How an Estate Is Settled If There's No Will: Intestate Succession

If you're settling the estate of a deceased person who hasn't left a will, you probably have more than a few questions about how the estate will be distributed. First, it's important to understand that many kinds of assets aren't passed by will, such as:

• life insurance proceeds
• real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship
• property held in a living trust
• funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
• funds in a payable-on-death (POD) bank account
• stocks or other securities held in a transfer-on-death (TOD) account, and
• real estate or vehicles held with a transfer-on-death (TOD) deed or transfer-on-death vehicle title.

To find out who inherits these types of property, you'll need to locate the documents in which the beneficiary designation was established. These documents will tell you who is inheriting the property.(But if the property was co-owned with right of survivorship, the co-owner will now own the property.)

To find out who inherits other assets—solely owned property for which no beneficiary has been formally named, such as a house—you'll need to consult state law. Every state has "intestate succession" laws that parcel out property to the deceased person's closest relatives. More on this below.

Who's in Charge: Who Is the Executor or Personal Representative?

State laws set out a list of people who are eligible to fill the executor role when there is no will. If a probate court proceeding is necessary, the court will choose someone based on that priority list. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members. (If you've been chosen to serve as executor of an estate, see Should You Accept the Job of Executor to Settle an Estate?)

Who Gets What: The Basic Rules of Intestate Succession

Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse and there are no children. In the rare event that no relatives can be found, the state takes the assets.

All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child. (Learn more about relatives' rights to claim parts of an estate in Inheritance Rights.)

To find out the rules in your specific state, see Intestate Succession.

Understanding Key Terms in Intestate Succession

Intestate succession laws refer to groups of people such as "children" and "issue." You may think you know just what the term "children" means, but don't be too sure until you check your state's laws. It's not always obvious.

Spouse

To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it's clear who is and isn't married. But not always.

• Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.
• Common-law marriage. A few states allow common-law marriages (in which a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances). Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. Check your state's law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
• Same-sex couples. After a long period of uncertainty, the Supreme Court passed Obergefell v. Hodges in 2015, and same-sex marriage is now legal in every U.S. state. Married same-sex spouses have the same rights and responsibilities as all legally married people. This includes the inheritance rights that come with qualifying as a surviving spouse. In contrast, depending on the state, couples who are registered domestic partners or civil union partners (and not married) may not have all of the rights and responsibilities as married people. Further, some states automatically converted registered domestic partnerships or civil union partnerships to marriages. So whether you qualify as a surviving spouse will depend on the legal status of your relationship and your state's law. If you have any questions about the legal status of your relationship in your state, get help from an attorney who is knowledgeable about this area of law.

Children and Issue

The simple term "children" can mean different things to different people—and under different laws. Many state statutes use the term "issue" to describe who should inherit in the absence of a will, meaning direct descendants of the deceased person (children, grandchildren, and so on).

• Adopted children. In all states, in the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.
• Stepchildren. Most states do not include stepchildren (children of the spouse of the deceased person who were never legally adopted by the deceased person) in their definition of children for purposes of inheritance. In a few states, however, it may depend on the circumstances of the relationship.
• Foster children. Foster children do not normally inherit as "children" of the foster parents.
• Children adopted by an unrelated adult or family. In most states, placing a child for adoption severs the legal tie between the child and the birth parents. The child can no longer inherit from the birth parents under intestate succession laws, and the parents can no longer inherit from the child.
• Children adopted by a stepparent. A child who is adopted by a stepparent might still inherit from the biological parents; it depends on state law.
• Children born after the parent's death. A child conceived before a parent's death but born after the death (sometimes referred to as a "posthumous" child) inherits under intestate succession laws just as do children born during the parent's life.
• Children born outside marriage. A child born to unmarried parents always inherits from his or her birth mother, unless an unrelated family adopts the child. If the parents were never married, usually the child must show some kind of proof to inherit from the father.

Brothers and Sisters

If an intestate succession law includes the deceased person's "sisters and brothers" or "siblings" as heirs, this group generally includes half-siblings and may even include half-siblings who were adopted out of the family.

If an Heir Has Died

Obviously, an heir who has died can't inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it's essential that you do so before distributing assets.

Survivorship Requirements

To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time—theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other. Check your state law to learn the rules in your state.

Rights of a Deceased Heir's Descendants

Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent's share. In other words, they take the place of the parent. According to this concept (called the "right of representation"), children (or, in some cases, grandchildren) stand in the place of their deceased parent (or grandparent) when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law.

Taking Care of Minor Children

Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. But if a guardian is needed and there's no will, how does a court know whom to appoint? In that situation, the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents' wishes, and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children. (See How Guardianships Work FAQ.)