die without a will.

What Happens When You Die Without A Will?


Having a will is crucial because it ensures your personal and financial assets go to the people and organizations you care about. It also lets you choose someone to handle your affairs, known as your executor. Creating a will is often done alongside preparing a power of attorney and healthcare proxy forms. No matter how big or small your estate is, having a will is essential.

Intestacy Laws for Married Individuals

Married with Children

If you are married with children and die without a will, it can cause significant problems for your family. Property that is jointly owned with your spouse will go directly to them without needing to go through probate. However, separately owned property and accounts will be distributed by the state. Usually, one-third of the assets go to the surviving spouse, and the rest is divided among the children. If the children are minors, the funds will be held in an account accessible only with court approval, which can be a hassle for the family.

Married Without Children

If you are married but have no children, your entire estate may go to your spouse. However, some states have a cap, such as $100,000. Other states may give a portion of the assets to the deceased’s parents or siblings if the parents are not living. Jointly owned property and accounts will automatically go to the surviving spouse.

Inheritance Rules for Single Individuals

Single with Children

For a single person with children, state law usually gives the decedent’s assets to surviving children in equal shares. If an adult child has passed away, their share is divided among their children (the decedent’s grandchildren). If the children are minors, the money will be under court control and supervision, which can complicate access to funds.

Single Without Children

If a single person with no children dies, their assets typically go to their surviving parents. If the parents have passed, the assets are distributed to the decedent’s siblings, or nieces and nephews if the siblings have also passed. States use a consanguinity chart to determine the distribution of assets, which can result in distant relatives inheriting the estate.

Rules for Unmarried Couples and Domestic Partners

Unmarried Couples

When a member of an unmarried couple dies without a will, the surviving partner has no legal rights to the estate. Only spouses and blood relatives are recognized by state law, so the partner will not inherit anything.

Domestic Partners

Domestic partners are treated differently depending on the state. In some states, they have inheritance rights similar to spouses, while in others, they do not.

Distribution to Distant Relatives or the State

If there are no living family members, the estate usually goes to the state. This means your hard-earned assets may end up in the hands of distant relatives you’ve never met or the government.

State-Specific Intestacy Rules

Intestacy laws vary from state to state, which can impact how your assets are distributed. Here are a few examples:

  • California: If you die without a will, your spouse inherits all community property and one-third to one-half of your separate property, depending on whether you have one child or multiple children.
  • Texas: The surviving spouse inherits all community property, but the separate property is divided between the spouse and children.
  • New York: The spouse receives the first $50,000 plus half of the remaining estate, with the rest going to the children.

Frequently Asked Questions (FAQs)

What is intestacy?

Intestacy refers to the condition of an estate of a person who dies without a will. The state’s intestacy laws determine how the estate is distributed.

Can a will prevent my estate from going through probate?

No, having a will does not prevent probate. However, it does make the process smoother by outlining your wishes for asset distribution.

How can I ensure my unmarried partner inherits my assets?

To ensure your unmarried partner inherits your assets, you need to create a will that specifies this. Without a will, your partner will not have legal rights to your estate.

An experienced estate planning attorney can help you create a will and related documents to make sure your wishes are carried out after your death. Without a will, your estate will be distributed according to state laws, which may not align with your wishes. Protect yourself and your loved ones with a properly prepared will.

The Law Firm of Benjamin Eckman provides New Jersey residents with Estate Planning and Elder Law services. Please click here to schedule a complimentary consultation: Book a Call

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