Colin Wong
In the US, if you die without a will, it’s known as dying intestate. In these cases, a court appoints someone to administer the estate, and state law decides who inherits.
If someone dies without a will, this is called dying intestate.
When this happens, it’s usually down to the courts to appoint someone to administer the estate, and to state law to name the people who inherit.
How long this takes varies a lot, by state and by estate. Some are settled without much trouble while others take a while, especially if family members disagree.
If you want a say in where your things go, a will is how you do it. If someone close to you has died without one, their estate will most likely be distributed under your state’s intestacy laws.
This guide will help you understand the rules and the administration process.
What is intestacy?
Intestacy is when a person dies without having made a valid will. They are referred to as having died intestate. Intestacy can occur if:
The deceased did not write a will
The original will has been lost
The will doesn’t deal with all of the deceased’s assets and property
The will wasn’t valid, signed or witnessed according to state law
It’s deemed that the will was written while the person was mentally incapable or under duress
What are the rules of intestacy?
When someone dies without a valid will, their estate is dealt with according to their state’s intestacy laws.
These laws differ from state to state, sometimes a lot. Who counts as next of kin, and what share each person inherits, is set by the state where the person lived.
Broadly speaking, a person's estate goes to close family first. That usually means a surviving spouse and children, though the split between them varies. In many states a surviving spouse inherits everything when all the children are shared. When there are children from an earlier relationship, the spouse often takes a share and the children take the rest. A handful of states are community property states, and they handle married couples differently again.
If there is no spouse or children, the state looks for other relatives, such as parents, siblings, then more distant family.
If no eligible relatives can be found, the estate passes to the state. This is called escheat, and it is rare.
Stepchildren and unmarried partners are worth a mention. In most states, neither inherits under intestacy laws. Check what your state does.
What intestacy laws do not cover
Not everything you own passes under these rules. Some things go straight to a named person instead, and a will does not change them either.
Property you own jointly with someone else, where the other owner takes it automatically
Retirement accounts and life insurance, which go to whoever is named on the account
Payable-on-death and transfer-on-death bank or brokerage accounts
This means an estate can be mostly settled without intestacy laws touching it, and it also means those beneficiary forms are worth checking every few years.
How to deal with an intestate estate
Usually, an executor is named in a person’s will. That person is responsible for paying off any debts, distributing the estate to beneficiaries, and carrying out any wishes in the will.
However, when someone dies without a will, there is no named executor. In this case, someone who believes they are an appropriate person to do the job must apply to the local probate court to be granted letters of administration. The court’s name varies by state. New York calls it the Surrogate’s Court, and a few states call it the Orphans’ Court.
If the application is successful, the person is granted the legal right to administer the estate and distribute its assets.
Who can administer an intestate estate?
Usually, the person with the greatest entitlement to the estate applies for the grant of letters of administration.
This person would be the spouse or partner, or one or more surviving children if there is no spouse. If there is no spouse or children, the closest next of kin can apply to be the administrator. That could be a grandparent, sibling, or cousin, for example.
If the closest next of kin does not want to administer the estate, they can ask an attorney licensed in their state to apply on their behalf. Some banks and trust companies do this work too.
Sometimes, disputes happen when more than one person believes they should be the administrator. In these cases, the dispute has to be settled before the administration of the estate can begin.
What are the duties of an estate administrator?
The role of an estate administrator is quite similar to an executor named in a will. Some states call the role personal representative, which covers both.
The biggest difference is that an executor may be granted additional powers in the will, while the administrator is limited to the powers granted by state law.
Some administrator responsibilities may include:
Locating and assessing assets. The administrator has to collect the physical belongings, financial accounts, and other assets of the estate, and arrange to have them valued. Any debts should also be assessed to work out the estate’s net value.
Protecting the assets. Once the assets are collected, the administrator must keep them safe. This may involve taking out insurance, maintaining property and possessions, and managing financial accounts.
Informing relevant bodies of the death. The administrator should notify government agencies such as the Social Security Administration and the IRS, and financial institutions such as banks, credit unions, and brokerages.
Paying debts and collecting money owed. The administrator must pay any outstanding debts or bills using funds from the estate, and collect any money owed to it. This may also involve filing tax returns.
Distributing assets. The administrator works out who inherits, and how much, under state intestacy laws. Once that is settled, they distribute assets and property accordingly.
Disadvantages of dying intestate
Without a will, your estate follows your state’s default rules instead of your wishes. Those rules are the same for everyone, and they may not match what you would have chosen. Key disadvantages of dying intestate include:
Potential disagreements among family and loved ones
No clear guide for settling your affairs
No say over who gets what
Taking the next step
You can write your will online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.