Intestate Succession

Intestate succession is what happens to a person's property when they die without a valid will, or when a will exists but does not dispose of everything. The word intestate describes the person or the estate; intestacy describes the body of law. That law is written by each state, applies to the estate of a person who was domiciled there, and applies separately to real estate according to the law of wherever that real estate sits. There is no federal intestacy statute and there is no national default, so the question "who inherits if I die without a will" has fifty-odd answers rather than one.

What every version has in common is the shape: a fixed order of relatives, applied mechanically, taking no account of the decedent's relationships, intentions, promises or estrangements. A statute cannot know that one child provided years of care while another has not been seen in a decade, or that the person who mattered most was never a relative at all. That is the real cost of intestacy, and it is a cost of substituting a schedule for a decision rather than of any particular schedule being unfair.

Intestacy reaches only the probate residue, which is why some people with no will still pass most of their wealth exactly as they intended. Beneficiary designations on retirement accounts and life insurance, jointly held property with a right of survivorship, payable-on-death and transfer-on-death registrations, and assets already titled in a funded trust all transfer under their own instruments and never enter the estate the intestacy statute governs. So a person whose wealth sits almost entirely in a 401(k) with a current beneficiary form and a house held jointly with their spouse may leave very little for intestacy to decide. The inverse is equally true: someone whose assets are a solely titled brokerage account, a car and a house in their name alone leaves nearly everything to the statute. The practical question is therefore not "do I have a will" but "what would be left for a will to govern," and the answer varies enormously between two households with the same net worth.

The belief that a surviving spouse takes everything is the single most common and most expensive misunderstanding, and it is false in many states. The share frequently turns on two facts: whether the decedent left descendants or parents, and whether the children are shared with the surviving spouse. Michigan, one of the states that has adopted the Uniform Probate Code, is a useful illustration of the shape. Under its statute the spouse takes the entire intestate estate only where no descendant and no parent of the decedent survives. Where all the decedent's surviving descendants are also descendants of the surviving spouse and the spouse has no other descendants, the spouse takes a fixed dollar amount set by the statute plus half the balance. Where no descendant survives but a parent of the decedent does, the spouse takes the fixed amount plus three quarters of the balance, so a surviving parent takes a quarter ahead of the spouse's full share. And where none of the decedent's surviving children are the surviving spouse's, the fraction stays at half but the fixed amount itself is lower, so a blended family changes the spouse's share through the part of the formula nobody reads.

That is one state's schedule, offered to show the structure rather than the rule. The fixed dollar amount, the fractions, whether parents rank at all, and how a blended family is handled all differ from state to state, and a state that has not adopted the uniform act may organize the whole question differently. What generalizes is only the lesson: the spouse's share is a function of who else survived, and it is very often not the whole estate.

The order below the spouse, in the shape most states use. Descendants come first, taking by representation so that a grandchild generally steps into the place of a parent who died before the decedent. If no descendants survive, parents. Then the parents' descendants, meaning the decedent's siblings and their children. Then grandparents and their descendants, which reaches aunts, uncles and cousins. Some states stop at a defined degree of kinship and some keep going. Only when the statute is exhausted does property escheat to the state, which is why the folk belief that "the state takes it" is usually wrong: statutes reach a long way out before that point, and an unwilling heir the decedent had never met is a far more likely outcome than escheat.

The people an intestacy statute cannot see. An unmarried partner, however long the relationship, is generally not on the list at all, and this is the single biggest exposure for couples who never married. A stepchild who was never legally adopted is generally not a descendant. A close friend, a caregiver, a godchild and a charity are all outside it. Nothing about the length or quality of the relationship changes that, because the statute operates on legal status.

Where the details diverge sharply and no national statement is safe. Whether half-siblings share equally with whole siblings. Whether a non-marital child inherits from a father, and what proof is required. How an adopted child relates to both the adoptive and the biological family. Whether a person who survives the decedent by only a few hours is treated as having survived at all, which many states resolve with a fixed survival period. And in community property states, how the marital half of the property interacts with the intestacy rules for the rest. On each of these the sensible posture is to look up the governing state rather than to carry a general answer.

Two consequences beyond who gets the money. An intestate estate still goes through probate, and the court appoints an administrator to run it because there is no nominated executor, which frequently means a family member applying for authority the decedent never granted. And where minor children survive, the court selects their guardian without a nomination from the parent to guide it, which is the consequence parents most often say they would have written a will to avoid.

How an intestate estate is actually settled.

1. Work out what is in it. Everything with a beneficiary designation, a survivorship co-owner, a transfer-on-death registration or a trust title is removed first. What remains is the intestate estate.

2. A court appoints an administrator, since there is no will nominating anyone, and issues the authority needed to collect and transfer property.

3. Debts, expenses and taxes are paid from the estate before anyone inherits.

4. The statutory schedule is applied to what is left, in the order the state prescribes, and distribution is authorized by the court.

A hypothetical example, using the structure of one state's schedule to show why the answer surprises people. Marcus dies without a will, survived by his wife Adaeze, two children of their marriage, and his mother. His assets are a $400,000 retirement account naming Adaeze, a house held jointly with her, and a $300,000 brokerage account in his name alone.

The retirement account passes to Adaeze under the beneficiary form and the house passes to her by survivorship. Neither is touched by intestacy. Only the $300,000 brokerage account is the intestate estate.

Because Marcus left descendants, a schedule of the Michigan type would not give Adaeze the whole of it. She would take a fixed dollar amount set by statute plus half of the remaining balance, with the other half passing to the two children in equal shares. Marcus's mother would take nothing in this version, because descendants survive; had there been no children, she would have taken a quarter of the balance after Adaeze's fixed amount.

Two things are worth noticing about the outcome. Adaeze receives most of the estate's value, but that is because of the beneficiary form and the joint title rather than because of the intestacy statute. And the children receive money outright at whatever age they happen to be, which is a result no parent chooses on purpose and which a will or a trust could have shaped.

What intestacy does provide

• The statute supplies an answer where the decedent supplied none, so property is not left with nobody entitled to it and the court has an order to apply.
• The order approximates what many people would choose, prioritizing a spouse and children, which is why the outcome is often close to acceptable for a simple family.
• Statutes reach far through the family tree before property goes to the state, so escheat is genuinely rare.
• Representation rules mean a grandchild generally inherits in place of a parent who died first, without anyone having to draft for it.

What it cannot do

• It knows only legal status, so an unmarried partner, an unadopted stepchild, a caregiver, a friend or a charity receives nothing whatever the relationship was.
• The spouse's share is often not the whole estate, and a surviving parent or a child from another relationship can take a substantial slice.
• Minors inherit outright, at the age they happen to be when the estate closes, with no trust or staged distribution.
• The court, rather than the parent, chooses a guardian for surviving minor children.
• There is no nominated executor, so someone has to apply to administer an estate they were never asked to run.
• The rules vary enough between states that a family cannot reliably predict the outcome, and moving states changes the answer without changing anything else.