A will is meant to pass along your property and possessions to your beneficiaries when you’re dead, and if you die without a will there isn’t a clear plan for how your estate should be distributed. The probate court will determine who gets your belongings as well as who becomes the legal guardian of your minor children.
Even if the court ends up choosing the heirs you had wanted, your beneficiaries may have to deal with an elongated probate process, which can delay how long it takes for them to receive your money and assets. Dying without a will complicates things for everyone involved, but creating an estate plan and writing a will as part of it can make things easier for your loved ones when they're grieving.
Probate if you die without a will
Probate is the process of administering an estate, and it’s carried out by a personal representative who brings the will to court, files the applicable paperwork, and eventually distributes the assets to your beneficiaries. Executors and personal representatives are appointed in a will so if you die without one someone else must step up to act as administrator. Usually a spouse has priority.
→ Read more about the difference between executor and administrator
In some cases, when the deceased leaves very few probate assets, the administrator may be able to transfer them by using a small estate affidavit and avoid formal probate.
→ Learn how to file to become executor with or without a will
What happens to your property if you die without a will
When you die without a will or proper estate plan, your money, personal belongings, and assets, including your house, will become part of your probate estate. How the estate is distributed depends on intestacy law, wherein the court decides who your heirs are. Your spouse and surviving descendants are first in line to inherit, followed by your closest living relatives (your next of kin).
Dying without a will leaves your final wishes and desires regarding your estate open to interpretation. Loved ones won't know what you would’ve wanted, so you need a will to state your intentions and prevent potential arguments and even legal battles amongst your family members.
Here’s a brief rundown of the consequences of dying without a will in different scenarios.
Dying without a will when you're single
If you're unmarried and survived by your parents, then they will typically inherit your estate. If there is no surviving parent, then your siblings may inherit your assets instead. A boyfriend or girlfriend will not inherit anything unless you are legally married to them.
Dying without a will when you're married
In most cases, your surviving spouse will be entitled to at least some portion of your assets when you die without a will. They could inherit the entire estate, or may even have to split it with any children or living parents.
In community property states, any assets acquired after marriage are community property; everything else is separate property (owned by the individual spouses). Intestate laws dictate what happens to community property and separate property when one spouse dies without a will — usually the surviving spouse receives most, if not all, of the marital property, and at least some of the separate property.
Dying without a will in a domestic partnership
Whether or not your domestic partner inherits your property when you die without a will depends on the state. Even when a registered domestic partner is entitled to certain rights, like health benefits, under state law, they may not have the right to inherit since they are technically not next of kin. Talk to an estate attorney if you have more questions.
Assets that aren’t affected by dying without a will
As long as you designated a beneficiary, the following assets can be received by the person you name without any involvement from a probate court, even if you die without a will:
Assets owned in joint tenancy
Life insurance policies
Assets in a trust
A house with a transfer-on-death deed or life estate deed
Money in a POD or TOD account, like a bank account or retirement account
Assets with a named beneficiary should never be included in your will (though you should still make one) since they can be transferred independently from the probate process. You may also want to designate a secondary beneficiary in case your primary beneficiary is unavailable.
→ More on what types of assets are subject to probate
What happens to your children if you die without a will
You can use a will to name a guardian for any minor child. If you die and there is no surviving spouse/parent, the court will appoint a guardian. Minor children who inherit may not be able to take full possession of an asset until they reach the age of the majority.
→ Find out how to choose a guardian for your child
When a parent dies without a will, their children or grandchildren usually have a right to inherit. This includes a child from a previous marriage and adopted children, but not stepchildren, who only inherit during intestacy if they have been legally adopted.
