Intestate succession is the set of state laws that decide who inherits a person’s property when they die without a valid will. The court opens an estate, appoints someone to manage it, pays the deceased person’s debts and taxes, and then distributes what remains to the closest surviving relatives in an order the statute fixes in advance. A surviving spouse and children almost always stand at the front of the line, but the exact shares depend on who else survived, what kind of property is involved, and which state’s rules apply. Most states follow a framework modeled on the Uniform Probate Code, with their own adjustments on top.1Legal Information Institute. Uniform Probate Code
Which Property Actually Passes Under These Rules
Intestacy rules only control assets the deceased person owned individually with no built-in transfer mechanism. A bank account held in the deceased person’s name alone with no payable-on-death beneficiary, real estate owned as a tenant in common, a vehicle titled solely to the deceased, and personal belongings like furniture or jewelry all fall into this category. A tenants-in-common account is a useful illustration: when one owner dies, that owner’s share goes through probate rather than passing automatically to the other account holders.2Consumer Financial Protection Bureau. What Happens if I Have a Joint Bank Account With Someone Who Died?
A great deal of property skips the process entirely because it already names a recipient. Life insurance proceeds, 401(k) accounts, and IRAs pass directly to whoever the account holder listed as a beneficiary, regardless of whether a will exists.3Internal Revenue Service. File an Estate Tax Income Tax Return Real estate held in joint tenancy with right of survivorship transfers automatically to the surviving co-owner. Assets inside a living trust move under the trust document rather than state intestacy law. If the deceased person set up beneficiary designations and joint ownership carefully, a large share of their wealth may never enter the intestate process at all.
Who Inherits When There Is No Will
The Uniform Probate Code creates a priority list that most states follow in some form.1Legal Information Institute. Uniform Probate Code A surviving spouse comes first in almost every scenario. Under the UPC’s model, the spouse takes the entire estate if the deceased person left no living descendants or parents, or if all of the deceased person’s descendants are also descendants of the surviving spouse and the spouse has no other children. If a parent of the deceased survives but no children do, the spouse receives the first $300,000 plus three-fourths of the balance. If the deceased left children from a prior relationship, the spouse’s guaranteed share drops to the first $150,000 plus half of the balance. States often tweak these dollar figures, but the pattern holds: the more complicated the family, the smaller the spouse’s automatic share.
Whatever portion does not go to the spouse flows down a fixed hierarchy:
- Children and grandchildren inherit first. If a child died before the parent, that child’s share generally passes to their own children.
- If no descendants survive, the estate goes to the deceased person’s parents, split equally if both are alive.
- If no parents survive, siblings inherit. If a sibling died earlier, that sibling’s children may step into the share.
- If no closer relatives exist, the estate splits between the maternal and paternal sides, going first to grandparents, then to aunts, uncles, and cousins.
The search for heirs generally stops at descendants of grandparents. If no one in that range can be found, the property eventually passes to the state.
Adopted Children, Stepchildren, and Half-Siblings
Legally adopted children stand on exactly the same footing as biological children. An adopted child inherits from the adoptive parents and their relatives as if born into the family. Stepchildren do not inherit under default intestacy rules unless the stepparent formally adopted them before death. This surprises a lot of families, because a stepparent who raised a child for decades may have assumed the child would inherit automatically.
Half-siblings fare better. Under the UPC’s model provision, relatives of the half blood inherit the same share they would receive as full-blood relatives. Not every state follows this approach. A handful give half-blood relatives only half the share of a full-blood relative in the same position, so the answer depends on where the deceased person lived.
Per Stirpes vs. Per Capita
When an inheritance has to pass through more than one generation, states use one of two main methods. Per stirpes divides the property by family branch: if one of three children died before the parent, that child’s one-third flows down to their own children rather than being redistributed among the surviving siblings. Per capita at each generation pools the shares of all deceased members in a given generation and splits them equally among the surviving descendants in the next generation down. Per capita tends to produce more equal results among grandchildren; per stirpes preserves the original branch structure. The method your state uses can shift thousands of dollars between family members.
How Community Property Changes the Spouse’s Share
Roughly nine states follow community property rules, treating most assets earned during a marriage as jointly owned by both spouses regardless of whose name is on the account. When someone dies intestate in a community property state, the surviving spouse keeps their own half of the community property outright. Only the deceased person’s half runs through intestate succession, and in many of these states that half also goes to the surviving spouse. The result is that the surviving spouse often ends up with all of the marital assets.
Separate property, meaning anything owned before the marriage or received as a gift or inheritance during it, follows the standard intestacy hierarchy. In common law states, which make up the majority, there is no automatic 50/50 split of marital property. The surviving spouse receives whatever the state’s intestacy statute provides, which might be the entire estate or as little as one-third depending on who else survived. In a community property state, sorting community property from separate property is one of the first tasks the administrator has to handle.
How an Intestate Estate Gets Settled
The process starts with a petition filed at the local probate or surrogate court in the county where the deceased person lived. The petitioner asks the court to open an intestate estate and to appoint an administrator, sometimes called a personal representative. Filing fees vary, and courts also usually require certified copies of the death certificate. The petition includes a list of all known heirs with their names, addresses, and relationships to the deceased. Errors or gaps in that list are the single most common cause of early delays.
After a brief hearing, the court issues Letters of Administration, which give the administrator legal authority to access bank accounts, manage real estate, and handle debts. Many states require the administrator to post a surety bond first. The bond protects heirs and creditors against mismanagement, and the premium is paid from estate funds. Bond amounts generally track the value of the estate.
Notifying Creditors
Once appointed, the administrator must publish a notice to creditors in a local newspaper, and in many states also mail direct notice to known creditors. This triggers a limited window, generally three to seven months depending on the state, for creditors to file claims. Claims filed after the deadline are usually barred. The administrator reviews each claim, pays valid ones from estate funds, and can challenge claims that look inflated or fraudulent.
If the estate cannot cover every debt, payments follow a priority order that is broadly similar across states. Administrative costs come first, then funeral expenses, then debts with federal tax priority, then medical bills from the final illness, then state-priority debts, and finally everything else. Heirs receive nothing until valid creditor claims and taxes are satisfied.
Final Accounting and Distribution
After debts are paid, the administrator prepares a final accounting detailing every dollar received, spent, and distributed. The court reviews it and, once satisfied, issues an order authorizing distribution to the heirs under the state’s intestacy formula. Only at that point do heirs actually receive their inheritance. From petition to closing, the full process commonly runs between nine months and two years for moderately complex estates.
Taxes and Costs That Come Out First
Three separate tax obligations can arise when someone dies intestate. The deceased person’s final individual income tax return, Form 1040, covers income earned from January 1 of the year of death through the date of death and is due by the normal April deadline the following year.4Internal Revenue Service. File the Final Income Tax Returns of a Deceased Person If the estate itself generates more than $600 in gross income during any tax year while it remains open, the administrator must also file Form 1041, the federal income tax return for estates.3Internal Revenue Service. File an Estate Tax Income Tax Return Interest on bank accounts, rental income from estate-owned property, and dividends from investment accounts commonly push an estate over that threshold.
Estates valued above the federal estate tax exemption owe federal estate tax. For deaths in 2026, the basic exclusion amount is $15,000,000, which means federal estate tax reaches relatively few families.5Internal Revenue Service. What’s New – Estate and Gift Tax State-level estate or inheritance taxes kick in at much lower thresholds in about a dozen states, sometimes as low as $1 million. The administrator is personally liable for filing the required returns and paying the tax from estate assets before distributing anything to heirs.
Probate is not free. Attorney fees are usually the largest expense, charged hourly, as a flat fee, or in some states as a statutory percentage of the estate’s gross value. States using statutory percentages generally start around 3–4% on the first $100,000 and scale down from there. Total professional costs, including attorney fees, administrator compensation, court filing fees, appraisals, and bond premiums, commonly run 3% to 7% of the estate’s gross value. Administrator compensation varies by state, and when the administrator is a close relative they often waive it, though they are not required to.
Shortcuts for Smaller Estates
Every state offers a shortcut for estates below a certain value, and the thresholds are more generous than many people expect. Depending on the state, estates worth anywhere from $15,000 to $300,000 in eligible assets can qualify for a simplified process.6Justia. Small Estates Laws and Procedures: 50-State Survey
The most common shortcut is the small estate affidavit. An heir fills out a sworn statement, has it notarized, and presents it directly to banks, employers, or other institutions holding the deceased person’s property. Most states that offer this option require no court filing. The heir typically has to wait at least 30 days after the death before using the affidavit, and no one else can have already filed for formal probate. The affidavit usually works only for personal property like bank accounts, wages, and belongings. Real estate generally cannot be transferred this way.
For estates too large for an affidavit but still simple, many states offer summary administration, a shortened version of formal probate with less court oversight and faster timelines. Checking your state’s small estate threshold before hiring an attorney can save the estate thousands of dollars.
When No Heirs Can Be Found
If a thorough search turns up no living relatives, the estate goes through escheat, meaning the property passes to the state. Before that happens, the administrator must show genuine effort to find heirs: searching the deceased person’s personal records, contacting known acquaintances, writing to last known addresses, running public records searches, and sometimes publishing notice in newspapers. The required level of effort scales with the size of the estate.
Escheat is not always the end. States hold escheated property as custodians rather than outright owners, and most will return the funds if a rightful heir later comes forward with proof. Many maintain searchable unclaimed property databases for exactly this reason. Heirs who discover a relative’s unclaimed estate years later still have options worth pursuing.