Understanding intestate succession: Who inherits your property?

You probably know that a last will and testament is one of the most important legal documents you can make during your lifetime. But what happens to your property if you pass away without a will? Who receives it, and why? The answer to these questions is determined by a legal process called intestate succession.

What is intestate succession?

Dying without a valid will is known as dying intestate. If you die intestate, there are laws that determine who will receive your property, called intestacy laws.

Intestate succession is the order of priority in which your heirs will receive your property, as determined by your state’s intestacy laws. Intestacy laws vary from state to state, but there are some commonalities that we’ll cover in this article.

Which assets pass via intestate succession?

Any asset that you own in your own name, and don’t jointly hold with someone else, may be subject to intestate succession laws. This includes:

• Property, like your home and other real estate
• Vehicles, including cars, campers, or boats
• 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

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

Typical intestate succession

If you die without a will, who inherits what you leave behind? It will depend on where you live, but here’s a common order of succession:

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)

So, in a basic scenario: If you’re married when you pass away, your entire estate will go to your spouse. If you’re not married, your estate will be split equally among your children. If you’re not married and have no children, your estate will go to your parents, and so on.

If the court can’t find anyone related to you by blood or marriage, then your property will “escheat” to the state, meaning the state will inherit your property. This rarely happens, because even distant relatives can inherit under intestate succession. The state will only receive your property as a last resort.

Intestate succession can quickly get complicated if, for example, you have children with someone other than your spouse. That’s why it’s important to understand your state’s intestacy laws — or better yet, avoid these complications entirely by creating a will.

How community property states impact intestate succession

If you’re married, the property you own generally falls into one of two categories: separate property and community property. Separate property is property that only belongs to one spouse — for example, a vehicle you owned before your marriage. With some exceptions, community property is property acquired by either you or your spouse during your marriage.

In a community property state, all the assets you and your spouse acquire during your marriage belong to both of you equally. When one of you dies, the surviving spouse will likely receive all community property. However, your separate property is a different story, since it belongs to you alone. Part of your separate property may go to your children or parents, if you have them.

There are currently nine community property states in the United States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In addition, Alaska is an opt-in community property state, which means that both spouses have the option to make their property community property. Read our guide on how community property laws can impact your estate.

Who is excluded from intestate succession?

If you’re part of a blended family, it’s important to understand how your relationships are treated under the law.

Your biological or adopted children are considered your children under the law. This means they qualify for intestate succession, and are eligible to inherit part of your estate when you die.

Stepchildren and foster children, on the other hand, don’t have the same inheritance rights. They aren’t considered your children under the law, and so they won’t receive property from you if you die without a will. If you have stepchildren or foster children and want to make sure they’re provided for if you pass away, you must name them as a beneficiary in your last will and testament.

Intestate succession only includes people you’re related to by blood or marriage. If you want to provide for other people in your life, like friends or business partners, you have to list them in your will. The same goes for causes that are important to you. Your favorite charities or nonprofits can never inherit from you via intestate succession — you must list them in your will.

Avoid intestacy by making a will

Intestate proceedings cost your loved ones time and money. They also cause confusion during an already painful time — and can even lead to heirs arguing over your estate.

You can save your loved ones from the stress of intestate proceedings by creating a will. Having a valid will allows you to:

1. Have complete control over who receives your assets;
2. Gift your property to people you aren’t related to, or to charitable causes that matter to you; and
3. Reduce the time and cost of probate, and reduce the pressure on loved ones.

You can use FreeWill to create your free, legally valid will in just 20 minutes. Get started today.