What Happens if You Die Without a Will?

Learn how intestacy laws affect how assets are divided

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Having a will can ensure your estate will be divided among your heirs in the way you’d like after you die. If you die without a will, or “intestate,” your assets will still be distributed to your heirs, although perhaps not exactly how you’d choose. That’s because when you have no will, the courts decide who receives your assets and how much each heir receives. However, creating a will can be challenging.

“The subject matter is the biggest obstacle to creating a will,” Linda Amato, founder of Amato Law, told The Balance in a phone interview. “People don't want to deal with their mortality, death isn’t a pleasant subject, and the process stirs up emotions about the relationships.”

Let’s look in closer detail at the consequences of dying without a will, including what happens if you die without a will when you’re single or in a domestic partnership, as well as if one spouse dies without a will. Also learn about tips for writing a will and some of the key benefits of creating this legal document.

Key Takeaways

  • A will provides instructions for how to divide your property after you die.
  • Without a will, a court and judge will decide who receives your assets.
  • Domestic-partnership laws may not ensure your partner receives assets if you die without a will.
  • If you’re a single parent or business owner, it may be particularly important to have a will.

How a Will Protects Your Beneficiaries

A will names the beneficiaries who will receive your estate as well as who will manage and distribute your assets, Somita Basu, a partner at Norton Basu, told The Balance in an email. Beneficiaries, or heirs-at-law, are individuals with the legal right to inherit your assets.

If you don’t have a will specifying how your assets should be distributed to beneficiaries, then your estate will go through a court process called probate. “It is a lengthy, costly, and time-consuming process,” Basu said.

In these cases, the probate court appoints an administrator or representative to manage your financial affairs after your death. You don’t choose this person. The administrator collects assets and pays debts and expenses for the deceased. Then they distribute the remaining estate to the beneficiaries according to state law, which can be a lengthy process because it’s supervised by the probate court.

The end result is that your assets will go to beneficiaries named by the court, not named by you. For example, your property could go to a family member whom you don’t want to receive it, and not a non-relative whom you want to have your assets.


A will can also help your beneficiaries find your accounts and property so it’s not overlooked, Sabine Franco, founder of The Ambitious Legacy Firm, told The Balance in an email. “Without a plan, wealth can remain undiscovered," she said.

If you co-own a business as a single person and die without a will, you leave your business partner vulnerable, Franco said. Your half of the business could be passed on to an heir you didn’t choose—which could lead to litigation.

State Intestate Laws Vary

What exactly happens to your assets when you die without a will varies by state. Often, courts use a by-the-numbers formula for determining where your assets should go, determined by state intestate laws.

For example, in New York, if you die without a will and have a spouse and no children, your spouse inherits everything. If you have children but no spouse, the children inherit everything. If you have a spouse and children and die without a will, your spouse inherits the first $50,000 plus half of the balance of your estate. Your children inherit everything else.

Depending on state law, others who could be granted your accounts and assets include your:

  • Stepchildren
  • Parents
  • Siblings
  • Nieces and nephews
  • Cousins
  • Grandparents

Taxes on your remaining estate differ by state. For example, if you die without a will in Mississippi, estate taxes aren’t collected. If you die without a will in Illinois, estate taxes are collected.


If you own real estate in various states, these properties will be subject to separate probate in each state, Basu said. Each state has its own process, timelines, and costs associated with probate.

Single People Who Die Without Wills

Establishing an estate plan may be particularly important if you are a single parent. If you pass away without a will, the courts will base the decision on who will raise your children on the law, not your preference, values, or relationships.

Without a will, a probate court judge decides, for example, who will manage your affairs, inherit your money, care for your pets, and raise your children.


Some assets can be transferred without a will. For example, a retirement plan or life insurance policy can have a named beneficiary for the account. Or real estate might be able to avoid probate court, depending on state laws and title.

Single people can benefit from naming a beneficiary on financial accounts as they will receive payment automatically after the bank receives proof of death, even if they are unrelated. However, creating a trust containing those accounts can help preserve assets, reduce tax issues, and prevent your beneficiaries from squandering their inheritance.

What if One Spouse Dies Without a Will?

What happens when one spouse dies without a will can depend both on state laws and whether or not they have children.

For example, if you die without a will in California and have children, your spouse will typically inherit one-half of your community property and one-half to one-third of your separate property. If you do not have children or surviving parents, your spouse will inherit your entire estate. Other states may distribute assets differently.

California is a community-property state, which means property acquired during the marriage is owned by both spouses, even if only one spouse’s name is on the title for the property. Other community-property states include Arizona, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

In blended families such as second or third marriages with stepchildren, dying without a will can lead to a contentious and emotional process for families.


Many states that are not community-property states attempt to prevent the disinheritance of a spouse through “elective share” laws.

What if One Domestic Partner Dies Without a Will?

Some states apply inheritance laws on marriage to domestic partnerships, while other states that recognize domestic partnerships may not recognize inheritance rights. So a domestic partnership is not always an ideal substitute for a will.

For example, in New York, domestic-partnership rights include certain health insurance benefits, housing, and visitation, but not inheritance rights. “Because a domestic partner [in New York] is not considered a spouse, a surviving domestic partner does not have any inheritance or life insurance rights, absent a specific bequest in a will,” Amato said.

A few states recognize common-law marriage, which has the same legal rights as a marriage that has a license. States with some form of a common-law marriage include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. These informal marriages may lead to distribution of assets to one domestic partner after their partner’s death.

How To Write a Will

Working with an estate-planning professional can help ensure your will is valid, but you can also write your own will using computer software or online programs. If you write your own will, make sure the document is signed and dated. Depending on your state laws, you may be required to have it witnessed by two people who don’t receive anything from the will’s terms.


Review your state’s laws regarding notarizing your will. For example, California does not require the notarization of wills.

Many people believe they need a simple will until they get into the process and learn more about important issues, Amato said. Basic online-will questions may not address, for example, tax planning, special-needs planning for a minor child, international property, or unique state situations.

Consider consulting with a professional attorney to help you draft your will to ensure it meets all your needs.

Frequently Asked Questions (FAQs)

What is it called when someone dies without a will?

When someone dies without a will, they have died “intestate.” Each state has its own intestacy and intestate heir laws that dictate who is eligible for the deceased’s assets.

How do you make a will without a lawyer?

You can create a will using online services or software. Some states even allow verbal and handwritten wills in certain circumstances. However, legal advice can ensure your will is valid. Yours may not be valid if it doesn’t comply with state law. If you move states or own property in different states, your assets may not go to the beneficiaries you wish unless your will was written properly.

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The Balance uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. California Courts. “Wills, Estates, and Probate.”

  2. New York State Unified Court System. “Intestacy - When There Is No Will.”

  3. IRS. “Publication 555 (Rev. March 2020).”

  4. Texas State Law Library. "General Information - Community Property.”

  5. Cornell University, Legal Information Institute. “Elective Share.”

  6. Social Security Administration. “SSA - POMS: PR 05005.035 - New York - 04/15/2019.”

  7. National Conference of State Legislatures. “Common Law Marriage by State.”

  8. The Maryland People’s Law Library. “Frequently Asked Questions About Wills.”

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