When a person dies without a will, state intestacy law takes over and decides who inherits, a probate court appoints someone to settle the estate, and anyone outside the legal family tree gets nothing. That is the short version of what happens when you die without a will, and it is the part most families learn too late. The longer version has real consequences: unmarried partners inherit zero, stepchildren inherit zero, the process runs longer and costs more, and a judge who never met your family decides who raises your children.
Who Inherits Under State Intestacy Law
Every state has a statute that ranks relatives in a fixed order, and the probate court works down that list until it finds someone who qualifies. The Uniform Probate Code is a widely referenced model, though only about 18 states have adopted it even in part; the rest use their own variations.1Cornell Law School. Uniform Probate Code The pattern across states looks similar even where the specifics differ: surviving spouse and children first, then parents, then siblings and more distant relatives.
Under the UPC framework, what the surviving spouse takes depends on who else is still alive:
- No surviving children or parents: the spouse inherits the entire estate.
- No surviving children, but a parent survives: the spouse receives the first $300,000 plus three-fourths of what remains.
- All of the deceased’s children are shared with the spouse, but the spouse has other children from a different relationship: the spouse receives the first $225,000 plus half the balance.
- The deceased has children who are not the spouse’s: the spouse receives the first $150,000 plus half the balance.
Children split whatever the spouse does not receive, in equal shares. If a child died before the parent but left children of their own, those grandchildren typically step into the deceased child’s share. When no spouse or children survive, the estate climbs to the parents, then siblings, then nieces and nephews, then grandparents, and outward through aunts, uncles, and cousins.
If the court exhausts every possible relative and finds no one, the estate “escheats” to the state, meaning the government takes permanent ownership of what is left. It is rare, but it is the backstop.
The 120-Hour Survival Rule
An heir generally must outlive the deceased by at least 120 hours, or five full days, to inherit under intestacy. The rule, drawn from the Uniform Simultaneous Death Act and adopted in many states, prevents the mess that happens when two people die in the same accident or within hours of each other. Without it, assets could pass to someone who dies almost immediately, triggering a second probate and routing the property into a different family line. If an heir fails to survive the five-day window, the estate is distributed as if that person had died first.
Who Is Shut Out Entirely
This is where dying without a will does the most damage. Intestacy statutes are built around blood and legal family, and they ignore almost everyone else.
- Unmarried partners. A long-term romantic partner, no matter how many years you shared a home, inherits nothing in nearly every state. Only a legally recognized spouse qualifies.
- Stepchildren. Unless formally adopted, a stepchild is not a legal heir. A stepparent who raised a child from infancy can die intestate and leave that child with no inheritance rights at all.
- Close friends. No intestacy statute accounts for friendship, however close.
- Charities and nonprofits. Only a will or trust can direct assets to an organization. Intestacy sends everything to relatives.
- In-laws. A son-in-law or daughter-in-law has no inheritance rights, even if they were the deceased’s primary caregiver.
People in these categories can inherit only if they are specifically named in a will, trust, or beneficiary designation. Courts have no discretion to override the statute based on fairness or on what the deceased probably would have wanted.
Assets That Skip Probate Altogether
Not everything the deceased owned passes through intestacy. Some assets transfer automatically based on how they were titled or who was named as beneficiary, regardless of what the intestacy statute says and regardless of whether a will exists.
- Property held in joint tenancy with right of survivorship passes instantly to the surviving co-owner at death, with no court involvement.
- Payable-on-death and transfer-on-death accounts, including bank and brokerage accounts and in some states even real estate, go to the named beneficiary outside of probate.
- Life insurance proceeds go directly to the listed beneficiary. The probate estate never touches them.
- Retirement accounts, including 401(k) plans and IRAs, pay out to whoever is named on the plan documents.
Because these assets never enter the probate estate, they are generally not available to pay the deceased’s creditors either. For families waiting on a slow intestate settlement, these transfers are often the fastest source of money.
How Probate Works Without a Will
When there is no will, the probate court takes a more active role. There is no named executor, so the court must appoint someone, called an administrator or personal representative, to manage the estate. A surviving spouse or adult child usually petitions for the role, though the court can appoint someone else if the petitioner is unsuitable or if family members disagree.
Once appointed, the administrator receives Letters of Administration, the court’s authorization to act on the estate’s behalf. With that document, the administrator can access bank accounts, manage real property, collect debts owed to the deceased, and handle the estate’s financial obligations.
The administrator’s work generally runs in this order:
- Inventory and appraise every asset the deceased owned, often with professional appraisals for real estate, businesses, or valuable personal property.
- Publish a public notice to creditors. Creditors then have a limited window, typically three to six months depending on the state, to file claims.
- Pay valid debts, funeral expenses, and administrative costs from estate funds.
- Petition the court for approval to distribute what is left to the legal heirs under the state’s intestacy statute.
The court supervises every major step. The administrator cannot simply sell the house or divide up accounts; significant transactions need court approval, and a final distribution plan has to be filed before any heir receives anything.
How Long and How Much
Intestate estates generally take longer to settle than estates with a clear will because the court has to verify the identity and standing of every potential heir. A straightforward case with cooperative family and no creditor disputes might close in nine to twelve months. Contested estates, estates with hard-to-find heirs, or estates holding real estate in multiple states can run two years or more.
Probate is not free. Court filing fees vary by state and are often scaled to the estate’s value. On top of that come attorney fees, administrator compensation, appraisal costs, and the surety bond the court may require. Administrator compensation follows statutory fee schedules in roughly half the states and a “reasonable compensation” standard in the rest. As a rough benchmark, total administrative costs often fall between 3% and 7% of the estate’s gross value, with larger estates landing at the lower end as a percentage and smaller estates paying proportionally more.
Debts Come Before Heirs
No one inherits anything until the estate’s debts are paid. The administrator is personally responsible for following the correct priority order, and getting it wrong can mean personal liability for the shortfall. The payment hierarchy in most states runs: funeral and burial expenses, then costs of administering the estate, then taxes, then medical bills from the final illness, and finally general unsecured debts like credit cards and personal loans.2Justia. Paying Debts From an Estate and Legal Issues
When the estate cannot cover everything, it is insolvent. Lower-priority creditors receive partial payment or nothing, and heirs receive nothing. The administrator is not personally on the hook for the deceased’s debts just by serving in the role, but they can be held liable if they mishandle assets, pay creditors out of order, or distribute funds to heirs before valid claims are settled.2Justia. Paying Debts From an Estate and Legal Issues
Taxes Heirs Should Know About
Inheriting assets through intestacy does not trigger income tax for the heir in most situations, but a few tax rules catch people off guard.
Stepped-Up Basis
When you inherit property like a home or stock, your cost basis for capital gains purposes resets to the fair market value on the date of death, not what the deceased originally paid. This stepped-up basis under Internal Revenue Code Section 1014 can erase decades of unrealized appreciation. If a parent bought a house for $150,000 and it was worth $500,000 on the date of death, your basis is $500,000. Sell it a month later for $500,000 and you owe no capital gains tax. The rule applies whether or not there was a will.
Retirement Accounts
Traditional IRAs and 401(k) plans are the main exception to the “no income tax on inheritance” idea. Because the original owner never paid income tax on those contributions and earnings, the IRS treats distributions to heirs as taxable income, a category called income in respect of a decedent.3eCFR. 26 CFR 1.691(a)-1 Income in Respect of a Decedent A non-spouse heir who inherits a traditional IRA generally must withdraw the full balance within ten years under current rules, and each withdrawal is taxed as ordinary income. Depending on the account size and the heir’s own earnings, that can push them into a noticeably higher bracket.
Federal Estate Tax
The federal estate tax applies only to estates exceeding $15,000,000 in 2026, a threshold recently increased by the One, Big, Beautiful Bill Act signed into law in July 2025.4Internal Revenue Service. Whats New – Estate and Gift Tax Married couples can effectively double that through portability of the unused exclusion. The large majority of estates fall well below this threshold and owe no federal estate tax at all. A handful of states have their own estate or inheritance taxes with lower exemption amounts, so heirs in those states may still face a state tax bill.
Small Estate Shortcuts
Not every intestate estate needs full probate. Every state offers some form of simplified procedure for smaller estates, though the qualifying thresholds vary widely, from under $50,000 in some states to over $150,000 in others. Two common shortcuts exist.
- Small estate affidavit. For estates below the state’s threshold, an heir can file a sworn statement with the institution holding the asset, such as a bank, along with a death certificate, and claim the property without going to court. Most states require a waiting period of 30 to 45 days after death before the affidavit can be used, and real estate is often excluded.
- Summary administration. For estates above the affidavit threshold but still modest, many states offer a streamlined probate process with reduced court oversight, fewer hearings, and a faster timeline.
These procedures save real time and money, but they work only when the estate meets the size limit and no one contests the distribution. A family disagreement typically bumps the case into full probate regardless of the estate’s value.
Minor Children Without a Will
For parents of young children, dying without a will creates a problem money cannot solve. With no written guardian nomination, a judge decides who raises the children. The court evaluates potential caregivers based on the child’s best interests, weighing emotional bonds, home stability, and the relative’s ability to provide day-to-day care. Family members who want custody have to petition the court, and if multiple relatives compete for the role, the proceeding can turn adversarial and expensive.
The court also keeps authority over anything the children inherit. A separate financial guardian or conservator is typically appointed to manage those assets until the children reach adulthood. The conservator reports to the court, needs permission for major financial decisions, and often has to post a surety bond. In some states the court may authorize moving inherited funds into a custodial account under the Uniform Transfers to Minors Act, which gives the custodian more flexibility to spend money for the child’s benefit without seeking approval for every purchase. The trade-off is that the child generally gains full control of the money at age 18, ready or not.
A will solves both pieces in a single paragraph: you name the person you want raising your children and the person you want managing their money. Without that document, a stranger in a courtroom makes those decisions based on whatever the competing relatives present.