Intestacy means dying without a valid will. When that happens, the deceased person’s property doesn’t go unclaimed and it doesn’t go wherever the family agrees it should go. It passes to relatives according to a default ranking written into state law, starting with the surviving spouse and children and working outward to more distant kin.1Cornell Law School / Legal Information Institute. Intestate The specifics vary by state, but the logic is the same everywhere: the law makes its best guess about who the deceased would have chosen, and distributes the estate accordingly.
Total and Partial Intestacy
There are two ways to land in intestacy. Total intestacy means no valid will exists at all. Partial intestacy means a will exists but doesn’t cover everything, either because some assets were left out of it or because a court struck down specific provisions as legally defective. Whatever the will doesn’t validly cover falls under the state’s default distribution rules.2Cornell Law School / Legal Information Institute. Intestate Succession
Wills fail for ordinary reasons more often than dramatic ones. Under the Uniform Probate Code, which about half the states have adopted in some form, a will must be in writing, signed by the person making it, and either signed by at least two witnesses or acknowledged before a notary. Miss one of those steps and a court can throw the whole document out.
Roughly 30 states also recognize holographic wills, which are handwritten entirely by the testator and signed but need no witnesses. Around 20 states still accept nuncupative (oral) wills under tight restrictions, usually limited to deathbed statements, witnessed in person, and covering only personal property. If a holographic or oral will doesn’t meet the state’s requirements, it fails like any other defective will.
What Property Intestacy Actually Controls
Intestacy rules only reach probate assets: property the deceased person owned individually with no built-in transfer mechanism. That typically covers bank accounts without a “payable on death” designation, real estate held in the deceased’s name alone, vehicles, personal belongings, and individual investment accounts.
A large share of most people’s wealth never touches intestacy at all. Retirement accounts like a 401(k) or IRA pass directly to whoever is named as beneficiary on the account. Life insurance proceeds go to the named beneficiary. Real estate held in joint tenancy with right of survivorship transfers automatically to the surviving co-owner. Assets inside a revocable living trust pass to the trust’s beneficiaries outside probate. None of this depends on whether a will exists, and intestacy statutes have no say over any of it. If the largest assets all carry beneficiary designations or survivorship rights, the intestacy question may only concern the furniture and the checking account.
Who Inherits, and in What Order
Every state ranks potential heirs in a priority list. Details differ, but the structure is remarkably consistent across the country because many states modeled their statutes on the Uniform Probate Code.2Cornell Law School / Legal Information Institute. Intestate Succession
The Surviving Spouse
The spouse comes first and often takes everything. Under the Uniform Probate Code’s framework, the spouse inherits the entire estate when no children or parents survive, or when all of the deceased’s children are also the spouse’s children. Blended families change the math. If the deceased had children from a prior relationship, the spouse’s share drops, often to the first $150,000 plus half the remaining balance. If there are no children but a surviving parent, the spouse typically receives the first $300,000 plus three-quarters of the remainder. States set their own dollar figures, but the pattern holds: the surviving spouse rarely leaves empty-handed.
Children and Their Descendants
After the spouse’s share is set aside, the remainder goes to the deceased’s children in equal portions. Legally adopted children inherit on the same footing as biological children. Stepchildren and foster children generally do not inherit under intestacy unless they were legally adopted, though the 2019 revision to the Uniform Probate Code expanded rights for stepchildren and people with a recognized “de facto parent” relationship in states that have adopted those changes.
If a child predeceased the parent but left children of their own, those grandchildren step into their parent’s place and split the share their parent would have received. This representation principle is what keeps assets flowing down each branch of the family.
Parents, Siblings, and More Distant Relatives
With no spouse, children, or grandchildren, the estate moves up to the parents. Surviving parents split equally, or a sole surviving parent takes the full amount. After parents comes siblings, then siblings’ descendants, then grandparents, then aunts, uncles, and cousins. These situations get rarer the further out the law reaches.
When No Heir Can Be Found
If no relative turns up at any level of the hierarchy, the property escheats to the state.2Cornell Law School / Legal Information Institute. Intestate Succession Under the Uniform Probate Code, this applies “if there is no taker.” It sounds dramatic but is genuinely uncommon. Courts trace family trees back several generations before giving up, and some states allow very distant cousins to claim. Escheat is a last-resort safety net, not a typical outcome.
How Shares Split Among Descendants
When multiple generations are involved, the division depends on which distribution method the state uses, and families are sometimes blindsided by the result.
Per stirpes (Latin for “by branch”) keeps each family line intact. If the deceased had three children and one died first, the two surviving children each take one-third, and the predeceased child’s one-third passes equally to that child’s own children. Those grandchildren share only within their branch, not with the surviving aunts and uncles.
Per capita at each generation is the Uniform Probate Code’s method. It starts the same way, dividing the estate at the first generation that has living members, but any leftover shares from deceased members of that generation are pooled and redistributed equally at the next generation down rather than staying inside each branch. The practical effect is that grandchildren in the same generation receive equal shares regardless of which branch they came from.
The difference can shift thousands or hundreds of thousands of dollars between family members, especially when one branch has many more descendants than another.
Who Gets Nothing
Intestacy distributes property based strictly on legal relationships, and the gaps in that framework catch people off guard more than the rules themselves do.
Unmarried Partners
If you are not married to your partner, your partner inherits nothing under intestacy. That holds regardless of how long you lived together, whether you own property jointly, or whether you have children together. A handful of states recognize domestic partnerships or civil unions that may carry some inheritance rights, but across most of the country an unmarried partner is legally invisible when the other dies without a will. This is the single most common reason estate planning attorneys urge unmarried couples to draft wills or set up beneficiary designations and joint ownership.
Someone Who Caused the Death
A person who intentionally and feloniously kills the deceased cannot inherit from them. Under the slayer rule, the court treats the killer as if they died before the victim, removing them from the heir list and passing the estate to the next person in line.3Cornell Law School / Legal Information Institute. Slayer Rule A criminal conviction isn’t required. A probate court can reach its own conclusion based on the evidence, and an acquittal in criminal court doesn’t prevent the civil finding. The killing must have been both intentional and felonious for the rule to apply.
Minor Children When Both Parents Die Intestate
If both parents die without a will, no one has automatic legal authority to raise their minor children. A will is the standard way to name a preferred guardian, and without one the decision belongs entirely to a judge.
A family member or other interested adult petitions the court for guardianship. The judge holds a hearing and decides based on the child’s best interests, weighing the proposed guardian’s relationship with the child, stability, and ability to provide care. If the child is 14 or older, some states require the child’s consent. When multiple relatives compete for guardianship, the proceeding can turn adversarial and expensive, with the outcome controlled by the court rather than the parents.
If the children inherit property through intestacy, the court may also appoint a guardian of the estate or require a conservatorship to manage those assets until the children reach adulthood. A guardian ad litem may be appointed to represent the children’s interests independently during probate, acting in the child’s best interest rather than simply advocating the child’s preferences.
How the Estate Actually Gets Handled
Because no will names an executor, the probate court must appoint someone to run the estate. That person is called the administrator, and the appointment itself takes time a will would have saved.
An interested party files a petition asking the court for Letters of Administration, the document that grants authority to act on behalf of the estate. Courts follow a statutory priority list: surviving spouse first, then adult children, then other heirs. If no family member is willing or able to serve, the court can appoint a professional fiduciary or a public administrator. A creditor may petition, but typically has to wait at least 45 days after the death.
Most courts require the administrator to post a surety bond, essentially an insurance policy that protects the estate if the administrator mishandles funds. Heirs sometimes petition to waive the bond when the administrator is a trusted family member, and some courts agree.
The administrator owes a fiduciary duty to the estate and its heirs. That means managing assets competently, paying debts in the correct order, filing tax returns on time, and avoiding risky investments with estate funds. An administrator who misses a tax deadline, lets property fall into disrepair, or speculates with estate money can be held personally liable. Honest mistakes made in good faith are generally forgiven; negligence and self-dealing are not.
Debts and Taxes Come Before Heirs
Heirs receive nothing until the estate’s obligations are settled. The administrator must notify known creditors and publish notice to unknown ones. Creditors then have a limited window to file claims, often four months after notice is published, though the exact period varies by state. Late claims are generally barred. When the estate can’t cover all its debts, state law sets a priority order, usually administrative costs and funeral expenses first, then secured debts, taxes, and finally general unsecured claims. An insolvent estate leaves heirs with nothing.
The administrator also files the deceased’s final federal income tax return, covering income earned from January 1 through the date of death.4Internal Revenue Service. File the Final Income Tax Returns of a Deceased Person Any unfiled returns from prior years must be filed too.5Internal Revenue Service. Responsibilities of an Estate Administrator Separately, the estate itself may owe federal estate tax if its gross value exceeds $15 million for an individual dying in 2026, a threshold made permanent by the One Big Beautiful Bill Act signed in July 2025.6Internal Revenue Service. Whats New – Estate and Gift Tax Most estates fall well below that, but the administrator still has to assess whether a filing is required.
Time and Cost
Intestate administration commonly runs six months to two years, and complicated cases stretch longer. The creditor notification window alone takes several months. Disputes over who should administer the estate, contested family relationships, hard-to-locate heirs, and real estate that needs appraisal or sale all add delay. Probate courts in many places are backlogged, and every added complication means another court appearance.
Attorney fees, court filing fees, administrator compensation, bond premiums, appraisal charges, and publication costs all come out of the estate. Combined, these expenses often consume several percent of the total value, which leaves heirs with meaningfully less than they expected. Every state offers simplified procedures for small estates, often through a sworn “small estate affidavit” that lets heirs skip formal probate when the probate assets fall below a statutory threshold, but that only helps when the estate is small enough to qualify.
All of this is the practical case for writing a will: not just controlling who gets what, but shortening the time, trimming the cost, and reducing the family conflict involved in getting there.