What Happens If You Don’t Have A Will? Basics Of Intestacy

In the United States over half of the population will die without having a will or other estate planning document. Oftentimes, individuals think they don’t need a will because they believe they do not have many assets or their estate is simple. Don’t be one of those individuals! When an individual dies without a will or a will substitute (e.g. trust), the distribution of their assets is governed by the rules of the law of intestacy. This article is designed to walk you through the law of intestacy. The statute of descent and distribution is also called the intestacy statute.

First, why is it called intestacy? When someone dies with a will, they are said to have died “testate” – the person who distributes their property according to a will is called a testator. When someone dies without a will, they are said to have died “intestate” and thus that is why the law of intestacy acts as a default estate plan for those who do not have a will or dispose of their property via a will substitute.

The intestacy statute is designed to carry out the probable intent of the typical intestate decedent. Generally, property first goes to the decedent’s spouse, then their descendants, then their parents, and then to more remote kindred. Adopted children or those born with the assistance of reproductive technology are treated as equivalent to their bloodline counterparts. Importantly, in the majority of states, intestacy statutes do not provide for unmarried cohabiting partners or step-relations.

There are two areas of divergence across states. First, the size of the surviving spouse’s share, and whether the survivor must share with the decedent’s descendants or parents. Second, there are competing methods for how descendants of a predeceased child take the child’s share.

If a decedent has no surviving relations within the degree of kinship specified by the intestacy statute, the decedent’s property reverts to the State (“escheats”).

A will identifies who will take the decedent’s probate property, can designate guardians for minor children, names the fiduciary who will administer the estate, can reduce probate costs by waiving bond, and can create tax savings. Most importantly a will or other estate planning document can stream line the process for the family while also reducing family friction and ensuring that the deceased wishes are carried out.

If you would like assistance in planning your estate, or if you are navigating probate on an intestate estate for a relative, please contact the staff and attorneys at Thooft Law at thooftlaw@gmail.com or directly by phone to discuss your options – initial consultations are free of charge.