What Happens When Someone Dies Without a Will?

Dying Intestate: When the State Decides Who Inherits

Roughly 60% of American adults die without a will — the legal term is "intestate" — and in every one of those cases, the state legislature has already written a default will for them. That default is brutally rigid.

In New York, a surviving spouse gets the first $50,000 plus half the remainder; the children split the other half. California community property goes 100% to the spouse.

Texas splits separate personal property one-third to spouse, two-thirds to kids. These formulas don't ask what the deceased would've wanted. They don't know about the stepson she raised for 20 years or the partner he lived with for 15.

Roughly 60% of American adults do not have a will, according to surveys by Gallup and other organizations. This means the majority of estates in the United States are administered under intestacy rules. If you are dealing with a loved one’s estate and there is no will, understanding your state’s intestacy laws is the essential first step. The Uniform Probate Code provides a model that many states follow, but significant variations exist.

This guide explains how intestacy works in plain English, walks through the typical distribution patterns, identifies the people who are—and are not—protected by intestacy laws, and explains what you need to do if a loved one dies without a will. For a more detailed state-by-state analysis, see our guide on intestate succession rules.

How Intestate Succession Typically Works

Intestacy laws prioritize the deceased’s closest family members in a specific hierarchy. The surviving spouse nearly always receives a share, though the exact amount depends on whether there are also surviving children, parents, or siblings.

In most states, if the deceased is survived by a spouse and children who are also the children of that spouse, the spouse inherits the entire estate. If the deceased has children from a prior relationship, the spouse typically receives a percentage (often one-third to one-half) and the children share the remainder.

If there is no surviving spouse, the children generally inherit equally. States use terms like “per stirpes” or “by representation” to describe how shares are divided—while these methods can produce different results in complex family trees, the general principle is that if a child predeceased the parent, that child’s share typically passes to their own children (the deceased’s grandchildren).

If there are no children or grandchildren, the estate passes to the deceased’s parents. If the parents are also deceased, it passes to siblings, then nieces and nephews, then more distant relatives—the exact order varies by state.

If no relatives can be found after a thorough search, the estate “escheats” to the state—meaning the government takes ownership. But this is extremely rare. Most states will search for relatives out to a very distant degree (some go as far as great-great-grandchildren of great-grandparents) before escheating an estate. For most families, the question is not whether someone will inherit, but which family members get what share.

Who Gets Left Out: Unmarried Partners, Stepchildren, and Friends

The most painful aspect of intestacy is who it excludes. Unmarried partners—regardless of how long they lived together or how committed the relationship was—receive absolutely nothing under intestacy laws in every state.

Even domestic partners and registered partners have limited inheritance rights in most jurisdictions, and those rights vary widely. If your partner dies without a will and you are not married, you may have no legal claim to any of their assets, the home you shared, or the possessions you accumulated together.

Stepchildren are also excluded unless the deceased legally adopted them. A person who raised a stepchild for 20 years, attended every school event, and considered that child their own will leave nothing to that child under intestacy laws if there was no legal adoption. Close friends, charities, godchildren, and anyone outside the bloodline or legal marriage are similarly excluded. Intestacy laws are blunt instruments that recognize only legal family relationships.

This is the strongest possible argument for having a will, even a simple one. A basic will naming your partner, stepchildren, or other intended beneficiaries as heirs ensures they are not shut out.

If you are in one of these vulnerable categories and a loved one has told you they intend to provide for you, encourage them to get a will in place. Verbal promises and good intentions have no legal force. For more on the importance of proper planning, see our guide on how to avoid probate.

State-Specific Intestacy Variations

Intestacy rules differ significantly from state to state, particularly regarding the surviving spouse’s share. In New York, if the deceased is survived by a spouse and children, the spouse receives the first $50,000 plus half of the remaining estate, and the children split the other half. In California, a community property state, the surviving spouse receives all of the deceased’s community property (which is typically the bulk of the marital estate) plus a share of any separate property—one-third if there are two or more children, one-half if there is one child.

In Texas, the rules depend on the type of property. For community property, the surviving spouse keeps their half of the community estate, and the deceased’s half passes to the children (if any).

For separate personal property, the spouse receives one-third and the children receive two-thirds. For separate real property, the spouse receives a life estate in one-third and the children receive the remainder. These distinctions can create complex situations, particularly when the estate includes a mix of community and separate property.

Ohio intestacy rules vary based on the number of children and their relationship to the surviving spouse—generally, the surviving spouse receives all or a substantial share when all children are also children of the surviving spouse. If the deceased has children from a prior relationship, the surviving spouse receives the first $20,000 (if there is one child who is not the spouse’s) or the first $20,000 plus one-third of the balance (if there are two or more such children), with the rest going to the children.

These numbers are updated periodically, so check current statutes for your state. NOLO’s intestacy guide provides a good overview by state.

Community Property vs. Common Law States

Understanding the difference between community property and common law states is critical for intestacy cases. Nine states follow community property rules: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (Alaska and Tennessee allow opt-in community property). In these states, property acquired during the marriage is presumed to belong equally to both spouses, regardless of whose name is on the title or who earned the income.

When a spouse dies intestate in a community property state, only the deceased’s half of the community property is subject to intestacy distribution—the surviving spouse already owns the other half. This typically results in the surviving spouse retaining a larger share of the overall estate than they would in a common law state. But it also means that community property can pass to children or other heirs, not just to the surviving spouse.

In common law (separate property) states—the other 41 states—property belongs to whoever earned it or whose name is on the title. The surviving spouse’s intestacy share is determined by the state’s statutory formula, which may be more or less generous than the community property approach depending on the circumstances. For a detailed comparison, see our guide on community property vs. common law estate rules.

Appointing an Administrator: The Intestacy Equivalent of an Executor

When there is no will, there is no named executor. Instead, someone must petition the probate court to be appointed as the estate’s administrator (sometimes called a personal representative).

State law typically grants priority to the surviving spouse, then adult children, then parents, then siblings, then more distant relatives. If no family member is willing or able to serve, the court can appoint a public administrator or a professional fiduciary.

The administrator’s duties are essentially identical to those of an executor: inventorying assets, paying debts, filing tax returns, and distributing the estate. The main difference is that the administrator distributes the estate according to the state’s intestacy formula rather than according to a will.

In most states, the administrator is required to post a bond—a form of insurance that protects the beneficiaries against the administrator’s misconduct. Bond premiums generally range from 0.5% to 1% of the bond amount annually, though the actual cost depends on the state, the bond amount set by the court, and the administrator’s qualifications. See our guide on probate bond requirements for more detail.

If you are considering serving as administrator, be aware that the role carries significant legal responsibilities. You are a fiduciary, which means you must act in the best interest of all heirs and can be held personally liable for mistakes. For guidance on what the role entails, see our guide on choosing an executor, which covers the duties and qualifications that apply equally to administrators.

The Cost Difference: Intestate Estates Are More Expensive

Dying without a will almost always makes probate more expensive. Several factors contribute to higher costs.

First, the administrator must post a bond (which a will can waive for a named executor). Second, intestate estates cannot take advantage of independent administration in most states, meaning more court hearings, more attorney time, and more filing fees. Third, without a will to guide distributions, disputes among heirs are more common, and disputes mean litigation costs.

Intestate estates may also miss out on tax-saving strategies that could have been implemented through a will or trust. For example, a will can include a marital deduction trust (also called an A/B trust or credit shelter trust) that shelters assets from estate tax.

Without a will, the estate is distributed outright under the intestacy formula, potentially resulting in a larger estate tax bill on the surviving spouse’s subsequent death. Use our Probate Calculator to estimate the total costs for your specific situation.

The bottom line: creating a will is one of the most cost-effective things you can do for your family. A basic will costs $300 to $1,000 through an attorney, and it can save your family thousands of dollars in additional probate costs, bond premiums, and potential disputes. If a loved one has already died intestate, the priority is to find a probate attorney who can guide you through the process efficiently and minimize the additional costs.

What to Do If a Loved One Died Without a Will

If you are reading this because a family member has died intestate, here is your action plan. First, determine whether probate is even necessary by using our Do I Need Probate Quiz.

If most assets pass outside of probate (through joint ownership, beneficiary designations, or trusts), the intestate estate may be small enough for a simplified procedure. Second, identify who has priority to serve as administrator under your state’s laws, and decide whether that person is willing and able to take on the role.

Third, file a petition for administration with the probate court in the county where the deceased lived. You will need a certified death certificate, information about the deceased’s assets and heirs, and the filing fee. The court will schedule a hearing to appoint the administrator, typically within two to six weeks.

Once appointed, the administrator should follow the same steps as an executor: publish the creditor notice, inventory assets, pay debts, file tax returns, and distribute the estate according to the intestacy formula. Our guide on what to do when someone dies covers these steps in detail.

Finally, use this experience as motivation to create your own will. If going through intestate probate teaches you anything, it should be that having a will—even a simple one—gives your family clarity, reduces costs, and ensures that your assets go to the people you choose, not the people the state chooses for you.