Intestacy means dying without a valid will, which hands the distribution of your property over to state law. A probate court applies a fixed hierarchy of relatives — spouse first, then children, then more distant kin — and divides the estate according to that formula regardless of what you may have told your family you wanted. So what does intestacy mean in practical terms? It means the government, not you, writes the plan.
Total and Partial Intestacy
Total intestacy applies when a person leaves no will at all. Every asset that would normally pass through probate is distributed under the default rules of the state where the person lived.
Partial intestacy is more common than people realize. It happens when there is a valid will, but the will doesn’t cover every asset. A bank account opened after the will was signed, or a clause the court strikes as unenforceable, can leave a gap. Anything the will fails to address passes under the same default rules as if no will existed, while the rest follows the will’s instructions.
Which Assets Intestacy Laws Actually Control
Intestacy statutes only reach probate assets: things held solely in the deceased person’s name with no built-in transfer mechanism. Individual bank accounts, a car titled only to the deceased, real estate in the deceased person’s name alone, and personal belongings like furniture or jewelry are the typical examples.
A great deal of wealth bypasses intestacy entirely. Life insurance, 401(k) accounts, and IRAs pass to whoever the account holder named as beneficiary. Property held in joint tenancy transfers automatically to the surviving co-owner. Assets in a living trust are distributed by the trustee under the trust’s terms. Transfer on Death and Payable on Death designations on bank and brokerage accounts work the same way. Only when a beneficiary designation is missing, or every named beneficiary has already died, does the asset drop back into the probate estate and become subject to intestacy rules.
This is worth checking before worrying about intestacy at all. A person who dies without a will but whose major accounts all have valid beneficiary designations may have very little actually governed by state default rules.
Who Inherits Under State Default Rules
Every state follows a fixed order of relatives when dividing an intestate estate. Many base their rules on the Uniform Probate Code, though the specific dollar amounts and fractions vary. The surviving spouse almost always has the strongest claim, but the exact share depends on who else survives.
The Surviving Spouse’s Share
Under the Uniform Probate Code framework used in many states, the spouse’s share tracks the family structure:
- No children and no surviving parent of the deceased: the spouse inherits everything.
- No children, but a parent of the deceased is still living: the spouse receives the first $300,000 plus three-fourths of the remainder.
- The couple had children only together, and the spouse has no children from another relationship: the spouse inherits everything.
- The couple shared children, but the surviving spouse also has children from a prior relationship: the spouse receives the first $225,000 plus half the remainder.
- The deceased had children who are not the surviving spouse’s children: the spouse receives the first $150,000 plus half the remainder, and the deceased’s children take the rest.
Children and More Distant Relatives
With no surviving spouse, the deceased person’s children split the estate equally. If a child died before the deceased but left behind their own children, those grandchildren typically step into that child’s place and share that portion.
With no spouse and no descendants, the estate climbs the family tree: to the deceased person’s parents, then to siblings, then to nieces and nephews, then outward to grandparents, aunts, uncles, and cousins. Most states treat half-siblings the same as full siblings; a small number give them a reduced share or let them inherit only when no full siblings survive.
If no qualifying relative can be found, the estate goes to the state through a process called escheat. Courts search thoroughly for heirs first, sometimes hiring specialized researchers, so escheat is uncommon.
Who Gets Nothing Under Intestacy
This is where intestacy produces the sharpest surprises. Several categories of people who may have been closest to the deceased have no claim at all.
- Unmarried partners. A person who lived with the deceased but was never legally married has no inheritance rights under intestacy statutes. A long-term partner receives nothing while distant blood relatives may inherit.
- Stepchildren who were never adopted. In the vast majority of states, only biological children and children legally adopted by the deceased qualify as descendants. An unadopted stepchild is treated as a legal stranger to the estate, even if the stepparent raised them for decades.
- A person who caused the death. Under the slayer rule, recognized in nearly every state, someone who feloniously and intentionally killed the deceased is barred from inheriting. The rule treats the killer as if they died first. A criminal conviction establishes the disqualification automatically, but a civil court finding of intentional killing can also apply the rule without a conviction.
There is also a timing rule to be aware of. Under the Uniform Simultaneous Death Act, adopted in many states, an heir must survive the deceased by at least 120 hours — five full days — to inherit. If an heir dies within that window, the estate is distributed as if that heir had died first. The rule prevents an estate from passing through two probate proceedings in rapid succession when two closely related people die in the same accident.
How an Intestate Estate Gets Settled
Because there is no will naming an executor, the probate court appoints an administrator. Courts typically give preference to the surviving spouse, then adult children, then other close relatives. The administrator usually has to post a surety bond, essentially an insurance policy that protects the estate if the administrator mishandles funds. The court sets the bond amount based on the estate’s value, and the annual premium typically runs a small percentage of that amount.
The administrator locates all assets, has them appraised, notifies creditors, pays valid debts and taxes, files the deceased person’s final income tax return, and distributes what remains to the heirs according to the statutory hierarchy. The court supervises the whole process and requires a full accounting before approving the final distribution. The administrator cannot deviate from the state’s intestacy rules, even if family members believe the deceased would have wanted something different.
Debts Come Before Heirs
No heir receives anything until the estate’s valid debts and expenses are paid. The administrator notifies known creditors and publishes a notice for unknown ones, giving them a window — typically a few months, depending on the state — to file claims. The federal government is not bound by those state deadlines and can file claims later.
State law sets the order of payment, generally starting with family allowances for the surviving spouse and minor children, then funeral and burial costs, administrative expenses, final medical bills, taxes, and finally remaining secured and unsecured debts. If debts exceed assets, the estate is insolvent and heirs receive nothing, but they are not personally responsible for the deceased person’s debts unless they co-signed or guaranteed them.
How Long It Takes
The entire process typically runs nine months to two years, depending on complexity. Courts generally issue the formal appointment, called letters of administration, within three to four months after the death. Final distribution usually occurs between nine and 24 months later. Contested claims, difficulty locating heirs, or family disputes can push the timeline further out.
Tax and Homestead Points Worth Knowing
Intestacy does not change the basic federal tax rules on inherited property, but it can cost the family money that planning would have saved.
For 2026, estates valued at $15,000,000 or less are exempt from federal estate tax entirely, so most intestate estates owe nothing at the federal level.1Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026, Including Amendments From the One, Big, Beautiful Bill For larger estates, intestacy can reduce the benefit of the unlimited marital deduction. The deduction exempts property passing to a surviving spouse from estate tax, but when intestacy splits the estate between the spouse and children, only the spouse’s share qualifies.2eCFR. 26 CFR 20.2056(b)-4 – Marital Deduction; Valuation of Interest Passing to Surviving Spouse A will could have directed everything to the spouse first and deferred the tax entirely.
A handful of states impose their own estate taxes, inheritance taxes, or both, often at thresholds well below the federal level. Inheritance tax rates can reach as high as 16 percent, though spouses and children are usually taxed at the lowest rates or exempt. More distant relatives face the steepest rates.
Most states also provide surviving spouses with a homestead allowance that shields the family home, or a portion of its value, from creditors and estate claims. These protections vary dramatically from state to state. Families dealing with an intestate estate often miss them because no estate planning professional is involved to flag the option. The surviving spouse should ask the probate court about homestead rights, family allowances, and exempt property claims early in the process.