release notes for Loio, AI-powered contract review and drafting software.

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