What Happens When You Die Intestate or Without a Will?

A will, or a last will and testament, is a legal document that outlines your wishes for after you pass away. Within a will, you can specify various important matters, including guardianship arrangements, the distribution of your assets and the appointment of an executor to oversee the handling of your estate.

A will is an important document for effective estate planning. However, some people pass away without ever writing a will, leading to a situation known as “dying intestate.” When someone dies intestate, their assets are subject to intestate succession laws.

What challenges does dying intestate present to settling an estate and distribution of its assets? Let’s examine the process in greater detail.

Intestate definition

“Intestate” is the legal term that’s used when someone passes away without having created a valid will to specify how their assets and interests will be handled after death. In this case, decisions regarding the person's estate become the responsibility of a probate court. Probate is the legal process for managing and distributing a deceased person's assets.

Even with a will, your estate may still go through probate, but your will would guide the process. Without a will, the probate court follows a set of predetermined rules and guidelines, known as intestate succession laws, to determine how a person's assets will be distributed.

The intestate succession process

Although intestate succession laws vary from state to state, the principles and processes behind them are similar. (An estate planning attorney can help you learn more about the process and your state’s specific laws).

Here’s a breakdown of the intestate process:

Role of the probate court

The probate court will appoint an administrator — often a close relative, like a spouse or child — to manage the deceased’s estate. The administrator's responsibilities may include creating an inventory of the deceased's person's assets, settling outstanding debts and allocating the remaining assets to beneficiaries.

The probate court will also resolve any disputes that may arise during asset distribution.

How assets are distributed

Assets are distributed following a predetermined hierarchy that prioritizes the deceased’s next of kin. Typically, the surviving spouse is the first in line to inherit assets — followed by children, parents, siblings and extended family. If no immediate family can be identified, the assets become property of the state.

Intestate succession typically only applies to individuals linked to you through familial ties or marriage. This means friends, unmarried partners, business associates and charities aren’t part of the list of eligible beneficiaries under intestate succession laws and are unlikely to be included in the distribution of assets through probate.

Non-probate vs. probate assets

Not all personal assets must go through probate court when a person dies intestate. Factors such as property type, beneficiary designations and ownership can all influence whether an asset bypasses probate. For example, assets in a living trust typically avoid probate because they are managed and distributed according to the trust’s instructions.

Other examples of non-probate assets include:

• Life insurance policies
• Retirement accounts
• Joint bank accounts

Challenges of dying without a will

Having a will ensures that your assets are handled according to your wishes upon your death. Without a will, your loved ones may face uncertainty and potential disputes over how your estate should be distributed. The probate process may also take longer without a will, which could delay asset distribution. In some cases, this could create financial hardships for beneficiaries.

Furthermore, a will allows you to designate trusted legal guardians to care for your children. Without a will, the court may decide guardianship of your minor children – a decision that could be contrary to your preferences.

How legal insurance can help

You can help avoid intestacy by making a will. Legal insurance can assist you in the process by connecting you with experienced attorneys who specialize in estate planning or by even enabling you to make a will digitally. Estate planning attorneys can help you draft and review your will, as well as update it. They can also address any questions or concerns you may have during the process and make sure your will complies with state laws.

You can enroll in legal insurance during your employer’s open enrollment period — typically in October and November. For more information, consult with your company’s human resources (HR) department.