When someone dies without a will, state intestacy law decides who inherits their property, and a probate court appoints someone to manage the estate. The rules follow a strict family hierarchy that starts with a surviving spouse and children and works outward from there. The deceased person has no say in who gets what or who runs the process — the state’s default rules fill that gap.
Who Inherits Under State Law
Every state ranks potential heirs in a fixed order. The exact shares differ from state to state, but the sequence is close to universal:
- A surviving spouse receives the largest share in nearly every state, with the exact portion depending on whether children also survive and whether the state follows community property or common law rules.
- Children split the estate equally if no spouse survives. If both a spouse and children survive, the children share whatever the spouse does not take.
- Parents inherit if there is no surviving spouse or children.
- Siblings come next, and in some states they share with surviving parents.
- Grandparents, aunts, uncles, and cousins inherit only when no closer relatives are living.
If a thorough search turns up no living relative within the degrees of kinship a state recognizes, the property goes to the state government through a process called escheat. That outcome is rare because intestacy laws reach out to even remote cousins before concluding no heir exists.
How Much the Surviving Spouse Gets
The spouse’s share depends on which state’s law applies and whether the deceased also left children. There is no single national rule.
In common law states, the spouse often receives a fixed dollar amount plus a fraction of the rest when children also survive. Several states have adopted some version of the Uniform Probate Code, under which the spouse takes the entire estate when no children or parents survive, or when all of the deceased’s children are also the spouse’s and the spouse has no other children. When children from another relationship are in the picture, the spouse’s share drops: the spouse takes a set dollar amount off the top plus half the remaining balance, with the children taking the rest. Not every common law state uses this dollar-first model; some give the spouse a flat fraction such as one-third or one-half. The consistent rule is that a surviving spouse almost never takes everything when the deceased left children from another relationship.
Community property states — including California, Texas, and Arizona among others — treat most property acquired during the marriage as owned equally by both spouses. The surviving spouse keeps their half of all community property outright. The deceased spouse’s separate property, meaning assets owned before the marriage or received as gifts or inheritance, then passes through the intestacy hierarchy.
What Children Inherit
If the deceased had children and no surviving spouse, the children split everything in equal shares. When both a spouse and children survive, the children divide whatever share the spouse does not take.
If one of the deceased person’s children died first but left behind grandchildren, the grandchildren step into their parent’s place and split the share their parent would have received. This is called inheriting “by representation.” If the deceased had three children, and one predeceased them leaving two children of their own, those two grandchildren would split the deceased parent’s one-third share, each taking one-sixth of the total estate.
Adopted children have the same inheritance rights as biological children in most states. Children born outside of marriage also generally qualify, though some states require legal establishment of paternity. Stepchildren who were never formally adopted typically have no inheritance rights under intestacy law.
Unmarried Partners Are Not Automatic Heirs
Living with a partner, even for decades, does not create inheritance rights in most states. Intestacy law treats an unmarried partner as a legal stranger to the deceased’s estate. Property passes to parents, siblings, or other blood relatives instead.
A handful of states recognize domestic partnerships or civil unions and extend some inheritance rights to registered partners. For unmarried couples who have not registered, a will, a trust, or beneficiary designations on financial accounts are the only reliable way to ensure a partner inherits.
Property That Skips the Intestacy Process
Not everything the deceased owned goes through probate. Several categories of property transfer automatically at death based on how they were owned, regardless of whether a will existed.
Property held in joint tenancy with right of survivorship passes directly to the surviving co-owner. This covers real estate, bank accounts, and other assets whose deed or account agreement includes survivorship language. The transfer happens by operation of law, with no court involvement. Married couples in many states can hold property as tenants by the entirety, which works similarly and adds protection from one spouse’s individual creditors.
Beneficiary designations on financial accounts also bypass intestacy. These include life insurance policies, 401(k) plans and other employer retirement accounts, IRAs, bank accounts designated as payable on death (POD), and brokerage accounts designated as transfer on death (TOD). Because the designation is a contract between the account holder and the institution, it overrides state intestacy law entirely.
Assets held in a revocable living trust avoid probate as well. The successor trustee distributes trust property to the named beneficiaries without court involvement, and the trust itself stays private. Only assets actually retitled into the trust are protected; anything still in the deceased person’s individual name goes through intestacy if there is no will.
What Happens to Minor Children
If one parent dies without a will, the surviving parent typically keeps custody. If both parents die without naming a guardian, the court appoints one. The judge decides based on the best interest of the child, weighing the child’s existing relationships, stability, and the proposed guardian’s ability to provide care. The court is not required to pick the closest relative in the family hierarchy, and multiple family members may petition.
A child under 18 generally cannot manage inherited money or property. In most cases the probate court appoints a property guardian, who manages the inheritance under court oversight until the child reaches adulthood. For smaller amounts, many states allow a custodian to be appointed under the Uniform Transfers to Minors Act, which is less burdensome than a full guardianship. The custodianship ends when the child turns 18 or 21, depending on the state.
How the Estate Gets Settled
Someone has to step forward and ask the court for authority to manage the estate. That person files a Petition for Letters of Administration with the probate court in the county where the deceased lived. The petition typically includes a certified copy of the death certificate, an inventory of known assets, a list of outstanding debts, the names and addresses of potential heirs, and an estimated total value.
The court then holds a hearing and appoints an administrator. State law sets a priority order for who may serve, with the surviving spouse generally first, followed by children or someone chosen by a majority of the heirs. Once appointed, the administrator receives Letters of Administration, which give them legal authority to access bank accounts, manage property, pay debts, and eventually distribute what remains.
Many courts require the administrator to post a probate bond before taking control of estate assets. The bond works like an insurance policy that protects heirs if the administrator mismanages the estate. The premium typically runs 0.5% to 1% of the bond amount annually for applicants with good credit, and can climb to 2% to 5% for applicants with poor credit. The bond amount is usually set at or near the estimated value of the estate’s assets.
Paying the Deceased Person’s Debts
Before anyone inherits anything, the estate’s debts must be settled. The administrator publishes a notice to creditors, usually in a local newspaper, and creditors generally have three to six months after publication (depending on the state) to file their claims with the court.
When the estate cannot cover all the debts, state law sets a priority order. Funeral and burial expenses typically come first, followed by the costs of administering the estate, then taxes, medical expenses from the final illness, secured debts like mortgages, and finally unsecured debts like credit cards.
Family members commonly worry that they will have to pay a deceased relative’s debts out of their own pockets. As a rule, they do not. Debts are paid from the estate’s assets, and if the estate runs out, the remaining debt typically goes unpaid.1Federal Trade Commission. Debts and Deceased Relatives
Taxes the Administrator Has to File
Death does not cancel tax obligations. The administrator is responsible for several returns.
The first is a final Form 1040 for the deceased, covering January 1 of the year of death through the date of death. “Deceased” and the date of death are written above the name line on the return. If a refund is due, the administrator may need to file Form 1310 along with the return.2Internal Revenue Service. Topic No. 356, Decedents
If the estate itself earns $600 or more in gross income during administration — from interest, rent, dividends, or asset sales — the administrator must also file Form 1041, the estate income tax return. The estate is a separate taxpayer from the date of death until it is fully distributed and closed.3Internal Revenue Service. Instructions for Form 1041 and Schedules A, B, G, J, and K-1
Federal estate tax applies only to very large estates. For people who die in 2026, the exemption is $15,000,000.4Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026, Including Amendments From the One, Big, Beautiful Bill The vast majority of estates fall below the threshold and owe nothing. For estates above it, the top marginal rate is 40% on the amount over the exemption.5Office of the Law Revision Counsel. 26 USC 2001 – Imposition and Rate of Tax Some states impose their own estate or inheritance taxes, often with lower exemption thresholds, so the administrator should check the rules in the state where the deceased lived and any state where the estate owns real property.
The Small Estate Shortcut
Most states offer a simplified process for smaller estates. A small estate affidavit lets heirs collect property without going through formal probate. The heir signs a sworn statement confirming their right to the property, and the bank or other holder releases the asset based on that affidavit.
The dollar limit varies widely by state, ranging from about $10,000 to $275,000, with most states falling between $50,000 and $100,000. Some set different limits for real property versus personal property. There is usually a waiting period of 30 to 45 days after the death before an affidavit can be used, and the estate must typically have no pending probate case, with all known debts paid or accounted for.
What It Costs and How Long It Takes
Probate is not free, and intestate estates tend to cost more than estates with a will because the lack of a will creates extra court oversight and more room for disputes over who should serve as administrator.
Court filing fees range from roughly $50 to $1,200 depending on the state and the estate’s size. The probate bond premium runs 0.5% to 1% of the estate’s value annually for well-qualified applicants. The required creditor notice in a newspaper usually costs between $100 and $500. The administrator is entitled to compensation; about 70% of states use a “reasonable compensation” standard, where the court weighs the estate’s size, complexity, and the time involved, while the rest use a statutory percentage of the estate’s value. Most administrators also hire a probate attorney, and those fees vary with the estate’s complexity.
A straightforward intestate estate with no disputes can close in six months to a year. More complex estates, especially those with real property in multiple states, contested heirship, or significant debt, can stretch to two years or longer. The creditor claim period alone eats three to six months, and busy courts can add further delays. Even the simplest cases rarely finish in under six months.