When a person dies without a will, state intestacy law decides who inherits, and a probate court runs the process. The surviving spouse and children come first, followed by parents, siblings, and more distant relatives if no closer family exists. A court-appointed administrator gathers the assets, pays the debts, and distributes whatever remains according to a fixed statutory order. Personal wishes, verbal promises, and close-but-informal relationships carry no weight. This is how inheritance works without a will in every state, and the mechanics matter because the default rules rarely match what most people would have chosen.
Who Inherits First
Probate courts follow a rigid line of succession. The surviving spouse almost always receives the largest share, though the exact amount depends on the state and on whether the deceased also left children. Under the Uniform Probate Code, adopted in some form by many states, the spouse’s initial share runs from $150,000 to $300,000 of the estate’s value plus a percentage of what remains. The threshold and percentage shift based on whether the children are also children of the surviving spouse, whether the spouse has children from a different relationship, and whether a parent of the deceased is still living. States that haven’t adopted the UPC use their own formulas, and some give the spouse a flat fraction like one-half or one-third instead of a dollar-first split.
If there is no surviving spouse, the children divide the entire estate equally. When a child died before the parent, that child’s share passes to their own children through a branch-based method called per stirpes, so each family line gets the same portion regardless of size. Some states instead use per capita distribution, where everyone living at the nearest generation shares equally.
With no spouse and no children, the court moves to the parents. If neither parent survives, siblings inherit next, then grandparents, aunts, uncles, and cousins. Every level of the family tree must be exhausted before the court moves outward. Only when no relatives can be located anywhere does the property go to the state through escheat, and that outcome is rare because courts will trace bloodlines out to distant cousins first.
Who Gets Nothing Under Intestacy
The system runs on legal relationships, so some people who feel like family inherit nothing at all. Stepchildren who were never formally adopted have no rights under any state’s intestacy statute, no matter how long they lived in the household. Unmarried partners are in the same position, regardless of how many years the couple was together. Only a legal marriage counts.
Common-law marriage is a narrow exception. A handful of states still recognize it, but the couple must have publicly held themselves out as married, not merely lived together, and proving the marriage after one partner has died can be a difficult fight with no guaranteed outcome.
Adopted children inherit exactly as biological children do, because the adoption creates a full legal parent-child relationship. A biological child adopted by someone else, however, generally loses inheritance rights from the biological parent, unless the adoption was by a close family member such as a stepparent. Half-siblings are usually treated the same as full siblings.
What Intestacy Does Not Control
Intestacy statutes only govern property that passes through probate, and a large share of most people’s wealth transfers outside that system. Life insurance, 401(k)s, IRAs, and any bank or brokerage account with a payable-on-death or transfer-on-death designation go directly to whoever is named on the beneficiary form. Some states also permit transfer-on-death designations for vehicle titles.
Real estate held in joint tenancy with right of survivorship passes automatically to the surviving co-owner the moment the other owner dies, without any court proceeding. Property held in a living trust is similarly outside the probate court’s authority; the successor trustee distributes it according to the trust document.
This gap catches families off guard. Someone might have a $500,000 life insurance policy naming an ex-spouse and a $200,000 house that passes through intestacy to their children. The beneficiary designation controls the policy, so the ex-spouse keeps the insurance money while the children inherit under the statute. After a divorce, remarriage, or death in the family, out-of-date beneficiary forms often send money to people the deceased never intended.
How the Probate Case Runs
Opening a formal probate case starts with paperwork. The petitioner gathers a certified copy of the death certificate, a list of every potential heir with names, addresses, and relationships, and a rough estimate of the estate’s value covering both personal property and real estate. The court uses that estimate to gauge complexity and set the administrator’s bond.
Next comes a Petition for Letters of Administration, filed in the probate court in the county where the deceased lived. The petition names the deceased, their last address, their family members, and the petitioner’s relationship to them. Courts are particular about completeness, and errors delay the case.
Who the Court Will Appoint
State law sets a priority order for who can serve as administrator. The surviving spouse comes first almost everywhere. If the spouse declines or does not exist, adult children have the next claim, then parents, siblings, and more distant relatives. Someone entitled to a larger inheritance share generally has priority over someone with a smaller one.
After filing, the court sends formal notice to all potential heirs so they can object. A judge holds a hearing, and if no one objects and the petitioner is qualified, the court issues Letters of Administration. That document is the administrator’s proof of authority when dealing with banks, insurers, and government agencies.
The Bond
Most courts require the administrator to post a surety bond before taking control of estate assets, protecting heirs and creditors if funds are mishandled. The bond amount is usually set at or near the estate’s gross value, and the premium runs between 0.5% and 0.8% of that amount. On a $200,000 estate, expect a premium somewhere between $150 and $1,700, depending on the administrator’s credit. Some states allow heirs to waive the bond unanimously, which saves money but removes a layer of protection.
How Long It Takes
Intestate probate is not quick. A straightforward, uncontested case typically takes nine months to two years from filing to final distribution. The first months go to appointment, inventory, and creditor notice. The middle stretch covers paying debts, resolving claims, and selling property when needed. Distribution comes last, after the creditor claim period closes. Contested estates, estates with real property in multiple states, or cases with missing heirs can run considerably longer.
Debts Get Paid Before Heirs
Nothing goes to heirs until the estate’s debts are handled, and this is where administrators get into trouble. An administrator who pays out to family before satisfying creditors can be held personally liable for those debts.
The administrator sends direct written notice to every known creditor and publishes a general notice in a local newspaper for unknown ones. Creditors then have a limited window to file claims, usually 30 to 120 days depending on the state and whether they got direct notice.
State law sets the payment priority. Funeral expenses and final medical costs come first. Administrative costs like court and attorney fees are next, followed by secured debts and taxes. Unsecured debts such as credit cards sit at the bottom. When the estate cannot cover everything, lower-priority debts go unpaid. In an insolvent estate, federal claims take priority over most other creditors under 31 U.S.C. ยง 3713, and an administrator who ignores that priority can be personally liable for the amount improperly distributed.1Office of the Law Revision Counsel. 31 USC 3713 – Priority of Government Claims
Heirs Do Not Inherit the Debt
One of the most misunderstood parts of the process: family members are not personally responsible for the deceased person’s debts. If the estate cannot cover what is owed, the shortfall generally dies with the person, and creditors cannot pursue heirs for it.2Federal Trade Commission. Debts and Deceased Relatives
The exceptions are narrow. A cosigner still owes the debt on their own. Surviving spouses in community property states may be responsible for debts incurred during the marriage, and some states hold spouses liable for certain healthcare costs. Otherwise, inheriting property does not make you responsible for the credit card bills or medical debt left behind.2Federal Trade Commission. Debts and Deceased Relatives
Protections for Spouses and Minor Children
Most states carve out protections that come ahead of creditors and other heirs. A family allowance covers living expenses during the probate period, and a homestead exemption shields the family home from some creditor claims. Dollar amounts vary widely by state. These allowances take priority over nearly all debts and are meant to keep a family from being left destitute while the estate works through the courts. Minor children can receive a separate allowance in many states, though the amounts are smaller than the spousal allowance.
Taxes the Estate Still Owes
Dying without a will does not change the tax picture. Every filing requirement that would apply to a testate estate still applies.
Someone has to file the deceased person’s final Form 1040 covering income from January 1 through the date of death. The deadline is the same as if the person were alive, usually April 15 of the following year. A surviving spouse filing jointly can include the deceased person’s income on their own return for that year.3Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
If the estate itself earns more than $600 in gross income during administration from interest, rent, dividends, or asset sales, the administrator must file Form 1041, the fiduciary income tax return. That covers income the estate generates after the date of death and is separate from the final individual return.4Internal Revenue Service. 2025 Instructions for Form 1041 and Schedules A, B, G, J, and K-1
The federal estate tax exemption for 2026 is $15,000,000 per person, set by the One, Big, Beautiful Bill Act signed in July 2025. Estates below that threshold owe no federal estate tax and do not file an estate tax return.5Internal Revenue Service. Whats New – Estate and Gift Tax The vast majority of intestate estates fall well below the line. Several states impose their own estate or inheritance taxes at lower thresholds, so the administrator should check state law separately.
What Probate Costs
Probate expenses come out of the estate before heirs are paid. Court filing fees for opening a case range from roughly $50 to $1,200 depending on the jurisdiction and the estate’s size. On top of that, expect charges for certified copies, publishing legal notices, and recording property transfers.
Attorney fees are usually the largest single expense. Some states set attorney compensation by statute as a percentage of the estate’s gross value, often on a tiered scale between 2% and 5%. On a $500,000 estate, that alone can run $10,000 to $25,000. States without statutory fee schedules allow hourly rates or flat fees, which may be higher or lower depending on complexity. Administrator compensation is often set at the same statutory percentage, which effectively doubles the professional costs.
Add in the surety bond premium, appraisal fees for real estate or valuable personal property, and accounting costs for tax preparation, and total probate costs on a moderately sized estate can consume 3% to 7% of its value before any heir receives a dollar.