What is intestacy? Understanding what happens if you die without a will

Most people understand the importance of having a last will and testament. It’s a powerful legal tool that allows you to control your legacy, protect your minor children, and choose who receives your property after you die. But if you were to pass away without a will, your state’s laws would make these important decisions for you. This is what’s known as dying intestate.

What is the definition of intestate?

If you die “intestate,” it means you passed away without a valid will in place. A last will and testament is an important legal document you use to outline who should receive your property when you pass away. If you don’t have one, then your state has intestacy laws that will determine who will get your property.

Intestacy laws vary by state, but one thing they have in common is that they’re a one-size-fits-all approach to distributing estate assets. Intestacy laws don’t give you or your loved ones any control over who inherits your property. Dying intestate also makes the administration of your estate more time-consuming and expensive than if you had a will. That’s why it's so important to make a valid will and keep it up to date.

Intestate vs. probate: What’s the difference?

Although the words “intestate” and “probate” sound similar, intestate administration and probate aren’t the same. Dying intestate means dying without a will. Probate is the court-supervised legal process of proving that your will is valid and distributing assets from your estate. During probate, a local court will appoint someone to administer your estate. With the court’s supervision, that representative will take inventory of your assets, pay your debts, and pass on your property to your heirs.

If you die intestate, the administration process is longer and more complicated than if you’d made a will. Even if you have a will, the court will still oversee the administration process. But having a will makes the process easier and quicker for everyone involved. Instead of relying on your state’s laws to determine who will receive your property, you get to make those decisions yourself.

Intestate succession: Who receives your property?

If you die intestate, the court follows intestate succession laws, which set the order in which your heirs receive your property. A common order of succession is:

1. Your spouse
2. Your children (biological and adopted)
3. Your parents
4. Your siblings
5. Next of kin (a.k.a., your extended family, including nieces and nephews, grandparents, and cousins)

If the court can’t find any living person related to you, then the state will inherit your property as a last resort. Intestacy laws vary by state and can quickly become complicated. That’s why it’s better to avoid intestacy laws entirely by creating a will.

Which of your assets are affected if you die intestate?

If you don’t have a valid will in place when you die, any asset that’s considered part of your probate estate will likely be distributed via your state’s intestacy laws. This includes:

• Property, like your home and other real estate
• Vehicles, including cars, campers, or boats
• Certain bank and brokerage accounts
• Pets (they may feel like members of the family, but they’re considered property under the law)
• Family heirlooms or personal items, like clothes, books, and furniture

Any property you own jointly with someone else doesn’t go through the probate process if they’re still alive. For example, if both your and your spouse’s names are on your house deed, then when you pass away, it won’t go through probate. Instead, your spouse will be the sole owner of the home.

There are also certain assets — like your 401(k) account or life insurance policy — that may be subject to probate if you don’t name a beneficiary for them. Learn more about these assets and who receives them.

What happens if you die intestate?

If you die intestate, the estate administration process is often longer and more expensive than it would be otherwise. First, the court has to select an administrator for your estate, since you didn’t nominate one yourself. The court will usually ask family members to volunteer for the position. If no one offers or is deemed fit, the court will appoint someone, like a public official, to do the job.

At this point, the administrator must take inventory of all your assets and debts. If you don’t have a will that lists each of your assets, it can be challenging to track them down if the administrator doesn’t have a complete picture of what you own. During the administration process, assets like your bank accounts may be frozen, inaccessible to your loved ones who may need them to help pay for critical expenses. The longer estate administration takes, the longer it will be before your beneficiaries can receive their inheritance.

Once all assets have been accounted for, your debts will be paid using money from your estate. If you don’t have enough cash to cover your debts, your property will be sold to cover the remaining costs. What’s left will be distributed via intestate succession.

The problem with dying intestate

Dying intestate can place a heavy emotional burden on the people you love. During a time of enormous grief and loss, they also have to handle the logistics of your death without a roadmap. They may be unsure of your wishes, leading to arguments among family members. Even if they do know your wishes, they have no control over your estate or your legacy — the court does.

A lengthier estate administration process can delay how soon your loved ones receive assets and cost money from your estate that could have gone to them. Property could be sold that you intended to keep in the family. Arguments about your estate can create rifts that last generations.

The bottom line is this: when you die intestate, you give up the control you have over your own legacy. Even if you think you don’t own a lot, the kindest thing you can do for your loved ones is to make a will.

Avoid intestacy by making a will

A last will and testament is one of the most important legal documents you’ll ever make. By having one, you can control your legacy, give back to causes you care about, and protect your loved ones — just to name a few.

And with today’s technology, making a will has never been easier or more affordable. You can use FreeWill’s online will-making software to create, download, and print your will in just 20 minutes — completely free. Get started today.