Chapter 14: When There Is No Will

The fallback everyone thinks exists

Walk up to ten adults on the street and ask what happens if their parent dies without a will. Eight of them will say some version of: "The state has rules. Everything gets split up fairly among the family. Probably a little messier but basically okay."

Eight of them are wrong in some important way.

There are default rules. They are called intestate succession laws. They exist in every state. They do divide the estate among the family according to a specific hierarchy. But they do it in a way that is often nothing like what the deceased actually wanted, often in a way that causes more family conflict than a will would have, and sometimes in a way that produces outcomes so surprising that the family spends years litigating.

If you are reading this book because a parent has died without a will, read this chapter closely. If you are reading it because you don't have a will yourself, understand what the default is so you can decide whether you want that default to govern your family.

How intestate succession works

When someone dies without a will, their estate is distributed according to their state's intestate succession statute. These statutes roughly follow the same pattern across states but differ in important details.

The basic hierarchy is something like this:

1. Surviving spouse and children. If both exist, they share the estate in proportions set by state law (not always 50/50 as you might expect).
2. Children only (no spouse). Estate splits equally among children (with deceased children's shares going to their descendants per stirpes in most states).
3. Spouse only (no children). Spouse gets everything, or splits with parents/siblings depending on state.
4. Parents. If no spouse or descendants, estate goes to parents.
5. Siblings and their descendants. If no spouse, descendants, or parents.
6. More distant relatives. Grandparents, aunts/uncles, cousins, working outward.
7. "Escheat" to the state. If no heirs can be found, the state takes everything. Rare but happens.

Each state's statute differs on:

• How much the spouse gets when there are also children (some give spouse everything, some split, some have complicated formulas).
• Whether stepchildren inherit (usually not, unless adopted).
• Whether domestic partners inherit (varies).
• Whether "slayer statutes" disqualify killers (most states yes).
• How posthumous children (conceived before but born after death) are handled.
• How children born out of wedlock are handled (varies).

The surprises

Here are the surprises that hurt families the most.

Surprise 1: The spouse may not get everything

In many states, a surviving spouse does NOT automatically inherit the entire estate when there are also children. The spouse gets a portion (often half, sometimes a lump sum plus a percentage) and the children split the rest.

This is catastrophic for many families. The surviving spouse, often an older widow or widower, expects to continue living in the house and using the joint savings. The children inherit half of everything — the house, the accounts, the retirement assets the spouse thought they would live on. The spouse is suddenly dependent on the children's goodwill to stay in their home.

I have seen this go badly many times. A mother of four, widowed at 64, suddenly discovered she owned only half the house. Her four adult children, collectively, owned the other half. One of them insisted on selling to split the proceeds "fairly." She had to fight in court to stay in her home.

This is not what her husband would have wanted. He would have wanted her to live in the house for the rest of her life. He would have wanted the kids to inherit later. But he didn't have a will. The state's default applied. The state's default did not know about their fifty years of marriage.

Surprise 2: Stepchildren inherit nothing

In virtually all states, stepchildren who have not been legally adopted inherit nothing through intestate succession. Zero.

If a man raises his wife's three children from her first marriage as his own, sends them to college, walks them down the aisle, treats them as his own — and then dies without a will — those stepchildren get nothing from his estate. Everything goes to his biological family, including any biological children he had with other women whom he has not seen in decades.

If you are in a blended family, having no will is not a "rough approximation" of your wishes. It is an affirmative disinheritance of the children you raised.

Surprise 3: Unmarried partners inherit nothing

Despite decades of social change, intestate succession in most states still does not recognize unmarried partners. Even long-term partners — 30 years together, sharing a home, sharing finances, sharing a life — get nothing if there is no will or other estate planning document.

The exceptions: a handful of states recognize common-law marriage (typically requiring specific conditions and duration). Some recognize "domestic partners" in narrow circumstances. But the vast majority of states default to "not married = no inheritance."

If you are in a long-term unmarried partnership, you must have a will. You cannot rely on the state to do the right thing.

Surprise 4: Estranged family members inherit

The deceased has not spoken to their brother in 30 years. The brother is awful. The deceased has told everyone, repeatedly, "I don't want him to get a dime."

But the deceased has no will. No spouse, no children, no living parents. Next in line under the state's intestate succession: siblings. The brother inherits the full estate.

The deceased's wishes are legally meaningless. The verbal expressions, the written notes in a diary, the text messages — none of it matters. The state statute controls.

Surprise 5: Unknown relatives can inherit

If the deceased had distant relatives they never knew about, those relatives may inherit before the estate escheats to the state. There is an industry of "heir hunters" who specialize in locating distant relatives of people who died intestate and claiming a cut for helping them claim the estate.

A deceased person who has spent 40 years close to nieces and nephews, but whose estate goes instead to a great-great-nephew in another country whom they never met — because the statute favors blood over relationship — is a real thing.

Surprise 6: No guardian for minor children

This is the worst one. If you have minor children and you die without a will, a court — not you — decides who raises your children.

If both parents die in the same accident without a will, the court will appoint a guardian based on petitions from interested family members. The court does its best, but it is making a decision about your children without the benefit of knowing what you wanted.

This alone is enough reason for any parent of minor children to have a will. Even if nothing else is documented, the guardian provision matters enormously.

The intestacy process in practice

When someone dies without a will, the probate process still happens — it just follows the intestate statute instead of a will.

Steps:

1. An heir or interested party petitions the court to be appointed administrator (the intestate equivalent of an executor). Usually the surviving spouse or an adult child.

1. The court appoints the administrator and issues letters of administration (similar to letters testamentary).

1. The administrator identifies heirs under state law. This sometimes requires genealogical research, especially if the deceased has few close relatives.

1. The administrator inventories and administers the estate similarly to a with-will probate.

1. Distribution happens according to the intestate statute.

Time and cost are often HIGHER than a with-will probate, because:

• Identifying heirs takes effort.
• There is no nominated administrator, so there may be disputes about who should serve.
• Priority debts and claims still have to be paid, often with more uncertainty.
• Beneficiaries may be strangers (distant relatives) who require notification and consent.

Special considerations for unmarried partners

If you are in a committed unmarried relationship, you must plan. The state default will treat you as strangers.

Minimum planning for unmarried partners:

1. Wills. Each partner should have a will naming the other.
2. Powers of attorney. Each partner should name the other as agent for financial and healthcare decisions. Without this, your partner may not even be able to visit you in the hospital.
3. Beneficiary designations. Retirement, life insurance, TOD/POD all naming the partner (with contingents).
4. Joint ownership of key assets. House, bank accounts. Titled as joint tenants with right of survivorship where appropriate.
5. Real estate planning. Consider a trust, especially if children from previous relationships are involved.
6. Advance directives. So that medical decision-making authority is clear.
7. HIPAA authorizations. So that medical information can be shared.

Without this, the partner of 20 years may find themselves barred from the hospital, barred from the funeral decisions, and inheriting nothing. I have seen this. It is devastating.

Protecting minor children without a will

If you are a parent of minor children without a will, the priority action is the will — specifically the guardian nomination. Everything else is secondary.

Short-term (this week):

• Write a simple one-page document naming your preferred guardian and backup. Sign and date. Have two witnesses sign. Store in a findable location. This is not a substitute for a proper will, but is better than nothing while you arrange a proper will.

Proper solution (this month):

• Engage an attorney to draft a real will with guardian nomination. Cost: usually $300-$800 for a simple will with guardian provisions.

Also:

• Talk to your chosen guardian. Confirm they accept the role.
• Talk to your backup. Confirm they accept being backup.
• Consider the practical issues: would the guardian relocate or would your children relocate to them? How will they be funded?
• Consider a testamentary trust in the will to hold assets for the children until they reach appropriate ages. (Chapter 3.)

The administrator's job without a will

If you are the administrator of an intestate estate, your job is almost identical to an executor's (Chapter 12) with a few differences:

• You follow the state's intestate succession law instead of a will.
• Identifying heirs may require research and formal notification.
• Court supervision may be somewhat more involved.
• There is no nominated successor if you cannot serve — the court picks.

Keep the same records. Hire the same professionals. Communicate with the same heirs. The job is bigger and uglier, but the structure is familiar.

Informal "agreements" among heirs

Sometimes, when a parent dies without a will, the adult children get together and decide informally how to split the estate. "Dad would have wanted this to go to sister Anna." "Mom always said her wedding ring should go to her oldest granddaughter." Etc.

These informal agreements can work, with major caveats:

• They are not legally binding unless properly documented. One heir can renege.
• They may have tax consequences. If Anna gets more than her legal share of an estate, that excess may be a gift from the other siblings, which has gift tax implications if over the exclusion.
• They do not bind creditors. The estate's debts must still be paid according to law.
• They do not bind absent or unknown heirs. If there is a sibling nobody has spoken to for 20 years and they exist somewhere, they have legal rights the others cannot waive.

If your family wants to override the intestate default with a different distribution, do it through a "family settlement agreement" drafted by an attorney. Not a handshake.

The "disclaimer" tool

There is one legal tool worth knowing about: a beneficiary can "disclaim" (refuse) an inheritance. If they do so properly (usually within 9 months, in writing, before accepting any benefit), the inheritance passes as if the beneficiary had predeceased the decedent.

Why disclaim?

• Tax reasons. A wealthy beneficiary doesn't need the inheritance and disclaiming lets it flow to descendants at lower tax cost.
• Passing to someone more appropriate. Disclaim an inheritance that would be better used by the next person in line.
• Debt protection. Disclaiming before inheriting prevents creditors from attaching the inheritance.

For intestate estates, disclaimers can sometimes be used to route the inheritance differently than the default — but only "downstream" (to the person who would have inherited if the disclaimer had predeceased), not "sideways" to someone else.

Disclaimers are tricky. Talk to an attorney before using.

The "elective share" for surviving spouses

In some states, a surviving spouse has an "elective share" right — they can claim a statutory percentage of the estate even if the will tries to disinherit them. This is separate from intestacy but related.

Elective share rules differ but typically give the surviving spouse a right to 30-50% of the estate. The purpose is to prevent a spouse from being completely disinherited, which courts and legislatures have decided is bad public policy.

This matters in blended family situations where someone might be tempted to leave everything to their biological children and disinherit a second spouse.

What to do this week

If you don't have a will:

1. Create one this month. Even a simple one. If you can only afford an online template, do that. If you can afford an attorney, even better.
2. If you have minor children, the guardian nomination is the most urgent part. Handle it even before everything else.
3. If you are in an unmarried partnership, make the full package of documents (will, POA, healthcare, beneficiaries). The partner has no default protection.
4. If you are in a blended family, do not rely on the intestate default. It disinherits stepchildren and can also disinherit a spouse in unintended ways.

If a parent has died without a will:

1. Engage a probate attorney immediately. Intestate estates need professional handling.
2. Understand your state's intestate succession rules so you know what to expect.
3. Do not make informal distributions before the process is complete.
4. Document family agreements if you reach any. Not handshakes — paper.
5. Respect spousal and minor-child rights that may trump other heirs' expectations.

If you are advising a friend or family member without a will:

• Do not give legal advice you're not qualified to give.
• Share this book. Tell them to at least nominate a guardian if they have kids.
• Offer to go with them to an attorney consultation. Many people don't have a will because they feel alone in the process.

Next chapter: why siblings fight after a parent's death, and what you can do now (before the death) to prevent it.