What happens if you die without a will?
If you die without a will, your state’s intestacy law decides who inherits your property, and a court picks who settles your estate. Spouses and children usually come first, but the shares vary by state, and unmarried partners and stepchildren are usually left out.
Key facts
- Dying without a will is called dying “intestate.” State law then decides who inherits your probate property, in fixed shares.
- A surviving spouse usually inherits everything or a large share, but often less if you had children from another relationship.
- Unmarried partners, friends and charities inherit nothing, and stepchildren usually inherit only if you adopted them.
- A court appoints an administrator, usually a spouse or close relative, who may have to post a bond.
- Property with a named beneficiary, a co-owner with survivorship rights or held in a trust passes outside these rules.
What dying intestate means
Dying intestate means dying without a valid will, and it is common: a 2025 Caring.com survey found that only 24% of US adults have a will. When it happens, your state’s intestacy law works as a default will. It decides who inherits your probate property and in what shares, whatever you would have wanted. The estate still goes through probate, and the court chooses the person who manages it.
What passes outside the intestacy rules
Intestacy rules only reach property in your name alone at death. These assets go to the people named on them, will or no will:
- retirement accounts and life insurance with a living named beneficiary;
- bank and investment accounts with a payable-on-death or transfer-on-death beneficiary;
- property owned jointly with right of survivorship;
- property held in a living trust;
- a home with a recorded transfer-on-death deed, in states that allow one.
For some families, that covers almost everything. Check the beneficiary on every account; see how to avoid probate.
Who inherits: the usual order
The details differ by state, but most follow the same order, based on the Uniform Probate Code:
- Your surviving spouse, alone or sharing with your children or parents.
- Your descendants: children, with the children of a child who died before you taking that child’s share.
- Your parents.
- Your brothers and sisters, and their descendants.
- Your grandparents and their descendants: aunts, uncles and cousins, often split between your father’s side and your mother’s side.
- In some states, the descendants of a deceased spouse, such as stepchildren, before the property would go to the state.
- The state, if no eligible relative survives. This is called escheat.
How much a surviving spouse gets
Under the Uniform Probate Code model, which many states follow with their own dollar amounts, a surviving spouse receives:
| Who else survives | Spouse’s share |
|---|---|
| No descendants and no parents | Everything |
| Descendants who are all also the spouse’s, and the spouse has no other descendants | Everything |
| No descendants, but a parent | The first $300,000, plus three-quarters of the rest |
| Descendants who are all also the spouse’s, but the spouse has children from another relationship | The first $225,000, plus half of the rest |
| One or more of your descendants are not the spouse’s | The first $150,000, plus half of the rest |
States that use this model often change the amounts; Hawaii and Maine are examples. Community property states, such as California and Texas, have separate rules for property the couple acquired during the marriage.
Five states compared
| State | Spouse and children | Spouse, no children | No spouse |
|---|---|---|---|
| California | Community property: all to the spouse. Separate property: half to the spouse if there is one child, a third if there are two or more; the children share the rest | Community property: all to the spouse. Separate property: half to the spouse if a parent, sibling or sibling’s descendant survives, otherwise all | Children, then parents, then siblings and their descendants, then grandparents and their descendants |
| Texas | Community property: all to the spouse if every child is also the spouse’s; otherwise your half goes to your children. Separate property: the spouse gets a third of personal property and a life interest in a third of real estate; the children get the rest | Community property: all to the spouse. Separate property: the spouse gets all personal property and half the real estate; the other half goes to parents, siblings and siblings’ descendants, or to the spouse if none of them survive | Children, then parents, sharing with siblings if only one parent survives, then siblings and their descendants, then grandparents and their descendants |
| Florida | All to the spouse if every child is also the spouse’s and the spouse has no other children; otherwise half. Special rules apply to the family home | All to the spouse, even if parents are alive | Children, then parents, then siblings and their descendants, then grandparents, then aunts, uncles and their descendants |
| New York | $50,000 plus half of the rest to the spouse; the children share the balance | All to the spouse, even if parents are alive | Children, then parents, then siblings and their descendants, then grandparents and their descendants |
| Pennsylvania | If every child is also the spouse’s, $30,000 plus half of the rest; if not, half | All to the spouse if no parent survives; otherwise $30,000 plus half of the rest | Children, then parents, then siblings and their descendants, then grandparents, then aunts, uncles and their children and grandchildren |
In Florida, if a spouse and children survive, the spouse can live in the family home for life, or choose a half share of it instead. In Texas and California, what counts as community property, and what counts as separate property, makes a large difference, so blended families there are among those most affected by intestacy.
Who is left out
- Unmarried partners, however long you lived together. Exceptions are narrow: a few states, such as California and Oregon, treat registered domestic partners like spouses, and Hawaii gives reciprocal beneficiaries a spouse’s share.
- Stepchildren, unless you adopted them. California makes an exception when the relationship began while the child was a minor, lasted for life, and there is clear and convincing evidence the stepparent would have adopted the child but for a legal barrier. Some states also let a deceased spouse’s children inherit before property would go to the state.
- Friends, caregivers and charities, however close.
- Your own wishes. The house, family heirlooms and a business are divided by formula, which can leave several heirs owning one property together and push them to sell.
Who settles the estate
With no will, there is no executor. The probate court appoints an administrator from a priority list in state law. In California, the list starts with the surviving spouse or registered domestic partner, then children, grandchildren, other descendants, parents and siblings. New York’s starts with the spouse, then children, grandchildren, parents and siblings. Family members often agree among themselves who will ask to serve.
Administrators usually have to post a bond, a kind of insurance that protects the heirs if the estate is mishandled; a will could have waived it. In California, all the beneficiaries can waive the bond in writing, though the court can still require one. New York courts can dispense with it or reduce it in some cases, such as when everyone interested in the estate consents. The administrator’s job is the same as an executor’s; see executor duties.
What happens to minor children
If you have minor children and their other parent is alive and able to care for them, that parent usually keeps custody. If not, a judge chooses a guardian without knowing whom you would have picked. Money a minor inherits may also need a court-supervised guardian or conservator until the child comes of age, 18 in most states, at which point the child receives it outright. A will lets you name the guardian, and a will or a trust lets you choose who manages the money and until what age.
Three examples
Married with two children, New York
Sam dies with $450,000 in his own name and no will. His wife receives $50,000 plus half of the remaining $400,000: $250,000 in all. Their two children share $200,000. A will could have left everything to his wife.
Blended family, California
Lee is married to Kim and has one adult child from an earlier marriage. Kim receives all their community property, but Lee’s separate property, such as a house Lee owned before the marriage, is split: half to Kim, half to Lee’s child.
Unmarried couple
Dana and Alex lived together for 15 years but never married or registered as partners. Dana dies owning the home alone. Alex inherits nothing; the home goes to Dana’s children or, if there are none, to Dana’s parents or siblings.
How to avoid it
- Make a will. Online wills cost $0 to $399, and an attorney often charges about $1,000. See online services compared.
- Name beneficiaries on every retirement account, life insurance policy and bank account that allows it, and name backups.
- Consider a living trust if you own a home, have property in more than one state or want to control when children inherit. See will vs living trust.
- Add a durable power of attorney so someone can act for you if you are incapacitated. See power of attorney.
Don’t leave it to state law
Six questions show whether a will or a living trust fits your family, and what to do next.
Take the quizFAQ
Does the state take everything if I die without a will?
Rarely. The state receives property only if no relative the law recognizes survives, and most states reach at least as far as cousins. In practice, most estates go to family.
Does my spouse automatically get everything?
Not always. In many states the spouse shares with your children, especially children from another relationship, or with your parents if you had no children. In New York, a spouse with children receives $50,000 plus half of the rest.
Can an unmarried partner inherit without a will?
Generally no. Unless your state treats a registered partnership like a marriage, as California does for registered domestic partners, a partner inherits only through a will, a trust, a beneficiary designation or joint ownership.
Do stepchildren inherit if there is no will?
Generally no, unless you adopted them. A few states make limited exceptions, but a will or a trust is the only reliable way to include stepchildren.
Does an estate without a will still go through probate?
Yes, for property in the person’s name alone. If the estate is small enough, a simplified procedure may apply; see small estate affidavits.
Can heirs agree to split things differently?
Sometimes. An heir can formally disclaim a share, which then passes as if that heir had died first, and some states allow heirs to agree on a different division. Disclaimers have strict rules and deadlines, so talk to a probate attorney first.
Sources
- Nolo: How an estate is settled if there’s no will
- Uniform Probate Code as enacted in Montana: Montana Code §72-2-112 (spouse’s share), §72-2-113 (other heirs) and §72-2-115 (no taker)
- Maine Revised Statutes 18-C §2-102 and §2-103
- Hawaii Revised Statutes §560:2-102
- California Probate Code §6401, §6402, §6454 (stepchildren), §8461 (priority for appointment), §8481 (bond waiver) and §282 (disclaimers)
- California Family Code §297.5 and Oregon ORS 106.340 (registered domestic partners)
- California Courts: Guardianship of the estate (form GC-206-INFO)
- Texas Estates Code §201.001, §201.002 and §201.003
- Florida Statutes §732.102, §732.103 and §732.401 (homestead)
- New York Estates, Powers and Trusts Law §4-1.1, Surrogate’s Court Procedure Act §1001 and §805
- Pennsylvania Consolidated Statutes, Title 20 §2102 and §2103
- Cornell Law School: Age of majority
- Caring.com: Wills and estate planning study (2025)
OakTrust.com provides general information, not legal advice. Intestacy rules are set by each state, change over time and have exceptions this page does not cover. For advice on an estate, talk to an attorney licensed in the state where the person lived.