What Happens if Someone Dies Without a Will?

What Happens if Someone Dies Without a Will?

When someone dies without a will, especially with a spouse or children, it can be stressful for the person left to distribute the estate. This is known as “intestate,” and means that laws of the state where the deceased resided will determine the property distribution, such as bank accounts and real estate.

To fully understand what happens if someone dies without a will and intestate succession laws, let’s examine the assets not passed by a will, as well as the way the estate gets distributed among heirs.

What Assets Aren’t Passed by a Will?

Before concerning yourself with who gets what assets, it’s important to know which assets are handled outside of the will. These include:

  • Life insurance proceeds
  • Any bank account, real estate or assets held in tenancy by entirety, joint tenancy or community property with right of survivorship
  • Living trust property
  • Funds in an IRA, 401(k) or retirement plan with a beneficiary
  • Funds in a payable-on-death bank account
  • Stocks or other securities held in a transfer-on-death account
  • Assets held with a transfer-on-death deed or title document

The documents related to these types of assets will show beneficiary designation or co-ownership.

Who is the Executor?

When someone has a will, they name the executor of the will who will distribute assets and arrange the payment of debts and expenses. If there’s no will to determine the executor, the laws in that state provide a list of eligible people who can fill the role. Most states use the surviving spouse or domestic partner, followed by adult children, then other family members who are eligible by state law.

Distribution of Assets in Intestate Succession

Each state has intestate succession laws that guide the distribution of assets when someone dies without a will or trust. Typically, spouses, legal domestic partners and blood relatives inherit the assets, while partners, friends or charities get nothing. The spouse usually gets the largest share of the assets, and if there are no children, the spouse inherits all property. Other blood relatives will only stand to inherit something if there is no spouse, domestic partner or children. If there aren’t any legitimate heirs, the state takes the assets.

The caveat to this is that all states have rules that prevent certain people from inheriting any assets if they caused harm to the deceased. A few examples of this are situations in which a person criminally caused the death, or a parent who abandoned or committed crimes against a child.

Glossary of Terms

Intestate succession laws use familiar language, such as children, but it’s important to understand the legal definitions of these terms as they relate to the distribution of assets.


A surviving spouse must have been legally married to the deceased person at the time of death.

  • If the married couple separate prior to the death of one spouse, or one spouse filed for divorce, it’s up to a judge to decide if the surviving spouse is entitled to assets.
  • In some states, common-law marriage is a couple who never had a formal wedding ceremony, but are still considered legally married. The couple must live together for a specified period of time, intend to be married and present themselves as married, but the criteria can differ by state and may impact the intestate succession laws.
  • Same-sex partnerships are a gray area, depending on the state where they live. If the state recognizes same-sex marriage, the remaining partner can still be considered a surviving spouse, but in a state where same-sex marriage isn’t recognized, this is left up to a judge.

Children and Issue

Though it may seem obvious, “children” is a broad term that includes many different situations and impacts the intestate succession laws. “Issue” refers to the person who should inherit assets in the absence of a will, which usually refers to direct descendants.

  • Legally adopted children will inherit assets from their adoptive parents, just as biological children.
  • Stepchildren who were never legally adopted may not stand to inherit anything from the non-biological parent, depending on the laws of the state.
  • Foster children are not recognized as “children” of the foster parents, and don’t typically inherit anything.
  • Children put up for adoption can’t inherit assets from their birth parents, in most cases, and vice versa. Placing a child for adoption severs the legal ties between the birth parents and the child.
  • Children adopted by a stepparent may still inherit from the biological parents, depending on the laws in that state.
  • Children born after the death of a biological parent, also referred to as a “posthumous” child, inherit assets like any other biological child.
  • Children born to unmarried parents inherit from the birth mother, unless they’re adopted by non-relatives. If the child was never legally adopted and the parents stay unmarried, the child will need proof to inherit from the father.


If an intestate succession law includes the siblings as heirs, this can include full siblings, half siblings, and in some situations, siblings who were given up for adoption.

Deceased Heirs

If the heir to the deceased person has also passed away, the laws depend on their relationship with the deceased. If the heir was a child of the deceased, the surviving grandchildren may stand to inherit some or all of the assets their deceased parent would have received, depending on the other surviving heirs.

Survivorship Requirements

In order to be considered a surviving heir, the heir must live a specified period of time longer than the deceased person, which can vary by state. This time frame can vary, with some states only specifying that they live longer, even if it’s merely a minute. Some states adopted the Uniform Simultaneous Death Act, which states that for the purpose of inheritance, each person is treated as though they had survived the other.

Rights of a Deceased Heir’s Descendants

If one of a group of heirs has died, such as one of several biological children, his or her children inherit the parent’s share of the assets. Known as the “right of representation,” this allows the children or grandchildren to stand in the place of the deceased parent, though the actual shares can vary by state law.

Guardianship of Minor Children

If a parent with young children dies without naming a guardian, it’s up to the judge to appoint one. To do this, the judge usually compiles as much information as possible about the children and their situation, as well as the deceased parent’s wishes, to inform their decision. In these cases, the judge must always act in the best interest of the children.

Get Expert Guidance with an Estate Planning Attorney

Intestate succession law can be murky and complicated, so it’s always best to prepare a will to ensure your family is properly taken care of in the event of your death. If you’re in Montana and want to get your affairs in order, Tanko Law can help. Our estate attorneys will be happy to give you advice and guidance, so you can be sure your family is protected. Contact us today to get started!

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