Handling an Estate Without a Will

What does "dying without a will" mean?

Dying without a valid will is called dying "intestate." It means the deceased left no legally binding instructions for who should receive their assets or who should manage their estate.

The court steps in and applies the state's intestate succession laws, which follow a fixed formula based on family relationships.

This does not mean the government takes everything. The estate still goes to family members in most cases. But the distribution follows state law, not the deceased's wishes, and the results are often different from what the person would have chosen.

A partial will (one that covers some assets but not others) results in "partial intestacy." The covered assets follow the will. Everything else follows intestate law.

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Who manages the estate?

When there is a will, the person named as executor manages the estate. Without a will, the court appoints an administrator (sometimes called a personal representative) to do the same job. The administrator has the same basic duties as an executor: inventorying assets, paying debts and taxes, and distributing what remains to the heirs.

How the court chooses

State law sets a priority order for who can serve as administrator. The general order in most states:

1. Surviving spouse or registered domestic partner
2. Adult children
3. Parents
4. Siblings
5. More distant relatives (grandchildren, grandparents, aunts, uncles)
6. Creditors of the estate (in some states, as a last resort)

If the person with highest priority does not want the role, they can decline and the court moves to the next person on the list. If no one is willing or available, the court may appoint a public administrator, a position that exists in most counties for exactly this situation.

Getting appointed

To become the administrator, you file a petition with the probate court in the county where the deceased lived. You will need a certified death certificate and, in most states, written consent or formal waivers from other people who have equal or higher priority.

The court holds a hearing, and if approved, issues Letters of Administration, the legal document that gives you authority to act on behalf of the estate.

Most courts also require the administrator to post a surety bond, which protects the estate in case the administrator mismanages assets (though some states waive this requirement if all heirs consent in writing). The bond premium is paid from estate funds and typically runs a few hundred dollars per year for smaller estates.

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Who inherits?

The surviving spouse and children inherit first. If neither exists, the estate passes to parents, then siblings, then more distant relatives. Every state has its own statutory formula, but the priority order is similar across the country.

The exact shares vary, especially in blended family situations.

Spouse, no children

In most states, the surviving spouse inherits the entire estate. This is the simplest scenario.

Since Obergefell v. Hodges (2015), legally married same-sex couples have the same inheritance rights as any other married couple under both state and federal law.

Spouse and children (all from the same marriage)

The spouse typically receives a large share, with children splitting the remainder. Some states give the spouse everything even when children survive.

Others give the spouse a fixed dollar amount plus a percentage (for example, the first $100,000 plus half of the remaining estate). The children split whatever the spouse does not receive.

Spouse and children from a prior relationship

This is where intestate law gets complicated. When the deceased has children from a previous marriage or relationship, most states reduce the surviving spouse's share. The logic is that the children from the prior relationship need protection, since the surviving spouse has no biological or legal obligation to share with them later.

In practice, this can mean the surviving spouse receives as little as one-third of the estate, with the rest divided among all children. The exact split varies significantly by state.

Children, no spouse

The children inherit everything, divided equally.

If a child died before the deceased but left their own children (the deceased's grandchildren), those grandchildren typically inherit their parent's share. This is called "per stirpes" distribution.

No spouse or children

The estate passes to the deceased's parents. If both parents are deceased, it goes to siblings. If no siblings survive, it passes to nieces and nephews, then grandparents, then aunts and uncles, then more distant cousins.

The chain continues until a living relative is found.

No living relatives

If the court cannot locate any eligible heirs, the estate "escheats" to the state. This is rare. Courts will typically search for heirs for an extended period before declaring escheat.

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Who does not inherit

Intestate succession laws follow strict legal definitions of family. Several categories of people who might seem like obvious heirs receive nothing under these rules, regardless of how close the relationship was or what the deceased may have said they wanted.

• Unmarried partners. No matter how long the relationship lasted, an unmarried partner has no legal right to inherit under intestate law. In a few states (such as California), registered domestic partners have the same inheritance rights as spouses, but unregistered partners do not.
• Stepchildren. Unless the deceased legally adopted them, stepchildren are not heirs under intestate law. A stepparent can raise a child for decades, and that child will still have no inheritance rights without adoption or a will.
• Close friends. Intestate law is strictly family-based. Friends cannot inherit regardless of the relationship.
• In-laws. A son-in-law, daughter-in-law, or other in-law relationship does not create inheritance rights.
• Charities and organizations. Only a will or trust can direct assets to a charity.

For anyone who wants to provide for people outside the legal definition of family, a will is the only option.

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How is this different from probate with a will?

The basic steps of probate are the same whether or not there is a will. The court oversees the process, debts get paid, and assets get distributed. But intestate estates are harder in several specific ways.

It takes longer. Intestate cases typically take 12 to 24 months or more, compared to 6 to 18 months for estates with a will. The additional time comes from proving family relationships, locating potential heirs, and resolving disputes that a will could have prevented.

It costs more. The same court fees apply, but attorney costs and administrator fees tend to be higher because the process requires more legal work. The administrator also needs to post a bond (which a will can waive for an executor), and that bond costs money. Total costs for intestate estates often fall in the range of 5% to 8% of the estate's value.

The court has more oversight. An executor with a will can often act with limited court supervision (called "independent administration" in many states). An administrator without a will typically needs court approval for more actions, including selling property or distributing assets. Each approval adds time and legal fees.

Family disputes are more likely. A will represents the deceased's stated wishes, which courts give significant weight. Without that document, competing claims and disagreements have no anchor, and litigation becomes more likely.

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Community property states

In the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), assets acquired during the marriage are generally owned equally by both spouses regardless of whose name is on the account or title.

When one spouse dies without a will:

• Community property (earned or acquired during the marriage) typically passes entirely to the surviving spouse.
• Separate property (owned before the marriage, or received as a gift or inheritance during the marriage) follows the state's intestate formula. Depending on the state, it may go partly to the spouse and partly to children or other relatives.

The distinction between community and separate property can be difficult to sort out, especially for long marriages where assets were commingled. If the deceased lived in a community property state and had significant assets, getting legal advice on this classification is worth the cost.

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What you can do now

If you are managing an intestate estate, these steps will help you move forward:

1. File for Letters of Administration at the probate court in the county where the deceased lived. Bring a certified death certificate and identification. Note that many states impose a waiting period (commonly 30 to 45 days after the death) before Letters of Administration can be issued.
2. Get multiple certified copies of the Letters of Administration. You will need them for banks, insurance companies, title offices, and government agencies.
3. Determine which assets go through probate and which bypass it. Joint accounts, life insurance, retirement accounts with beneficiaries, and trust assets transfer directly regardless of whether there is a will.
4. Check whether the estate qualifies for a small estate procedure. If the total value of probate assets falls below your state's threshold, you may be able to use an affidavit instead of full probate. See our guide to how probate works for a state-by-state comparison of small estate thresholds.
5. Consult an attorney if the estate includes real property, business interests, or complicated family dynamics (blended families, estranged relatives, potential disputes). Intestate cases are where legal guidance pays for itself most clearly.

For a full breakdown of the probate process, timelines, and costs, see our guide to how probate works.

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