What Happens If You Die Without a Will?


If you don’t have a will, you’re certainly not alone: Multiple reports have shown that the majority of Americans lack a last will and testament. A 2016 Gallup poll put the number of adults with wills at just 44 percent; a more recent Caring.com survey found that only 42 percent of adults in the U.S. have estate-planning documents. 

The fact is, nearly every adult has assets—no matter how few—as well as final wishes for those assets. If you die intestate, or without a will, then your state’s laws (called state intestacy laws) will govern what happens to those assets (a process called intestate succession). And “sometimes it doesn’t happen the way you’d want or expect,” says Toni Ann Kruse, a partner at McDermott Will & Emery LLP in New York City, who focuses on estate and wealth transfer planning.

Who inherits your money and property?

In most states, your surviving spouse and children, if you have any, will be the beneficiaries of your assets. If there’s no spouse or children, other family members will inherit. For example, if you have no legal spouse or children, then, depending on state law, your assets might go to your parents (if they’re still living), or be divided among your siblings or nieces and nephews, or even more distant relatives. Unmarried partners inherit nothing, even if you live together.

It’s a myth, by the way, that if you die without a will the state will get all of your assets. That’s generally only the case if there are no heirs, says Anne Kelley Russell, an attorney with Moore & Van Allen, PLLC, in Charleston, South Carolina.

If you have non-probate assets like life insurance or retirement accounts, those will go to the beneficiaries you’ve named on the accounts. If you don’t have beneficiaries named they’ll be distributed along with your other assets.

Who’s in charge?

If you die intestate, the state will also determine important issues such as who will be named the executor (also sometimes called a personal representative or administrator) of your estate and who will be named the guardian of your minor children, if you have them. (Similar to custody cases in a divorce, a  judge will use a “best interests” criteria to determine guardianship, with preference usually given to a close family member.)

While intestate succession will be overseen by a judge in a local or probate court, your loved ones may want to (but don’t necessarily need to) hire a lawyer who focuses on estate administration and can help guide them through the process and make it easier to navigate. Your state’s bar association or a trusted financial advisor might be able to make a referral. A local probate court may also be able to offer guidance, Russell says. You can browse estate attorneys in your area using our service finder:

Once an executor is appointed, it’s their duty to determine the heirs of the estate and tally up your assets—just as it is with an executor named in a will. The job is the same; what changes is your ability to control who does it. (So if you don’t want your judge-y older sibling in charge of your affairs, take the steps necessary now to avoid that!)

As with any probate process, all of this takes time—anywhere from around 30 days to a year or more, depending on the state. Without a will, getting the process started—finding heirs, naming an executor and possibly a guardian—may be slower. Perhaps more importantly, it takes mental energy at a time when your loved ones are mourning and already grappling with emotions, Russell says.

“It’s important to have a will or estate plan if for no other reason than to provide your family with direction,” she says. “You loved ones will appreciate you giving them that.”

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