If you die without a last will, it means you didn’t put any legal procedures or paperwork in place to show what should happen to your estate and assets if you die. Since there is no outline of where you want your belongings to go, the court will have to decide what to do with your property and assets.
How things will be divided and to whom will depend on the intestacy laws in your state. Intestacy simply means the rules that apply when someone dies without a will.
What Does It Mean to Die Intestate?
To die intestate means that someone has died without a will. They did not leave any paperwork or guidelines for what should happen to their estate and assets after they die. In this case, the intestacy laws of the state the person lived in will decide what happens to the estate.
If the person owns real estate or other properties in other states, then that state’s rules apply. So, there are often different courts and different states involved depending on the person’s estate size.
There are also laws of intestate succession that will determine how the estate will be passed on and who will gain control of it after the person has died. The laws and who will receive the estate will depend on whether you were single, married, or had children. In most cases, the property is split into shares with the heirs who are surviving relatives, including:
- Aunts and uncles
- Distant relatives in some cases
If there are no surviving relatives, the estate might go entirely to the state.
What Are the Risks of Not Leaving a Last Will?
The risks of not leaving a last will are numerous. The biggest one is that your estate and assets might not go to the people who deserve them the most, or they might not be awarded to the people you want to have them. If you have children that are not adults, they might be appointed a guardian who you don’t think should be in charge of taking care of them.
Not leaving a will can also start family feuds. It’s common for people to start fighting about the estate and assets of a deceased loved one. Everyone thinks they are entitled to something, and not everyone will agree with the other person. This is an easy way for family fights to start and to make family members enemies of each other.
To avoid this kind of fighting and issues, it’s best to leave behind a will before you die. This way, the court will take care of dividing the assets, and you can be sure everyone is awarded what you want.
Who Will Be in Charge of the Estate?
Since there is no will, the state law will have to provide a list of people who are eligible to be named as an executor and who can take the will to probate court. In most states, the role will be filled by a spouse or domestic partner. If there is no surviving spouse, the adult children will usually be named as the executor. The person assigned can always give up the responsibility if they don’t want it.
What Happens to the Estate of the Decedent?
What happens to the assets when the person dies without a will depends on their marital situation and if they have children. Below, you can find the common situations of what could happen if you were to die without writing a last will.
If a Person Was Single
If you do not have a will and are single, your parents will inherit the entirety of your estate if they are still living. If you have one surviving parent and siblings, the property will be split among them. This usually includes half-siblings but not step-siblings.
If both parents are deceased, then the siblings will have the estate split evenly among them. If there are no surviving parents or siblings, the property may go to nieces and nephews. If there are no surviving relatives, one half of the estate will go to the mother’s side of the family, and the other half will go to the father’s side.
If you are single and have children, your entire estate will go to the children in equal shares. If you had a child that passed away before you, the estate will go to the grandchildren if there are any.
If a Person is Married
If your estate is solely yours when you die, it will probably be split between the surviving spouse, your siblings, and your parents. If you are married and have children with your current spouse, the entire estate will go to the surviving spouse.
If the children are not the kids of the current spouse, half the estate will usually go to the children, and the other half will go to the spouse.
If the estate and assets are in the name of the married couple, the surviving spouse will inherit the entire estate and the assets.
If a Person Has Minor Children
If there is no will when you pass away, the court will appoint a guardian for your minor children. In most cases, it will be a relative who will be appointed guardianship over them. If you are worried about who might take care of your children if you pass away, you must ensure you write a will and state who will have custody of the children in the document.
If the children are not adults, the estate will usually be in the care of the guardian until the children become of age, and then it will split evenly between them. If the children are already adults, the estate will be shared evenly between them.
If a Person Has a Domestic Partner
Domestic partners can have some legal rights depending on the state they reside in. In some states, a domestic partner will inherit the same rights to the estate as a spouse. It will depend on how you own the property and whose name is on the titles.
Not all states recognize domestic partnerships, so you will need to check with the state you live in. If the state you reside in does not have domestic partnership rules, you might want to consider drafting a will that includes what your domestic partner will receive in the case that you die before them.
In most states, the property and assets will go to relatives only. The partner will not usually inherit anything from the partner who has died.
If you live with your partner but are not married, you must make a will that clearly states you want some of your property or estate to go to them after you die. Otherwise, they might end up not being able to have any legal rights to the place you live in together if only your name is on the titles and deeds.
What If There Are No Surviving Heirs?
If there are no surviving heirs, there is no place for the estate and the assets to go to when the person passes away. In this case, the entire state will usually go to the state. Remember that heirs can include the relatives of original heirs. In most cases, there is an heir of some kind, even if it might be a very distant relative or someone adopted into the family.