Intestacy is what happens when a person dies without a valid will. The state does not seize the estate, and the money does not go to the government by default. Instead, a state statute called an intestate succession law writes a will for you, distributing your property to your closest surviving relatives in a fixed order, while a probate court appoints someone to administer the estate.
The practical result is that your property still goes to family, but you have no say in which family members, in what shares, or who handles the paperwork. Here is how the system actually works and where states diverge.
What is intestate succession?
Intestate succession is the default inheritance scheme built into every state probate code. It applies when someone dies with no will, with a will the court refuses to admit, or with a will that disposes of only part of the estate (partial intestacy). The statute lists classes of relatives in priority order and sets each class share.
Every state has its own statute. A substantial minority of states have adopted some version of the Uniform Probate Code, which standardizes much of the structure, but even adopting states modify it. The code in the decedent state of domicile is what controls.
Two points people usually get wrong:
- Intestacy has nothing to do with taxes. Having a will or not having one does not change federal estate tax exposure.
- Intestacy does not mean the state takes your money. Escheat to the state happens only when a diligent search for heirs comes up empty.
Who inherits if you die without a will?
The general order is spouse, then descendants, then parents, then siblings, then more distant relatives. The details are where states differ sharply.
Surviving spouse, no descendants. In most states the spouse takes the entire intestate estate.
Surviving spouse plus descendants who are all from that marriage. Many states, following the Uniform Probate Code approach, again give the spouse everything, on the theory that the surviving parent will provide for the children. Other states split the estate, commonly giving the spouse one half or one third and the descendants the remainder.
Surviving spouse plus children from another relationship. This is where the spouse share almost always shrinks. States typically give the spouse a fraction, often one half, and divide the rest among the descendants.
Descendants, no spouse. Children inherit in equal shares. If a child died before you leaving children of their own, those grandchildren usually take the deceased child share. That mechanism is called representation, and states use different versions of it (per stirpes, per capita at each generation, and others), which can change who receives what by a meaningful amount.
No spouse and no descendants. The estate moves up and out: parents, then siblings and their descendants, then grandparents, then aunts, uncles, and cousins.
Community property states add a layer. In states such as California, Texas, and Washington, community property (generally what the couple acquired during the marriage) is treated separately from separate property, and the spouse intestate share of each can differ.
Which relatives are not heirs?
Several categories surprise people:
- Unmarried partners. A long term partner who is not a legal spouse is not an intestate heir, no matter how long the relationship lasted. A small number of states still recognize common law marriage, which can change the answer, but most do not.
- Stepchildren. A stepchild you never legally adopted is generally not an heir.
- Former spouses. Divorce ends spousal inheritance rights.
- Friends, charities, and caregivers. They receive nothing under intestacy. Only a will, a trust, or a beneficiary designation can direct property to them.
Adopted children, by contrast, inherit from adoptive parents exactly as biological children do. A child born outside marriage inherits from a father once paternity is established under state law. A child conceived before death but born afterward is usually treated as having survived.
Does everything you own pass through intestacy?
No, and this is the most useful thing to understand. Intestacy governs only the probate estate. Many assets pass outside probate by their own terms, whether or not you have a will:
- Life insurance and retirement accounts such as a 401(k) or IRA go to the named beneficiary.
- Payable on death and transfer on death accounts go to the named recipient.
- Real property or accounts held in joint tenancy with right of survivorship go to the surviving joint owner.
- Assets already funded into a living trust pass under the trust terms.
An outdated beneficiary designation therefore overrides state intestacy law, and in most cases overrides a will too. If a former spouse is still listed on a retirement account, that designation is what the plan administrator follows.
Who becomes guardian of your minor children?
Not the intestacy statute. Inheritance and custody are separate questions. If one legal parent survives, that parent generally continues to have custody. If no parent survives, a court decides guardianship under a best interests of the child standard, weighing the relatives who come forward.
A will is the only place you can nominate a guardian. Courts are not bound by the nomination, but they give it real weight, and it heads off a contest among relatives who each believe they should serve. Dying intestate with minor children means a judge chooses with no written guidance from you.
Money for children is handled separately again. A minor cannot receive an inheritance outright, so a court typically orders it held in a guardianship or conservatorship account, with court supervision and periodic accountings, until the child reaches the age of majority. A trust created in a will or a living trust can instead stage distributions over time and name whoever you trust to manage them.
How does a court appoint an administrator?
With no will there is no nominated executor, so the probate court appoints an administrator, called a personal representative in many states. Statutes set a priority list, usually starting with the surviving spouse, then adult children, then other heirs, then creditors.
The duties look like an executor duties: inventory the assets, notify creditors and pay valid claims within the statutory claim period, file final income and estate tax returns, and distribute what remains according to the intestacy statute. Courts often require a bond when no will waives it, which is a real cost to the estate.
Many states also offer a simplified track for small estates through a small estate affidavit or summary administration, with dollar thresholds set by statute. If the estate is modest and includes no real property, heirs may be able to avoid full probate even without a will.
What happens if no heirs can be found?
The estate escheats to the state, usually after a diligent search and a statutory waiting period. In practice this is uncommon, because intestacy statutes reach fairly distant relatives before giving up. Some states cut the search off at a defined degree of kinship, while others keep going further out.
What does skipping a will actually cost?
There is no filing fee for dying intestate, but the costs appear elsewhere: a bond premium, a longer administration while heirs are identified and given notice, appraisals, and attorney fees if heirs disagree about shares or about who should serve. Blended families and jointly owned real estate are the two situations most likely to turn an intestate estate into litigation.
A will is not the only fix. Reviewing beneficiary designations, retitling accounts, and, for larger or multi state estates, a revocable living trust each reduce how much property intestacy law ever touches. Because the shares, the representation rules, and the small estate thresholds are all state specific, the statute in the decedent home state is the document that answers the question.