Intestacy is defined as the state of dying without having a will.  The estate of any individual who dies intestate (i.e. dies without leaving a will behind) must go through the probate court.  The intestacy laws of the state will then determine who will be the beneficiaries of the deceased’s assets.  The beneficiaries will be any living relatives of the deceased.

Every state has its own set of intestacy laws that determine who will inherit the assets of an individual who dies without a will.  Intestacy law refers to the group of laws that ultimately determine which individuals are entitled to the assets of the deceased under the state’s rules of inheritance.

When an individual dies without leaving behind a will, his or her estate passes on to any heirs or groups of family members by intestate succession, which is described in individual state laws.  Intestate succession allows for the distribution of the deceased’s assets in an organized and systematic manner.

Which Individuals Receive the Assets by Intestate Succession?

Intestate succession laws vary greatly from state to state.  These laws typically establish a hierarchy of individuals who may inherit assets left behind by an individual who died without having a will.  This hierarchy is based on the individuals’ relationship with the deceased.  In general, intestacy laws state that those individuals most closely related to the deceased will inherit the assets.  The hierarchy includes the following:

  • Spouses inherit at least part of the estate of an individual who had no will.  If the couple had no children, then the surviving spouse usually inherits the entire estate, no matter how many other surviving relatives are around.
  • Cohabitation and Common-Law Marriage. Most state intestacy laws do not recognize partners who cohabited with the deceased or were part of a common-law marriage.  Therefore, these individuals will not inherit any of the assets.
  • Any descendants of the deceased, including children and grandchildren, typically inherit at least part of the estate.  If the deceased has no surviving spouse and three adult children, the estate would be split evenly between the three children.  If there is a surviving spouse, he or she typically receives part of the estate, and the children split the remainder of the assets.
  • Adopted and Stepchildren. Adopted children are treated the same as any biological children.  However, stepchildren do not have inheritance rights under intestacy law.
  • Parents and Siblings. The deceased’s parents typically inherit the assets of an Individual who had neither a spouse nor children.  However, if there are no surviving parents, the assets will be split evenly among any siblings.
  • Distant Relatives. In cases where the deceased had no close relatives, then more distant relatives such as cousins, aunts, uncles, or grandparents will inherit the assets.  If none of these exist, the assets will go to relatives that are even more distant.
  • The state will do everything possible to find any living relatives of the deceased.  However, in those rare cases when no relatives can be found, the state inherits the assets.  This situation is called escheat.

Other Issues around Intestacy

If there is no will naming an executor for the estate, the probate court will assign an administrator for the estate.  If the deceased had any minor children, the state would assign a guardian.  Typically, the sate considers what the best interest of the children is.  Therefore, in the majority of situations, the state will appoint a relative as guardian of the children.  If there are no relatives able or willing to take on the role of guardian, the state may place the children in the foster care system.

Avoiding Intestacy

Clearly, the way to avoid intestacy is to write up a last will and testament.  This allows you to make the decisions regarding who will inherit your estate, rather than letting the state make those decisions for you.