Dying Without a Will: Who Gets Your Stuff and Why You Should Care

Despite the ease of creation and low cost, most Americans don’t have a will.

Dying without a will usually leads to intestacy, a court procedure for asset distribution. The court splits the deceased’s assets under the inheritance law. Often, assets end up with family members the deceased may not have chosen, creating potential conflict and unintended outcomes.

Without a will, you don’t control who inherits your estate. What’s more, the intestate process is likely to place a financial burden on those left behind.

But before discussing the financial and tax implications of intestacy, let’s explore how inheritance law works. Local variations apply, but the general principles hold true.

Intestacy: What Happens When You Die Without a Will?

When someone passes away without a will, it’s referred to as dying intestate.

But what does dying intestate mean?

Simply put, the court takes charge of distributing the deceased’s assets — money, property, and personal belongings — based on local laws.

Loved ones can’t automatically inherit everything, and the court’s decisions may not reflect the deceased’s wishes. While certain assets, like jointly owned accounts or life insurance with named beneficiaries, bypass court proceedings, the rest go through a lengthy and expensive legal process.

Who Inherits When You Die Intestate?

When dying without a will, each state’s intestacy laws determine the direct heirs. But intestacy inheritance rules vary, impacting the distribution between spouses, children, or both.

Typically, a surviving spouse and children are first in line, but how assets are divided depends on state laws and court interpretation.

If You Are Single

If someone dies without a will single, the estate distribution follows state intestacy laws.

Here’s how assets may be distributed:

• No children, no parents: Assets go to siblings or their descendants.
• Parents are alive: Assets are divided equally between them.
• One parent alive: The surviving parent receives everything.
• No siblings or parents: Assets may pass to extended family like grandparents, aunts, uncles, or cousins.
• No living relatives: The estate could be claimed by the state.

Understanding these laws can help ensure your assets go to those you choose by creating a will.

If You Are Married

If a wife or husband dies without a will, the distribution of their estate depends on whether they have children or other relatives.

Here’s how it may play out:

• Spouse only: The spouse typically inherits everything.
• Spouse and children: The estate is usually split between the spouse and children.
• No children, surviving parents: The spouse may inherit most of the estate, with a portion going to the parents.
• No children, no parents: The spouse inherits everything.

These rules may vary by state.

If You Are in a Domestic Partnership

Not all states recognize domestic partnerships when a parent dies without a will. However, some states that do provide inheritance rights for domestic partners include:

• California
• Oregon
• Nevada
• Maine
• Washington

In states that don’t recognize domestic partnerships as a legal union, assets may go to biological family members, leaving partners without legal claims.

Non-Probate Assets

Non-probate assets are those that bypass the probate or intestate processes and go directly to beneficiaries upon death.

These include:

• Life insurance policies
• Modified life insurance
• Property transferred via a deed (including to a living trust)

Such assets aren’t typically covered by a will, as they have designated beneficiaries. 

For example, if you transfer property before death using a transfer-on-death deed, it passes directly to the named individual. Even if no will is present, the property won’t enter into the intestate proceedings passing assets to each beneficiary faster and with fewer legal hurdles.

Understanding How the Law Decides: Intestacy Process

When someone dies without a will, the probate court steps in to manage the estate through the intestacy process.

First, the court appoints an administrator to handle the estate. Among other things, the administrator must:

• Identify evaluate assets
• Pay off debts and taxes
• Distribute the remaining assets according to state intestacy laws

Without a will, this process can face delays, increased legal fees, and court costs, which can reduce the inheritance for loved ones.

Potential Tax Implications of Intestacy

The tax implications of dying without a will could be higher inheritance taxes, as intestacy laws don’t provide for tax-saving strategies.

Without a will, beneficiaries may lose valuable opportunities to minimize taxes. It’s essential to seek advice from a tax professional for tailored guidance.

Increased Complexity for Tax Filers

When intestacy occurs, the added complexity can significantly increase tax preparation costs for beneficiaries and the estate.

Without a will, identifying and valuing assets becomes more difficult, leading to a more time-consuming and costly tax filing after death.

Additionally, taxes on inheritance may be higher due to the lack of strategic estate planning. A clear will simplifies the process, ensuring a smoother and less expensive tax filing experience for all parties involved.

Create a Will or a Living Trust

Creating a will is an important step to make sure your assets, including digital assets and inheritance, are distributed according to your wishes.

Writing a will is easier than many think, and it’s a crucial safeguard for managing your online accounts after death.

If you’re looking for even more control over your estate, consider setting up a living trust, which allows assets to transfer directly to beneficiaries without the need for probate. Both options offer peace of mind and protection for your loved ones.

Ready to take the next step?

Taking Control Now Matters Most

Taking control of your estate, no matter its size, is crucial.

Dying without a will leaves your assets in the hands of the court, which may not align with your wishes, nor the wishes of your loved ones. Creating a will gives you the security and peace of mind that your assets will be taken care of as you deem fit.

The benefits of having a will include protecting your family from unnecessary legal complications and ensuring your wishes are honored.