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- The court opens an intestate estate
- State law chooses the heirs
- A spouse may not receive the entire estate
- Children and later generations may inherit by representation
- Not every asset follows intestacy law
- What if there are no close relatives?
- Debts still come before inheritance
- First steps after a death without a will
- Sources
Key Facts
- State level: Dying without a valid will is called dying intestate, and state intestacy law controls probate property not otherwise disposed of.
- State level: A probate court generally appoints an administrator or personal representative because no will names an executor.
- State level: Spouses and descendants commonly receive priority, but exact shares and qualifying relationships differ by state.
- State level: Beneficiary-designated, jointly owned, and trust assets may pass outside the will and are not automatically redistributed by intestacy law.
- State level: If no statutory heir can be found, remaining property may ultimately pass to the state through escheat.
When someone dies without a valid will, the person is “intestate.” The state does not immediately take everything. Instead, the probate estate is administered under the state’s intestacy statutes, which identify heirs and set their shares.
The court opens an intestate estate
Probate is the court-supervised process for collecting estate assets, addressing debts and taxes, and distributing the balance. With no valid will naming an executor, the court appoints a personal representative, often called an administrator. State law determines who has priority to request or receive that appointment.
The administrator locates property, gives required notices, handles valid claims, files required inventories or accounts, and distributes the remaining estate under a court order or applicable procedure. Intestacy changes who receives probate property; it does not eliminate administration expenses, creditor claims, or taxes that otherwise apply.
State law chooses the heirs
Intestacy statutes usually begin with a surviving spouse and descendants, then move through parents, siblings, and more remote relatives when closer classes are absent. The result is not a national family-tree formula. Marriage status, adoption, parentage, survival, half-blood relationships, and representation methods can change who qualifies and how shares are divided.
California provides a simple illustration of the basic rule. Probate Code section 6400 says any part of an estate not effectively disposed of by will passes to the decedent’s heirs under California’s intestacy provisions. The following sections then calculate the surviving spouse’s share and the order for other heirs.
A spouse may not receive the entire estate
A surviving spouse often receives all or a substantial share, but the answer depends on state law and which other relatives survive. A spouse may share with children, parents, or descendants from another relationship. Community-property rules can further separate the analysis by property type.
An unmarried partner is not automatically treated as a spouse merely because the relationship was long-term. A state that recognizes a valid common-law marriage may reach a different result from one that does not. Documentation of marriage, divorce, domestic partnership, adoption, and parentage can therefore be central to an intestate case.
Children and later generations may inherit by representation
If a child died before the parent but left descendants, many intestacy statutes use a representation system that lets those descendants take through the deceased child’s branch. States do not all choose the same starting generation or calculation method. The family facts and the controlling statutory language must be matched carefully.
Stepchildren generally are not heirs solely because of the step-relationship, although adoption or a state-specific equitable doctrine may change the result. Foster relationships and informal promises also do not automatically replace statutory parent-child rules. These issues are especially fact-sensitive when records are incomplete.
Not every asset follows intestacy law
The probate estate generally includes property held in the decedent’s individual name without a controlling survivorship mechanism. Assets with a valid beneficiary designation, joint survivorship title, or trust arrangement may pass outside probate. The American Bar Association describes operation of law as transfer based on state law or title rather than the terms of a will.
Common examples can include life insurance, retirement accounts, payable-on-death accounts, jointly owned property with survivorship rights, and funded trust property. Each asset needs its own title and beneficiary review. The absence of a will does not erase an otherwise effective contract, designation, or survivorship feature.
What if there are no close relatives?
Intestacy statutes continue beyond spouses and children through successive classes of relatives. Courts or administrators may use genealogical evidence to identify distant heirs. Only when no eligible taker exists does property ultimately escheat to the state under the governing statute.
“No known relatives” is therefore not the same as “the state inherits immediately.” Notice, investigation, claim deadlines, and proof of relationship come first. A late-discovered relative may need records establishing every link in the family chain.
Debts still come before inheritance
Heirs receive the net estate after administration and valid claims, not the decedent’s gross asset total. The personal representative follows state priority rules for expenses, creditor claims, and distributions. If liabilities consume the probate estate, statutory heirs may receive little or nothing.
Family members generally should not distribute or sell estate property before authority is established. Premature transfers can interfere with creditor notices, tax work, ownership records, and equal distribution. Immediate tasks usually include securing property, locating records, checking for any will, and identifying the correct probate court.
First steps after a death without a will
Search carefully for an original will, codicil, trust, and beneficiary records before concluding the estate is intestate. Order death certificates, secure the home and vehicles, and make a preliminary list of assets and debts. Check titles and beneficiary designations rather than assuming every asset belongs in probate.
Next, review the probate court’s local filing instructions and the state’s priority rules for appointment. A small-estate affidavit or summary process may be available when statutory conditions are met. Family conflict, uncertain heirs, real estate, insolvency, or multistate property can make advice from an estate attorney particularly useful.
