What Happens When a Person Dies Without a Will

By: LawInfo

Published: 11/2008

If you want to make sure that your property is distributed according to your personal wishes at the time of your death, then it is important to have a properly drafted and executed will. However, the law recognizes that there will be some cases when a valid will is not in place at the time of a person’s death and that a decedent’s property will need to be distributed according to the state’s default laws of distribution, known as intestacy laws.

There are many circumstances under which a person would not have a valid will at the time of his or her death. A person may die young and unexpectedly or the person may simply have procrastinated and never got around to the unpleasant, yet important, task of drafting a will. Or, the person may have drafted a will that is later found to be invalid and unenforceable.

In those situations where a person does not have a valid will at the time of his or her death, his or her property will be distributed according to state intestacy laws. Each state has its own intestacy laws. While all of the states have the primary objective of trying to distribute a decedent’s estate to his or her next of kin, the states interpret that objective differently and distribute property to different relatives in different percentages.

The distribution of property in an intestate estate depends both on the state in which the estate is probated and the relatives that have survived the decedent. Most, if not all, states will provide a surviving spouse with a percentage of the estate. If the decedent had living children then they are also likely to receive a percentage of the estate. That percentage may be higher if the children are the issue of the decedent but not the surviving spouse. Some states also allow surviving parents to receive a portion of the estate.

If the decedent dies without a spouse or children then the estate often goes to the decedent’s parents if they are still living. If they are not living then the property goes to the siblings of the decedent, if any. If there are no siblings then the property could go to surviving grandparents or to the issue of the grandparents (usually the aunts, uncles or cousins of the decedent.)

If there are no living relatives who can be located to inherit the estate then the proceeds of the estate usually revert to the state in which the decedent’s estate was probated.

It is important to note that the laws of intestacy only apply to probate property that is part of the decedent’s estate. Any property that was held jointly such as property, bank accounts or brokerage accounts is not part of the probate estate. Likewise, life insurance proceeds are not part of the estate and instead go to the stated beneficiary.

Intestacy laws are not perfect. They may not distribute your property according to your wishes. However, they do their best to distribute property fairly and in accordance with the priority of family relationships in the absence of valid written directives from the decedent.