What Happens If You Die Without a Will?

Updated July 25, 2023

7 min read

Who Inherits Everything If Someone Dies Without a Will?

How Dying Without a Will Affects Your Loved Ones

Title "What Happens If You Die Without a Will?", stamp, paper titled "Last Will", scales, headstone

Introduction

When individuals die without a will, challenging circumstances can arise. In these situations, intestacy laws of the relevant state come into play, determining the distribution of their property. Non-probate assets, however, bypass these laws and transfer directly to the designated beneficiaries.

Intestacy laws differ across states. Typically, if someone dies without a will, close family members — surviving children, grandchildren, great-grandchildren, surviving spouses, or surviving parents — are the primary recipients of the deceased’s property. In the absence of easily traceable heirs, the state usually receives the assets.

Drafting a will may seem daunting, but it's actually a straightforward process. An estate planning attorney can offer helpful advice about what happens when you die without a will and how that impacts property distribution. To help facilitate the process, will creation templates are available for reference.

Who Inherits Everything If Someone Dies Without a Will?

When a person dies without a will in the United States, they've died "intestate", and each state's laws of intestacy allocate what happens to the person’s probate assets. These laws differ from state to state, and it is crucial to become familiar with your own state's rules if you are considering your estate distribution in the event you die without a will.

Generally, intestacy laws promise property to the deceased's closest family members if they die without a will. The order usually includes the surviving spouse first, then children, parents, and then further extended family members like siblings, nieces, and nephews.

However, this can vary significantly based on specific state laws. For instance, in some states, if you die without a will and have children but no spouse, the children will inherit everything. Conversely, if you have a spouse but no children, the spouse typically inherits everything. In situations where you die without a will and have both a spouse and children, most states' rules dictate that both the spouse and children share the estate, though the percentage division may differ. If you die without a will and have no immediate family, the state may look further to grandparents, aunts and uncles, cousins, or even your local county's schools or municipalities.

Apart from these probate assets, certain types of properties known as non-probate assets aren't governed by intestacy laws. They pass directly to the designated beneficiaries. Examples of non-probate assets include jointly held property, payable-on-death bank accounts, retirement accounts like 401(k) and IRAs, life insurance policies, and property held in a living trust. The recipient of these assets, such as the surviving co-owner or the named beneficiary, receives these properties directly when you die without a will.

Understanding one's estate planning and how your state's specific intestacy laws operate could affect you if you die without a will is critical. Although the legal system attempts to ensure a just distribution of someone's assets who died without a will, a consultation with an experienced attorney can provide a more personalized approach to estate planning that better aligns with your specific wishes and the needs of your loved ones.

How Dying Without a Will Affects Your Loved Ones

When one dies without a will, it sends ripples of impact through surviving loved ones. The path to navigating the complex web of estate administration and property distribution can be infested with confusion, misunderstandings, and occasionally, even legal disputes. Such uncertainties often compound the burden of grief for those who are already grappling with the loss of a loved one who has died without a will.

Several specific concerns can arise when someone dies without a will.

Who will administer the estate? Typically, the court appoints an administrator. However, this will be a person chosen by the court, not necessarily someone the deceased would have chosen.
Who will inherit personal belongings and assets? Without a will to guide property distribution, state laws have to step in to determine the heirs, which might not align with the deceased's wishes.
In instances where someone dies without a will, how can the deceased's preferences for their assets, minor children's guardianship, and even the caretaking responsibility for their pets be communicated and respected? Regrettably, without a will, such personal desires often remain unfulfilled.

Die without a will, and you leave numerous vital decisions up to the state laws and courts. However, by drafting a will, these concerns can be preemptively tackled, bringing clarity to the process, guiding the distribution of your assets according to your wishes, and significantly reducing the distress and potential disputes among your loved ones.

A bonus advantage lies in the use of pre-formulated will templates. Deploying these can provide you with a comprehensive and legally sound framework to construct your will. Utilizing templates ensures you cover all crucial areas, reducing the risk of unintentional oversights. Importantly, it demystifies the process and makes drafting a will a far less daunting task even when confronting the unsettling possibility of what might happen if you die without a will.

In conclusion, using a will template doesn't substitute the personal advice of a legal professional, but it offers a strong starting point around which you can plan your estate and navigate the intricate aspects of the law. Numerous templates can also simplify such planning. Ultimately, it's a beneficial tool to avoid the complications that arise when one dies without a will. By drafting a will, these potential issues can be addressed proactively, minimizing conflicts and distress among loved ones.

Conclusion

If you die without a will, the state intestacy laws determine how your assets are dispersed. Each state implements intestacy laws differently; thus, understanding your state's specific regulations is crucial for effective estate planning. The process is particularly essential for those who are married or have dependent children. Consulting with an estate planning attorney can provide considerable direction in these matters, and a range of templates provides a practical resource for those planning their estate.

Frequently Asked Questions

What happens if you die without a will and you are married?

When you die without a will and are married, your state’s intestacy laws dictate your surviving spouse's share in your estate. If you reside in a common law state and die without a will, property purchased during your marriage is considered equally owned by you and your spouse.

Upon your death, your spouse inherently owns half of that property. However, what happens to your share? Your children might inherit the other half, depending on your state, and a usufruct (use of the property) might be assigned to your surviving spouse. In separate property states, you and your spouse might jointly own property, invoking different laws if you die without a will.

It's paramount to do your research or consult a legal expert to comprehend how your state laws will treat your property if you die without a will.

What happens if you die without a will and you are in a domestic partnership or in a common-law marriage?

Not all states recognize domestic partnerships or common law marriages, and if you die without a will, your inheritance rights vary. A handful of states have established laws that protect inheritance rights in a common-law marriage or domestic partnership when one partner dies without a will.

However, some of your property may not fall under the jurisdiction of intestacy laws. For example, if you own property jointly with rights of survivorship, it will pass directly to the surviving partner if you die without a will.

A consultation with an estate planning attorney can shed light on how your state’s intestacy laws may affect you and your partner if you die without a will.

What happens if you die without a will and you are single?

Your state's intestacy laws dictate the fate of your estate if you die without a will. When you are single and die without a will, you don't need to consider provisions for a surviving spouse. However, other individuals you would want to leave your assets to will follow your state’s inheritance laws, especially if you have minor or dependent children.

Suppose you're single and childless and die without a will; other family members like siblings, parents, and nieces and nephews may inherit your estate by default. To ensure assets are allocated according to your wishes, consider drafting 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 other surviving parent usually becomes the caregiver. Should the other parent also be deceased, or if you're divorced or separated, it's best to designate a guardian through legal documents, such as a will.

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

If you have an executor assigned to your will, they will handle the probate proceedings. If you die without a will, the probate process involves several key steps:

Your spouse or other family members need to petition the court to open your probate estate.
The court will appoint an administrator to manage the probate steps.
The estate administrator files an affidavit stating your residency and listing your heirs, typically with a death certificate.
The administrator takes stock of your assets and liabilities and pays outstanding debts and taxes.
The administrator files a petition to transfer your estate assets according to the state’s intestacy laws.
If an heir challenges the probate proceedings, the court will schedule a hearing or trial to resolve disputes.
Once the court approves the final petition to transfer your assets, the administrator distributes them to each heir.
The administrator then usually files a petition to close the probate estate and to be dismissed as an administrator.

A probate attorney may represent the administrator in most successions, excluding very small ones.

What is an affidavit of survivorship form?

An affidavit of survivorship is a sworn legal document by the surviving owner of jointly owned property, stating they possess survivorship rights. The statements on the form itself are brief and contain only the decedent’s details and the affiant’s joint ownership of the property, as well as an affirmation. If you need to create an affidavit of survivorship, you can use the affidavit of survivorship template to simplify the process.

The right of survivorship activates automatically upon the death of one owner. However, a court might require an affidavit of survivorship, especially when records of ownership are unclear or absent. In cases where an affidavit of survivorship is necessary, using a template to create this document can simplify the process.