Intestacy in detail — what the state actually does

If you die without a will, you die "intestate." The state's intestacy statute decides who inherits, in what proportions, and who serves as administrator (the equivalent of executor). The defaults are designed to capture what most people would want — but they're applied to every family identically, including yours, regardless of how unusual your situation is.

The result: intestacy works fine for some families and is catastrophic for others. The catastrophes are predictable.

The basic order of succession

Most states follow a common pattern, with variations:

1. Surviving spouse and descendants. Some share between them — usually the spouse takes a chunk plus a percentage of what's left.
2. Descendants only (if no spouse).
3. Parents (if no spouse, no descendants).
4. Siblings (if no spouse, no descendants, no parents).
5. Grandparents.
6. Aunts, uncles, cousins.
7. More distant relatives.
8. Escheat to the state if no relatives can be found at all.

The specifics vary state to state. Some states give the spouse the entire estate if there are no children; others split with parents.

Examples by family type

Married, with kids from this marriage only

Most states: Spouse takes a fixed amount (often $50k-$200k) plus half of the remainder. Children take the other half.

So if you die with a $500k estate, your spouse might get $250-$300k and your children split the remaining $200-$250k. Not "everything to my spouse" — which is what most people would have written.

Married, with kids from a prior relationship

This is where defaults get strange. Most states reduce the spouse's share when the kids aren't also the spouse's. Common pattern: spouse takes one-third or one-half plus a fixed amount, kids from prior relationship get the rest.

The result: spouse gets less than they would in a same-marriage-kids case, and kids from the prior relationship get more. May or may not match what you would have wanted.

Married, no kids, parents living

Many states: Spouse takes everything. Some states: Spouse takes a chunk, parents take the rest. A surprising number of childless married people don't realize their parents may inherit half their estate by default.

Single, no kids, parents living

Parents take everything (split equally between them).

Single, no kids, parents deceased

Siblings take equally. Predeceased siblings' shares go to their children (per stirpes) in most states.

Single, no kids, no parents, no siblings

Aunts, uncles, cousins. Genealogy research begins. Sometimes called "laughing heir" cases — someone you've never met inherits.

Unmarried partner

Zero. Unmarried partners inherit nothing under intestacy in every U.S. state. They're legal strangers regardless of how long they've been together.

What intestacy doesn't do

Beyond the inheritance percentages, intestacy doesn't do:

Specific bequests. Want your collection of vintage cameras to go to a friend? Intestacy doesn't do that. Everything is distributed pro rata among heirs.

Disinheritance. Want to leave nothing to a specific child? Intestacy doesn't allow that — every child gets their statutory share. The only way to disinherit is via a will (and even then, anti-disinheritance statutes for spouses apply).

Charitable bequests. Want some to go to the Red Cross? Intestacy gives nothing to charity.

Choice of administrator. The court appoints an administrator from interested relatives, often the closest one who applies. May not be the person you'd have chosen.

Guardian for minor children. If both parents are deceased, the court chooses a guardian from interested relatives. No nomination from you carries weight.

Custom trust structures for kids. A minor inheriting under intestacy gets the money outright at age of majority — usually 18, sometimes 21. No trust, no staggered distributions, no spendthrift protection. A 12-year-old inheriting $500k under intestacy will get the full lump sum at 18.

Tax planning. Intestacy doesn't optimize for federal or state estate tax. Whatever the default order produces is what you get.

Pet provisions. Intestacy treats pets as ordinary property. They're inherited like furniture. No funded care arrangement.

Digital asset access. Intestacy provides no specific authorization for executors to access digital accounts. Most platforms refuse access without explicit authorization.

How intestacy actually unfolds

Step by step:

1. Family realizes there's no will. Sometimes after searching the home thoroughly. (A will hidden in a safe deposit box only the deceased could open is, in practice, no will at all.)

2. Someone applies to the probate court. Usually a close relative. The court appoints them as administrator.

3. Notice goes out. Newspaper publication, direct notice to known heirs.

4. Heirs are identified. Sometimes a genealogist is hired for distant-relative cases.

5. Assets are gathered, debts paid. Same as with a will.

6. Distribution per intestacy statute. No discretion — the percentages are fixed.

7. Final accounting. Court signs off. Administrator discharged.

Timeline: similar to probate with a will, often longer because of the heir-identification step. Cost: similar.

When intestacy is actually fine

Some situations where the defaults match what you'd write anyway:

• Single, simple estate, only one logical heir. A single adult with one parent inheriting via intestacy probably gets the same outcome as a will would have produced.
• Married, simple estate, kids from this marriage only, modest assets. Default split between spouse and kids may not be your first choice, but it's reasonable.

For everyone else — blended families, unmarried partners, single without obvious heirs, anyone wanting specific gifts or charitable distribution — intestacy is the wrong answer.

What it actually costs to skip the will

A will costs $0-$500. Intestacy costs:

• The same probate fees (court, administrator, attorney) as with a will.
• The administrative time of identifying heirs and litigating any disputes.
• The opportunity cost of every gift not being made (charity, friend, partner).
• The emotional cost of family conflict over default outcomes.
• The risk that minor children's inheritance is mismanaged (no trust, no staggered distributions).

A will is the cheapest insurance product in personal finance. Skipping it is rarely a savings.

What to do this week

If you don't have a will, that's the action item. A 20-minute online will from any reputable platform handles 80% of the gap intestacy creates. The other 20% can be added later.

The single most useful sentence in any will is the residuary clause: "I leave the residue of my estate to [specific beneficiaries]." That alone replaces the entire intestacy default with your choice.