Death Without a Will: Know the Impact and Next Steps

Death without a will can cause deep emotional and financial stress for a family already grieving. Without clear instructions, disputes can arise, relationships can strain, and the legal process can become complex. When there is no will, the law decides who inherits—and those decisions may not reflect the person’s true wishes.

Before accepting that no will exists, families should exhaust all possible ways to locate one. This means searching the home, office, safes, and personal files. Contact any attorneys the deceased may have used. Also, search The U.S. Will Registry, which helps locate wills and provides free will registration for future security. A few hours of searching could change the entire outcome for the family.

Emotional and Practical Effects on Families When There is Death Without a Will

When there is death without a will, disputes inevitably arise when certain family members believe they should inherit more. Stepchildren and long-term partners may feel excluded. The lack of clear instructions can cause:

• Delays in settling the estate
• Increased legal costs
• Fractured family relationships

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What Happens When a Person Dies Without a Will?

The legal term for death without a will is intestacy. When someone has died intestate, state laws—called intestate succession laws—determine who inherits the estate. These laws are specific to each state and may differ widely.

ARTICLE:   UNDERSTANDING THE LAWS OF INTESTACY

“Next of kin” refers to those first in line to inherit under the law. This typically includes:

• A surviving spouse
• Children (biological and adopted)
• Parents
• Siblings
• Extended relatives such as aunts, uncles, nieces, nephews, or cousins

Stepchildren, unmarried partners, and friends rarely inherit under intestacy laws unless specifically named in a valid will. If no legal heirs are found, the estate will “escheat” to the state, meaning the state becomes the owner.

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Each State’s Guidelines for Intestate Succession

Each state’s intestacy laws have unique rules. For example:

• Real estate in another state is handled under that state’s intestacy laws, even if the person lived elsewhere.
• Some states divide assets equally between surviving parents and siblings. Others award everything to the spouse or children.

This is why consulting a probate attorney in the state where the person lived—and where property is located—is essential.

HERE ARE STATE GUIDELINES FOR EACH STATE ON INTESTACY

LEARN MORE ABOUT INTESTATE SECCESSION FOR IMMEDIATE FAMILY MEMBERS

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Non-Probate Assets When Someone Dies Intestate

Not all property goes through probate, even when there is death without a will. Some assets transfer directly to beneficiaries or co-owners without court involvement. These are called non-probate assets, and knowing which ones apply can save time and reduce legal complexity.

1. Property Transferred by Deed

When property is jointly owned, the way it is titled determines what happens at death.

• • Tenancy by the Entirety or Joint Tenancy with Right of Survivorship – The surviving owner automatically inherits the deceased’s share.

  • Tenants in Common – Each owner has a separate share. The deceased’s share passes under intestacy laws, not automatically to the co-owner.

2. Accounts and Policies With Named Beneficiaries

Some assets pass directly to the named beneficiary without probate:

• • Life insurance policies
  • Bank accounts with payable-on-death designations
  • Retirement accounts (401(k), IRA)
  • Certain investment accounts

3. Assets in a Living Trust

If property is held in a living trust, the trustee transfers it to named beneficiaries immediately after death. No probate process is needed for these assets.

ARTICLE:  NON PROBATE ASSETS IN SIMPLE TERMS

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Probate Assets in Death Without a Will

Other assets—those without a deed, beneficiary designation, or trust—must go through probate. The court appoints a personal representative (administrator) to:

• Identify and value assets

• Pay debts and taxes

• Distribute the remaining property according to state intestacy laws

This process can be lengthy, which is why understanding asset type is so important.

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If Someone Dies Without a Will and Is Not Married

When an unmarried person dies intestate, inheritance typically follows this pattern:

1. With children – The estate is split equally among the children. If a child has died, their share goes to their own children (the deceased’s grandchildren).
2. No children – The estate goes to the parents equally.
3. One deceased parent – The estate is split between the surviving parent and siblings.
4. No parents – The estate is divided among siblings equally.
5. No siblings – Nieces and nephews inherit.
6. No close relatives – The estate is split between cousins on each parent’s side.
7. No relatives found – The estate escheats to the state.

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If Someone Dies Without a Will and Is Married

Distribution depends on whether the state follows community property or separate property laws.

• Community property states – All marital property typically goes to the surviving spouse.
• Separate property states – Rules vary:
  • If there are children from the marriage only, many states give everything to the spouse.
  • If there are children from another relationship, the spouse may receive only part of the estate, with the rest going to the children.
  • If there are no children, the spouse may inherit most of the estate, but parents or siblings could also receive a share.

Elective Share Rights for Surviving Spouses

Even if someone dies without a will, surviving spouses in many states have elective share rights. This means a spouse is entitled to claim a specific portion of the estate—often between one-third and one-half—regardless of intestacy rules.

The elective share is designed to prevent disinheritance. It applies in two main situations:

1. No Will Exists – The elective share ensures the spouse still receives a legal minimum portion.
2. Will Exists but Leaves Little or Nothing – The spouse can override the will to claim their statutory share.

The percentage and calculation method vary by state. Some states include only probate assets in the calculation, while others consider both probate and certain non-probate assets. To claim an elective share, the spouse must usually file a formal request with the probate court within a limited time—often 6 to 9 months after death.

Failing to act within the deadline can forfeit these rights. For this reason, surviving spouses should seek legal advice immediately after a death to understand both intestacy laws and elective share protections.

CLICK HERE TO SEE LIST OF ELECTIVE SHARE RIGHTS IN EACH STATE 

Intestate Succession vs. Elective Share

Feature	Intestate Succession	Elective Share
When It Applies	When someone dies without a valid will	When a surviving spouse is left less than their legal entitlement (whether there is a will or not)
Purpose	Distributes assets based on state laws to next of kin	Protects a spouse from being disinherited or receiving too little
Who Can Claim	Spouse, children, parents, siblings, and other legal heirs per state law	Only the surviving spouse
Determines	The order and percentage of inheritance for all eligible heirs	The minimum share a spouse can legally claim
Percentage or Amount	Set by state intestacy rules; varies depending on surviving relatives	Often 1/3 to 1/2 of the estate, or a formula based on marriage length
Includes Non-Probate Assets?	Usually no — applies mostly to probate assets	Sometimes yes — many states use the “augmented estate” which may include certain non-probate assets
State Variation	High — each state has its own intestacy hierarchy	High — percentages, deadlines, and included assets vary by state
Legal Action Required	Probate court follows statutory rules automatically	Surviving spouse must file a claim with probate court, usually within 6–9 months

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Domestic Partnerships and Intestacy

Some states treat registered domestic partners the same as married spouses. These include Connecticut, Hawaii, Nevada, Oregon, Vermont, and Washington. In these states, a domestic partner can inherit under intestacy laws.

However, if the couple is not registered, the surviving partner usually receives nothing unless named in a will.

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Cohabiting or Common Law Marriage Without a Will

Unmarried couples living together face serious risks when one partner dies without a will.

• Cohabiting partners are not recognized under intestacy laws. They inherit nothing unless they co-own property with survivorship rights.
• Common law spouses may inherit only in states that recognize such unions (Colorado, Iowa, Kansas, Montana, New Hampshire for probate purposes, Oklahoma, Rhode Island, Texas, Utah, and Washington D.C.). Even then, proof of the marriage is required.

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Steps to Take When There Is No Will

If no will is found after a thorough search:

1. Contact the probate court in the county where the deceased lived.
2. File for probate as soon as possible to prevent misuse of assets.
3. Work with an attorney familiar with intestacy and elective share laws in your state.
4. Gather documents such as death certificates, property deeds, bank statements, and insurance policies.
5. Secure all property to prevent loss, theft, or disputes.

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Preventing Future Intestacy

The best way to avoid these complications is to create a will now. The U.S. Will Registry offers the most respected, free, and user-friendly online will program in the country. It allows you to:

• Create a legally valid will online
• Register it for free
• Store it securely for future access
• Update it at any time

WRITE YOUR LEGAL FREE WILL NOW WITH:   THE U.S. WILL REGISTRY       

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Final Thoughts

Death without a will leaves important decisions in the hands of state law—not the family or the deceased’s own wishes. While intestacy laws aim to distribute assets fairly, they often leave out partners, friends, and stepchildren.

If someone you love has died intestate, act quickly. Search for a will, understand your state’s inheritance rules, and seek legal guidance. Above all, take steps now to ensure your own affairs are in order, so your loved ones never face the stress and uncertainty of navigating life after your death without clear instructions.

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