What happens if you die without a will? It’s a scary thought for sure! But don’t worry—your stuff won’t automatically get passed on to some random government agency. Instead, there are laws in place (called intestacy laws) that determine, in what order, your family members should inherit your stuff. Generally, surviving spouses and children take whole or half of the estate. But things get trickier when you don’t have kids or a spouse. This is why it is extremely important to have a will in place to override these default intestacy laws and make sure your stuff ends up in the right hands when you die. Let’s get into exactly what happens when you die without a will so you can be armed with the information you need!
What is intestacy?
“Intestacy,” sometimes called “intestate succession,” is the term used by lawyers to describe what happens when you die without a will. It is the automatic state laws that apply to your estate distribution upon your death. If you have a will that covers the entirety of your estate, then intestate laws generally will not apply.
The basics behind intestacy laws are that the state creates an order of inheritance and different rules for what should happen in certain scenarios. For example, who gets your stuff (a spouse, child, etc.), and then what if those people don’t exist or have died? Intestate succession laws provide all of the variables and allow a probate court to distribute assets based on these rules laid out by the state.
Again, it is crucial to point out that intestate succession laws vary by state. So, the distribution of assets in Maine may not be the same as in California or other states.
If you have a spouse and kids: Who gets what?
Generally, most states will either split the estate 50-50 between the surviving spouse and kids or give everything to the spouse (depending on the situation). So, without a will, if you have a spouse and kids, you can rest assured that Uncle John isn’t getting your stuff. However, there still could be a situation where you aren’t comfortable with how the intestacy laws play out.
For example, in Oregon, if there is a surviving spouse and children, and the children are the descendants of both the surviving spouse AND the deceased spouse—everything goes to the surviving spouse. The idea behind this is that the surviving spouse will eventually pass on the assets to the mutual descendant-children. However, if the surviving spouse is not the parent of the deceased person’s children (think: step-mom), then the surviving spouse only gets 50% of the estate, and the kids get the other 50%. (ORS § 112.025).
In contrast, in Massachusetts, if there are children involved, the surviving spouse gets a base amount and then a portion of the rest of the estate, with the percentage depending on whether the children are also the spouses. (Mass. Gen. Laws ch. 190B § 2-102).
As you can see, the difference between how your assets will be distributed among a surviving spouse and children can vary drastically or slightly from state to state.
If you don’t have a spouse and kids: Who gets what?
So, if you don’t have a will or a spouse or children when you die, your state law has an order of inheritance that will apply to the distribution of your assets. Generally, states usually first award to parents, siblings, and grandparents. Sometimes, this order is different depending on the state.
For example, in Illinois, the inheritance order goes to siblings and parents in equal parts, then if no siblings or parents, to grandparents and descendants of grandparents. If none of those exist, then it goes to descendants of great-grandparents. (755 ILCS 5/2-1).
In contrast, in Nevada, the inheritance order without a spouse or kids goes first to the parents, then, if no parents, to the siblings. (Nev. Rev. Stat. § 134.050). This is different from Illinois’ intestate succession laws because the first step is to give parents and siblings equal share vs. everything to the parents, then if no parents, to the siblings, in Nevada.
Remember, folks, every state varies. The following information is based on what some states say, so make sure to check with your state intestacy laws to understand exactly what your state does.
The probate process when you don’t have an estate plan
Another wrench in the intestate succession process is probate. Without a will, probate under intestacy laws can get tricky and take much longer to complete. Think about it: When someone initiates probate after you die and you don’t have a will, the court has to pull in state laws and devise assets according to a certain list. This will also require a court to specifically identify and locate your family members. If you don’t have a spouse or children, locating siblings, parents, grandparents, aunts, or uncles can be difficult and time-consuming. The court will also appoint an administrator to oversee the estate, and the administrator must identify and locate all assets of the estate including bank accounts, investments, real estate, and personal property. As you can imagine, this process costs a lot more (and therefore diminishes your estate), ultimately leaving less money to your heirs.
Other issues with intestate succession
If we haven’t convinced you already, there are more issues that come along with intestate succession. Here’s what to consider:
- Family disputes: Dying intestate can cause family disputes if you don’t explicitly list out how you want your stuff to be distributed. For example, maybe you’re closer to your sister’s kids than you are to your own kids, and you want them to inherit instead of your children. Intestate laws will not follow these wishes unless you get a will. And this can cause familial conflict, even leading to possible litigation. This can cause long-lasting disputes and damage relationships. Also, if someone feels they are unfairly excluded or that the estate is not being handled properly, they may take legal action, resulting in even more additional delays and costs.
- Unintended beneficiaries: Even if you love your second wife more than ever, maybe you really wanted to make sure your children took everything. Well, according to the majority of intestate laws, this will not be the case. Plus, if you have no immediate family, the state may distribute your assets to distant relatives, like cousins or aunts/uncles, even if you intend to leave everything to a close friend or a charity.
- Probate: As we made clear above, probate becomes more difficult when you die intestate. It can take more time and cost more money (legal, court, and administrative fees) to work out your estate without a will. These increased costs ultimately eat into your assets and diminish your estate’s value.
- Unmarried partners: If you have a life partner that you never married, they will not be accounted for through intestate laws. However, if you put a will into place, you can ensure your partner is taken care of.
- No Guidance on minor children: If you have minor children and die without a will, there will be no clear instructions on guardianship or how their inheritance is managed. The court may appoint a guardian that you would have never chosen!
- Lack of privacy: Without a will, the probate process is typically a matter of public record. This means the details of your estate, including assets, debts, and who inherits what, are available for anyone to view. With a will, you can often avoid this public disclosure.
The bottom line on dying without a will
The bottom line is that the state determines who gets your stuff when you die without a will. This may or may not align with your wishes. Either way, dying without a will (intestate) will potentially make the probate process much longer, more expensive, and stressful for your heirs. Having a will in place can ensure your stuff ends up in the right hands and helps speed up the probate process. Ultimately, creating a will can give you the utmost peace of mind knowing that your loved ones are taken care of, even when you’re gone!
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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