Dying Without a Will: Intestate Succession Explained

Intestate Definition - When a person dies without a valid will. Intestate Succession Definition - The legal process through which a personIntestate Definition - When a person dies without a valid will. Intestate Succession Definition - The legal process through which a person

Key Takeaways

  • Dying "intestate" means passing away without a valid will.
  • Intestate succession laws dictate how your assets are divided by the state.
  • These default state laws may not reflect your wishes for asset distribution.
  • Intestate succession can lead to family conflict and costly probate processes.
  • Creating a will is the best way to ensure your loved ones are cared for, and your final wishes are honored.

What Does Intestate Mean?

The term "intestate" refers to the situation where a person passes away without a valid will. When this happens, no legal document outlines how the deceased person wanted their assets and property to be distributed.

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What Does Intestate Succession Mean?

Intestate succession is the legal process through which a deceased person's estate is distributed when they die without a will or if their will does not fully dispose of their estate. This process is governed by the specific state intestacy laws where the deceased lived or where the property is located. These laws provide a default scheme for distributing the deceased's assets, typically favoring close relatives.

The rules of intestate succession aim to reflect how an average person might have intended their assets to be distributed among their family members. However, since these laws apply a one-size-fits-all approach, they might not always align with the deceased's wishes or the dynamics of their family relationships.

It's important to have a well-prepared will to ensure that one's estate is distributed according to their specific desires and to potentially avoid the intestate succession process altogether.

How Does Intestate Succession Work?

The specifics may vary significantly from one state to another, but the general probate process and principles share common elements across most regions. Here's a broad overview of how intestate succession typically works:

1. Determination of Heirs

The first step is identifying the deceased person's legal heirs according to the intestate succession laws of the state or country. These laws establish a hierarchy of beneficiaries, such as the spouse, children, parents, siblings, and distant relatives, determining who is entitled to inherit from the estate.

2. Appointment of an Administrator

If there is no will, there is no named executor to manage the estate. Instead, the probate court will appoint an estate administrator (often a close family member) to handle the distribution of assets, payment of debts, and any other administrative duties required to settle the estate.

3. Paying Debts and Taxes

Before distributing assets to heirs, any outstanding debts, estate taxes, and estate administration expenses must be paid with money from the estate assets. This can include funeral expenses, medical bills, and any taxes the estate owes.

4. Distribution of Assets

After debts and taxes are settled, the estate assets are dispersed according to the laws of intestate succession. These laws specify the share of the estate that each heir is entitled to receive. This can involve transferring titles for real estate, distributing funds from bank accounts, and allocating personal property among the heirs.

Variations by Jurisdiction

It's important to note that the specifics of intestate succession laws can vary widely. Some jurisdictions favor spouses more heavily, while others might provide a more equal distribution among children. Additionally, certain property types, like those held in joint tenancy, may bypass the intestate process altogether.

Mitigate this risk by establishing a will today and taking a vital step towards safeguarding your legacy and providing for those who are most important to you. Click to get started with your free will now!4

What Is The Order of Inheritance?

While specific laws vary between states, the general order of succession typically follows this hierarchy:

  • Spouse: The surviving spouse usually inherits a significant portion of the estate. The exact amount may depend on whether there are also surviving children.
  • Children: The deceased person's children generally inherit equal estate shares.
  • Parents: If no spouse or children exist, the estate may go to the deceased's parents.
  • Siblings: If there is no surviving spouse, children, or parents, siblings might inherit.
  • Extended Family: More distant relatives like grandparents, aunts, uncles, etc., may inherit if there are no closer surviving family members.
  • Escheat to the State: If no heirs can be located, the state may ultimately take ownership of the assets.

What Assets are Subject to Intestate Laws?

Assets subject to intestate laws would have been distributed according to a person's will if they had one. Still, without a will, these assets are distributed according to the intestate succession laws. These typically include:

  • Solely Owned Real Property: Real estate, such as houses or land owned solely by the deceased, falls under intestate laws. The distribution of these assets is subject to state laws governing intestate succession.
  • Personal Property: This includes items like vehicles, furniture, jewelry, and other personal belongings and family heirlooms owned solely by the deceased.
  • Bank Accounts: Solely owned bank accounts without a designated beneficiary or not set up as payable-on-death (POD) accounts can be subject to intestate distribution.
  • Investments: Stocks, bonds, brokerage accounts, and other investment accounts solely in the name of the deceased and without a designated transfer-on-death (TOD) beneficiary.
  • Business Interests: Sole proprietorships or shares in closely held corporations or partnerships that were solely owned by the deceased may be distributed under intestate laws.
  • Intangible Personal Property includes intellectual property rights, royalties, and other financial interests owned solely by the deceased.

Exemptions and Special Considerations

Certain types of assets typically bypass the intestate process and go directly to named beneficiaries or co-owners. These include:

  • Life Insurance Policies: Proceeds go directly to the named beneficiaries and are not subject to intestate laws unless the estate is designated as the beneficiary.
  • Retirement Accounts: Retirement accounts such as 401(k)s and IRAs pass directly to named beneficiaries.
  • Jointly Owned Property: Property owned in joint tenancy or tenancy by the entirety usually passes directly to the surviving owner(s) without being subject to intestate succession laws.
  • Trust Assets: Assets held in a living trust are distributed according to the terms of the trust, not under intestate laws.

Understanding which assets are subject to intestate laws is crucial for estate planning. The proper designation of beneficiaries and the use of trusts or joint ownership can ensure that certain assets are distributed according to an individual's wishes, potentially avoiding the intestate succession process for those assets.

Pros: What Are the Advantages of Intestate Succession?

Intestate succession laws, while often seen as a last resort for distributing a deceased person's estate in the absence of a will, do have several advantages that provide a safety net for the distribution of assets.

Here are some of the key benefits:

Legal Framework for Asset Distribution

Intestate succession laws offer a standardized method for distributing assets, providing a predictable outcome for heirs based on familial relationships. This can be especially helpful when the deceased did not leave a will, as it ensures a clear, legal pathway for asset distribution.

Protection of Immediate Family Members

These laws typically prioritize spouses and children, ensuring they are cared for and receive a portion of the estate. This can offer a measure of financial stability for the deceased's immediate family, who might have been financially dependent on them.

Simplification in the Absence of a Will

For smaller estates or in cases where the deceased's wishes were not documented, intestate succession can simplify the legal proceedings by applying a set formula for distribution, potentially reducing the need for lengthy and complicated probate processes.

Minimization of Disputes

By following a legally mandated order of inheritance, intestate succession can sometimes minimize disputes among family members over who should inherit what. The clear hierarchy of heirs according to the law can act as an impartial standard that reduces personal biases or perceptions of favoritism.

Inclusion of a Broader Family Circle

In cases where a person dies without a spouse or children, intestate laws ensure that other close relatives, such as siblings, parents, or even more distant relatives, can inherit. This system ensures that the estate benefits the deceased's family, even extending beyond the immediate nuclear family.

Guardianship Provisions for Minor Children

Although not directly related to the distribution of assets, intestate succession laws also include provisions for the guardianship of minor children. If both parents are deceased, the court will appoint a guardian based on the best interest of the children, considering the laws of intestate succession to ensure they are cared for by close family members if possible.

Cons: What Are the Drawbacks of Intestate Succession?

While intestate succession laws provide a necessary framework for distributing a deceased person's assets in the absence of a will, there are several drawbacks to relying on these statutory provisions. Here are some of the main disadvantages:

Lack of Personal Control Over Estate Distribution

Intestate succession laws apply a one-size-fits-all approach, meaning the distribution of assets is based on generic legal formulas rather than personal relationships or the deceased's wishes. This can lead to outcomes that might not align with what the deceased would have wanted for their estate and beneficiaries.

Potential for Unintended Heirs to Inherit

The rigid hierarchy of heirs under intestate succession might result in assets being passed to relatives the deceased was not close to or did not intend to benefit, potentially excluding more distant relatives or non-relative beneficiaries the deceased would have preferred to include.

Exclusion of Non-Traditional Family Structures

Intestate laws are generally designed around traditional family hierarchies. They may not adequately provide for the complexities of modern family arrangements, such as unmarried partners, stepchildren, or close friends, who might be considered family by the deceased but are not recognized under intestate succession laws.

Increased Legal and Court Costs

The process of settling an estate through intestate succession can be more complicated and time-consuming than if a will had directed the distribution of assets. This can result in higher legal fees and court costs, diminishing the estate's value for the heirs.

Prolonged Probate Process

Without a will to guide the distribution of assets, the probate process can be significantly lengthened as the court determines the appropriate heirs and their respective shares under the law. This delay can place a financial and emotional strain on families waiting for the estate to be settled.

Increased Potential for Family Conflict

The absence of a will can lead to disputes among family members over who should inherit certain assets, especially in cases with a blended family, where relationships are strained, or the legal hierarchy of heirs does not reflect the deceased's actual wishes. This can lead to litigation, further draining estate resources and potentially causing long-term family rifts.

Complications in Guardianship for Minor Children

If the deceased has minor children, intestate succession laws may not reflect the deceased's preference for their children's guardianship, leading to court interventions that may not align with what the deceased would have considered the best interest of their children.

Don't leave your legacy to chance, it is always advisable to consult with an experienced estate planning attorney to ensure your will is legally sound, enforceable, and tailored to your specific circumstances and wishes.

Frequently Asked Questions

What is the difference between testate vs intestate?

  • Testate means dying with a valid will in place. This will outlines your preferences for the distribution of your assets and possessions.
  • Intestate means dying without a will. In this case, state laws (intestate succession statutes) dictate how your estate will be divided among surviving family members.

The critical difference lies in control over estate distribution: testate allows for personal wishes to be followed as outlined in the will, while intestate relies on generic legal formulas to determine heirs and asset allocation.

What is the difference between intestate vs will?

  • Intestate refers to dying without having a valid will. In this situation, your state's intestate succession laws will determine how your assets are distributed.
  • A will is a legal document outlining your wishes for how your property and assets should be divided after your death.

The presence of a will enables an individual to state their wishes regarding their estate explicitly. It ensures that their assets are distributed according to personal preferences rather than default legal statutes.


Dying intestate surrenders control of your assets to state laws, potentially resulting in unintended consequences and family disputes through intestate succession. Mitigate this risk by establishing a will today and taking a vital step towards safeguarding your legacy and providing for those who are most important to you.  Click to get started with your free will now!4


  1. Intestate. Cornell Law School - Legal Information Institute. https://www.law.cornell.edu/wex/intestate
  2. Intestate Succession. Cornell Law School - Legal Information Institute. https://www.law.cornell.edu/wex/intestate_succession
  3. Intestate Succession Laws by State - FindLaw. https://www.findlaw.com/estate/planning-an-estate/intestate-succession-laws-by-state.html
  4. Free Will from Fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies. https://www.westernsouthern.com/about/family-of-companies.

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