Intestacy laws are the default rules every state uses to distribute a person’s property when they die without a valid will. They rank surviving relatives in a fixed order of priority, assign each group a share of the probate estate, and route the process through a court that supervises debt payment and final distribution. About 18 states base their rules at least partly on the Uniform Probate Code, but every state has its own version, so the specific shares and formulas vary by jurisdiction even though the overall shape of the system is remarkably consistent.
What Property Intestacy Actually Controls
Intestacy only governs the probate estate: property titled solely in the deceased person’s name with no built-in mechanism to transfer it at death. A bank account with only the decedent’s name on it, a house deeded to them alone, a car, personal belongings. That’s the pool the state’s rules divide.
A lot of wealth never enters that pool. Life insurance policies, 401(k) accounts, and IRAs pass directly to whoever is named as beneficiary on the account paperwork. Property held in joint tenancy with right of survivorship transfers automatically to the surviving owner. Assets placed in a living trust bypass the court entirely. For families whose wealth sits mostly in retirement accounts or jointly held real estate, intestacy may end up controlling only a small fraction of what the person actually owned.
This matters for the practical question most readers are asking. The state’s default rules may apply to much less than you think, and the beneficiary designations on retirement and insurance accounts quietly override anything intestacy would say about those specific assets.
Who Inherits and in What Order
Each state ranks relatives in a priority order, and only the highest-priority group with living members inherits. Everyone below that group gets nothing.
The Surviving Spouse
The surviving spouse almost always has first priority. In many states, the spouse inherits the entire probate estate when the deceased left no children, or when every child belongs to both spouses. When the deceased had children from another relationship, the estate is typically split: the spouse takes a fixed dollar amount plus a fraction of the remainder, and those children share the rest.
Nine states follow community property rules, which changes the math. In those states, each spouse already owns half of all property acquired during the marriage outright. When one spouse dies, only the decedent’s half of community property enters the probate estate. The surviving spouse may still inherit some or all of that half under intestacy, but the starting position is different from what you see in a common-law property state.
Children, Parents, and More Distant Relatives
If there’s no surviving spouse, the estate goes to the decedent’s children, with the children of any deceased child stepping into their parent’s place. When no descendants exist, parents inherit next, in equal shares if both are living. After parents, priority moves to siblings and their descendants, then to grandparents, and outward to more distant relatives. The chain keeps extending until a living relative is found within the degrees of kinship the state recognizes.
The 120-Hour Survival Rule
Most states require an heir to outlive the deceased by at least 120 hours, or five days, to inherit. Drawn from the Uniform Simultaneous Death Act, this rule prevents a logistical tangle: without it, if two spouses died in the same accident minutes apart, the first spouse’s estate would pass to the second, then immediately go through a second probate proceeding. An heir who dies within the 120-hour window is treated as having predeceased the decedent, and the property moves straight to the next eligible heir.
When No Heirs Can Be Found
If the court cannot locate any qualifying relative, the estate escheats to the state government. Courts conduct extensive searches before allowing this, and escheat is genuinely rare. The law strongly favors keeping property within the family.
Who Gets Left Out
Intestacy laws are built around legal relationships, not emotional ones, and the gaps catch people off guard.
Unmarried partners have no inheritance rights under any state’s standard intestacy rules. If your partner dies without a will, you receive nothing from the probate estate. Some states recognize domestic partnerships or civil unions that carry spousal-like rights, but cohabitation alone never qualifies.
Stepchildren who were never legally adopted by the deceased are excluded in most states. Without a formal adoption, no legal parent-child relationship exists for intestacy purposes. A few states carve out narrow exceptions when an adoption was started but never completed for reasons outside the adopting parent’s control, but the default is no adoption, no inheritance.
Children conceived before a parent’s death but born afterward generally do inherit, treated no differently than children already born. A child conceived after a parent’s death using stored genetic material faces a much harder path. Courts in that situation typically require evidence that the deceased parent specifically intended the child to inherit.
How Shares Are Calculated When Descendants Have Died
When multiple heirs share a priority level, the state’s distribution formula determines how the estate gets split. These formulas matter most when a deceased person’s own children have themselves died, leaving grandchildren or great-grandchildren as the actual recipients.
Per Stirpes
Per stirpes, Latin for “by the branch,” divides the estate by family line. Each of the decedent’s children represents one branch. If a child has already died, that child’s share passes down to their own children in equal parts. Picture a parent with three children, each branch receiving one-third. If the middle child predeceased the parent and left two kids, those two grandchildren split the middle child’s one-third, each receiving one-sixth of the total.
Per Capita
Per capita, “by the head,” ignores family branches and gives every surviving heir at a given generation an equal share. With two surviving children and two grandchildren from a deceased third child, a strict per capita approach gives each of the four living people one-quarter, rather than sorting them by branch.
Per Capita at Each Generation
The Uniform Probate Code uses a hybrid called per capita at each generation. It starts at the closest generation with surviving members and gives each survivor an equal share. The remaining shares from deceased members of that generation get pooled and redistributed equally among the next generation of descendants, rather than tracked by branch. This method tends to treat same-generation heirs more equally than pure per stirpes: cousins in the same generation receive the same amount regardless of how many siblings they have.
Which formula your state uses depends entirely on its specific statutes, and it can meaningfully change how much each grandchild or great-grandchild actually receives.
Lifetime Gifts and Advancements
A large gift given during the decedent’s lifetime can reduce the recipient’s intestacy share, but only if there’s written proof. Under the approach most states follow, a gift counts as an advancement only when the decedent put it in writing at the time of the gift, or the heir later acknowledged it in writing. Without that documentation, the gift is just a gift and has no effect on the division. When an advancement is properly documented, its value gets added back to the estate for calculation purposes and then subtracted from the receiving heir’s share. An heir who already received more than their calculated share doesn’t owe anything back; they simply receive nothing further.
What Happens Before Heirs Get Paid
Intestacy doesn’t just name the heirs. It also sets up a court-supervised process that pays debts and taxes before anyone sees a distribution.
The Administrator
Someone has to run the estate, and courts follow a priority order that mirrors the heir priority: the surviving spouse first, then children, then other close relatives. The court issues Letters of Administration, which is the administrator’s proof of authority. Banks, title companies, and financial institutions won’t deal with anyone who doesn’t have that document.
Courts commonly require the administrator to post a surety bond, which is an insurance policy that protects heirs and creditors if estate funds are mismanaged. The court sets the amount based on the estate’s value, and annual premiums typically run between 0.5% and 5% depending on the administrator’s credit and the estate’s complexity. An administrator who uses estate funds for personal expenses, sells property below market value without justification, or fails to pay legitimate debts can be held personally liable, and the surety company will pursue them to recover anything it paid out.
The administrator’s duties follow a set sequence. First, publish a notice to creditors, usually in a local newspaper, which opens a claim window of several months. After the window closes, pay all valid debts and taxes from estate funds. Then distribute what’s left to the heirs. The process ends with a final accounting submitted to the court.
Creditor Priority
When an estate doesn’t have enough money to cover all its debts, the administrator can’t pick favorites. State law sets a strict hierarchy. The exact order varies, but the general ranking looks like this:
- Administration costs, including court fees and attorney fees
- Reasonable funeral and burial expenses
- Family allowances, such as a homestead allowance or exempt property set aside for the surviving spouse and minor children
- Federal debts and taxes
- Final medical expenses from the decedent’s last illness
- State taxes and debts
- General creditors, including credit cards and personal loans
Within the same priority class, creditors share proportionally if the money runs short. Heirs receive nothing until every valid claim is satisfied or accounted for.
Medicaid Estate Recovery
Federal law has required every state since 1993 to seek repayment of certain Medicaid costs from the estates of deceased recipients. If the decedent was 55 or older when they received benefits, the state Medicaid program has a claim against the probate estate for long-term care services, including nursing facility care, home and community-based services, and related hospital and prescription drug costs.1Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets
Recovery cannot begin while a surviving spouse is alive, regardless of where they live, or while the decedent has a child under 21 or a blind or disabled child of any age.1Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets States must also offer hardship waivers when recovery would cause severe financial harm to the heirs, though each state defines hardship differently. The amounts can be substantial. Years of nursing home care easily reaches six figures, so Medicaid claims are among the debts most likely to consume a modest estate before any heir sees anything.
Taxes
Death doesn’t eliminate tax responsibilities; it shifts who handles them. The decedent’s final individual income tax return (Form 1040) covers January 1 through the date of death. A surviving spouse can file jointly; otherwise, the court-appointed administrator files and signs as personal representative.2Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
If the estate itself generates $600 or more in gross income while being administered, from interest, rent, or investment gains, the administrator must also file Form 1041, the fiduciary income tax return.3Internal Revenue Service. Instructions for Form 1041 That requires the estate to have its own Employer Identification Number from the IRS.4Internal Revenue Service. Responsibilities of an Estate Administrator
For 2026, the federal estate tax applies only to estates exceeding $15,000,000, a threshold raised permanently by legislation signed in July 2025.5Internal Revenue Service. Whats New – Estate and Gift Tax The vast majority of intestate estates fall well below that line, but state-level estate or inheritance taxes often kick in at much lower thresholds and apply independently.
Cost
Dying without a will tends to cost more than dying with one, because the court exercises closer oversight and the process takes longer. The major expense categories are court filing fees, the surety bond premium, attorney fees, and the administrator’s compensation. In states that calculate attorney fees as a percentage of the estate’s value, total legal costs commonly fall between 3% and 8%, though many states require fees to be “reasonable” without setting a specific formula. These costs come out of the estate before any heir receives a distribution.
The Small Estate Shortcut
Not every intestate estate requires a full court proceeding. Every state offers some form of simplified process for smaller estates, though value thresholds vary widely, from as low as $10,000 in some jurisdictions to $200,000 in others.
The two most common shortcuts are simplified probate, sometimes called summary administration, and the small estate affidavit. Simplified probate still involves the court but strips away most formal steps: file a written petition, notify creditors and beneficiaries by mail, submit a closing statement. The affidavit process is leaner still. A beneficiary signs a notarized statement and presents it directly to the bank or other institution holding the asset to collect it, with no court involvement. The affidavit approach usually works only for personal property, not real estate, and many states impose a waiting period of about 30 days after death.
Even if the total estate looks too large to qualify, you may still be eligible if enough assets pass outside of probate through beneficiary designations, joint accounts, or trusts. What matters is the value of assets that would actually go through probate, not the decedent’s total net worth.