Understanding the Laws of Intestacy
Laws of intestacy are state-enacted statutes that govern how a person’s property is distributed when they die without a valid will. These rules are not discretionary. They are codified in each state’s probate code and enforced by probate courts. When someone dies intestate, meaning without a will, their personal preferences no longer control asset distribution. Instead, statutory inheritance hierarchies determine who receives property.
Because intestate distribution is automatic and court-supervised, understanding the laws of intestacy is critical for estate planning clarity. Probate courts apply these statutes strictly, even if family members believe the outcome does not reflect the decedent’s wishes.
The Legal Information Institute at Cornell Law School defines intestacy here.
What Are the Laws of Intestacy?
Each U.S. state maintains its own intestacy statutes within its probate code. Although the structure is similar nationwide, specific percentages and priority orders vary by jurisdiction.
In general, laws of intestacy prioritize:
• Surviving spouse
• Biological or legally adopted children
• Parents
• Siblings
• Extended relatives
If no qualifying relatives exist, the estate may pass to the state through a process called escheatment.
Because statutes vary, it is essential to review the probate code of the state where the deceased resided.
How the Laws of Intestacy Work in Practice
When a person dies without a will, probate court must appoint an administrator. The administrator performs duties similar to those of an executor but distributes assets according to statutory inheritance rules rather than written instructions.
The probate process is explained here in detail.
The administrator’s responsibilities typically include:
• Filing a petition to open probate
• Identifying and inventorying assets
• Notifying creditors
• Paying valid debts
• Filing required tax returns
• Distributing remaining assets according to statute
Probate court supervises each step to ensure compliance with intestacy law.
Intestate Succession: The Order of Inheritance
Intestate succession refers to the statutory order in which relatives inherit when there is no will. While the specifics vary, the typical structure is:
1. Surviving Spouse
In many states, the surviving spouse receives all or a substantial portion of the estate. However, distribution becomes more complex when children from previous relationships are involved.
2. Children
If there is no surviving spouse, children typically inherit the estate in equal shares. If a child has predeceased the decedent, that child’s share may pass to grandchildren under “per stirpes” distribution rules.
3. Parents
If no spouse or children exist, the estate may pass to surviving parents.
4. Siblings
If parents are deceased, siblings may inherit.
5. Extended Relatives
More distant relatives inherit only if closer relatives are absent.
Probate court applies this hierarchy strictly. Verbal promises, informal notes, or assumed intentions carry no legal weight.
Intestate Succession in Blended Families
Blended families present some of the most complex outcomes under laws of intestacy. Stepchildren who were never legally adopted may receive nothing under intestacy statutes. Biological children from prior marriages may inherit alongside a surviving spouse.
These statutory outcomes often differ significantly from what the deceased may have intended. Probate courts do not adjust intestate distribution based on perceived fairness. They apply statutory formulas.
This is one of the primary reasons estate planning professionals strongly recommend creating a valid will.
What Happens If There Are No Living Relatives?
If no qualifying heirs can be located, the estate may pass to the state through escheatment.
Cornell Law School defines escheat here:
https://www.law.cornell.edu/wex/escheat
Escheatment occurs only after the court confirms that no lawful heirs exist. The state first uses estate funds to satisfy outstanding debts and taxes. Remaining assets become state property.
Without a will, charitable gifts, close friends, or non-relatives cannot inherit under intestacy statutes.
The Role of Probate Court in Intestacy
Probate court plays a central role in enforcing laws of intestacy.
Its responsibilities include:
• Appointing the estate administrator
• Confirming lawful heirs
• Reviewing asset inventory
• Supervising creditor notice
• Approving final distribution
Probate courts operate under state judicial authority. They ensure procedural compliance and prevent improper distribution.
The Administrative Office of the U.S. Courts provides general information about court structure here:
https://www.uscourts.gov/about-federal-courts
Although probate is primarily governed by state courts, this judicial framework illustrates the structured legal oversight involved in estate administration.
How Intestacy Affects Grandchildren
Under most laws of intestacy, grandchildren inherit only if their parent, who was the decedent’s child, has already passed away. If the child survives, grandchildren generally do not inherit directly.
This distribution rule often surprises families who assume grandchildren automatically receive a share.
Understanding these statutory mechanics is critical when evaluating estate planning decisions.
Searching for a Missing Will Before Applying Intestacy
Before proceeding under laws of intestacy, it is important to conduct a thorough search for a valid will.
This may include:
• Searching personal documents
• Contacting the drafting attorney
• Checking with financial institutions
• Inquiring with probate court
• Searching a national will registry
The U.S. Will Registry was created to help families locate where a loved one’s will was stored or identify the drafting attorney so probate can proceed according to the decedent’s wishes. Conducting a registry search can prevent the unintended application of intestacy statutes.
If no will is found after reasonable diligence, probate court will proceed under intestacy law.
Why Creating a Will Avoids Intestacy
Laws of intestacy provide a default distribution system. They are not tailored to individual preferences.
Creating a legally valid will allows a person to:
• Name specific beneficiaries
• Leave property to friends or charities
• Appoint a chosen executor
• Establish guardianship for minor children
• Clarify asset division in blended families
Without a will, the state determines inheritance.
Estate planning allows individuals to override default statutory distribution and protect personal intentions.
Conclusion: Why Understanding the Laws of Intestacy Matters
Laws of intestacy exist to provide a structured method for distributing property when no will exists. They are codified, automatic, and strictly enforced by probate courts. While they provide order and predictability, they do not account for personal preferences, informal promises, or unique family dynamics.
Probate court supervises intestate estates to ensure lawful heirship determination, debt settlement, and statutory compliance. However, intestacy often produces unintended outcomes, especially in blended families or situations involving non-relatives or charitable intentions.
Understanding how laws of intestacy function underscores the importance of proactive estate planning. By creating a valid will, individuals retain control over asset distribution and reduce uncertainty for their families.
Estate planning is not simply about wealth transfer. It is about legal clarity, court compliance, and preserving personal intent within a structured statutory framework.
? FAQ’s Related to Laws of Intestacy
The Laws of Intestacy are state rules that decide who inherits when someone dies without a will. These laws usually prioritize spouses and children first, followed by parents, siblings, or other relatives. Because laws vary by state, it’s important to understand how intestacy would affect your own estate.
If someone dies without a will and no relatives can be found, the laws of intestacy require the estate to pass to the state. This process is called escheat. The state holds or uses the assets, rather than leaving them unclaimed. Creating a will ensures your property goes where you choose.
Under the Laws of Intestacy, grandchildren usually only inherit if their parent (the child of the deceased) has already passed away. Otherwise, the estate passes first to the spouse or children of the deceased. The rules vary by state, so knowing your state’s intestacy laws is crucial for families with grandchildren.
The best way to avoid intestacy is to create a valid will. By doing so, you choose who receives your assets instead of leaving it up to state laws. Using a trusted program like The U.S. Will Registry ensures your will is legally valid and easily located after your passing.
Editorial Review:
This article was prepared by estate planning researchers and reviewed by S. Miller and staff. With more than 25 years of experience in estate planning documentation and probate processes, our editorial oversight ensures clarity and accuracy. This content is provided for informational purposes only and does not constitute legal advice.
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