What Happens When Someone Dies Without a Will?
When there is no will, the state decides who inherits. Here is a general overview of how intestate succession works and what it means for heirs.
Dying Without a Will (Intestate): Dying without a will (intestate) means the state’s intestacy laws determine who inherits. Every state has a statutory formula — typically prioritizing the surviving spouse, then children, then parents and siblings. The estate still goes through probate, with a court-appointed administrator.
Dying "intestate" — what it means
When someone dies without a valid will, the legal term is "intestate." It doesn't mean the person's assets disappear or that the government takes everything — a common misconception. Instead, the estate goes through probate, and the state's intestacy laws determine who inherits and in what proportions.
Every state has its own intestacy statutes. While the specifics vary, most follow a similar general framework that prioritizes the deceased person's closest living relatives. Below is a general overview — the actual rules in your state may differ, and we strongly encourage consulting with a probate attorney for guidance specific to your situation.
General intestacy framework
Surviving spouse. In most states, a surviving spouse receives a significant share of the estate — often the entire estate if there are no children, or a large portion (commonly one-half to one-third) if there are children. Some states use "community property" rules that affect this calculation differently.
Children. After the spouse's share (if any), children are typically next in line. Most states divide the remaining estate equally among all of the deceased person's children, including children from prior relationships. In many states, legally adopted children are treated the same as biological children.
Parents. If the deceased had no surviving spouse or children, the estate generally passes to their parents.
Siblings and extended family. If there are no surviving parents, most state intestacy laws then look to siblings, then nieces and nephews, then grandparents, then aunts and uncles, and outward to more distant relatives.
If no relatives can be found. In the unlikely event that no living relatives can be identified, the estate "escheats" — meaning it goes to the state. This is extremely rare, as most states cast a wide net in searching for heirs.
How intestate probate differs
The probate process for an intestate estate is similar to one with a will, with a few key differences. Since there's no named executor, the court appoints an administrator — usually a close family member who petitions for the role. The court determines heirship based on state law rather than the deceased's wishes. And in some cases, the process may take longer because the court needs to verify relationships and locate potential heirs.
Common complications
Intestate estates sometimes face additional challenges. Blended families, estranged relatives, and disputes about who qualifies as an heir can create conflict. When the deceased had children from multiple relationships, questions about each child's share can require legal resolution. And when potential heirs are difficult to locate, the process can be significantly delayed.
Can you still get an advance on an intestate estate?
Yes. Inheritance advances work for both testate (with a will) and intestate (without a will) estates. What matters for qualification is that probate has been opened, your status as an heir can be verified, and the estate has sufficient assets. Whether the inheritance comes from a will or from intestacy laws, the advance works the same way.
Key takeaway: Without a will, state law decides everything. In most states, the surviving spouse and children inherit first, but the exact split varies significantly by state.
If you're an heir to an intestate estate and need access to funds before probate concludes, get a free quote or call us at (800) 617-7260 to discuss your situation.
Disclaimer: This page is for general informational purposes only and does not constitute legal, financial, or tax advice. No attorney-client relationship is formed by your use of this website or by any communication with First Heritage Funding or its employees. Although members of our team are licensed attorneys, First Heritage Funding is an inheritance advance company, not a law firm, and does not provide legal representation or legal services. Nothing on this website should be relied upon as a substitute for professional legal or financial counsel. Probate laws, timelines, and costs vary significantly by state and by individual circumstances. You should not act or refrain from acting based on information on this site without first consulting a qualified attorney or financial advisor in your jurisdiction.
Frequently Asked Questions
Almost never. The state only inherits (called 'escheat') if absolutely no living relatives can be found. Most states search quite broadly — to distant cousins and beyond — before this happens. In the vast majority of intestate cases, the estate passes to surviving family members under the state's intestacy laws.
In most states, unmarried partners — including long-term domestic partners — do not automatically inherit under intestacy laws. This is one of the reasons estate planning attorneys recommend having a will, especially for non-traditional family structures. Some states have limited exceptions, particularly for registered domestic partners. This is a question for a qualified attorney in your state.
If a will is found to be invalid — due to improper execution, lack of witnesses, questions about the deceased's mental capacity, or undue influence — the estate may be treated as if no will existed, and intestacy laws would apply. Will contests can be complex legal proceedings and typically require representation by an experienced probate litigation attorney.
Intestate probate often takes somewhat longer than probate with a clear will, because the court must determine heirship and may need to locate and notify potential heirs. The overall timeline depends on the same factors that affect any probate case — estate complexity, state procedures, disputes, and court backlogs. See our probate timeline guide for more.
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