What Happens if You Die without A Will?

Dying is serious business, so of all the things we plan for – vacations, holiday dinners, home improvements, just to name a few – you’d think we’d be better at making plans for our own inevitable demise.

But a Caring.com 2025 survey found that less than a quarter of American adults even have a will, which is one of the simplest ways you can plan for your death.

The number one reason for failing to do any estate planning was simply “I haven’t gotten around to it,” which might just be code for “I don’t want to think about dying.” Fair enough. But before you push it off for another year, make sure you understand what happens when someone dies without a will.

WHAT DOES “DYING WITHOUT A WILL” MEAN?

A will is a legal document that directs how you want your assets and property to be handled after you die. It also names the person you want to be in charge of distributing your assets and handling other tasks for your estate. Finally, it names your chosen guardians for any minor children.

If you die and a will can’t be located, you’ll be said to have died “intestate.” In that case, the laws of the state where you live will govern who receives your assets and property, and a court will determine who takes custody of your minor children if the other parent is also deceased.

The intestate disposition is unlikely to just happen to match what you’d do if you were in charge. And there’s certainly no guarantee that the person chosen by the court to raise your children would be your first choice.

This can be especially true if, for example, you’re in a committed relationship but not married, if not all of your children are your biological children or if there are estranged family members.

WHO INHERITS IF THERE IS NO WILL?

As we said, the laws for distribution of assets without a will are state-specific. But at a very high level, most states prioritize:

• Spouses and children
• Then parents and siblings
• Then other relatives in order of kinship

Let’s take a look at New York as an example. In New York, intestacy laws provide that:

1. If the decedent is survived by a spouse and children, the surviving spouse receives $50,000 and one-half of the balance of the estate. The children share the remaining 50%.
2. If there is a surviving spouse, but no children, the surviving spouse receives 100%.
3. If there is no surviving spouse, children share equally.
4. If there is no surviving spouse and no children, the decedent’s parents share equally.
5. If there is no surviving spouse, no children and no parents, the decedent’s siblings share equally.
6. If there are no family members who fall into these categories, the assets pass further down the family tree.

So, if Tyler lives in New York, is married with four children and dies without a will, his assets would be shared between his spouse and children as in #1 above.

On the other hand, if Ronnie dies in New York without a will, and she is single with two minor children, her assets would be divided among her children. Since minors can’t own property or financial accounts, the court would appoint a guardian to manage the assets until the kids are 18 (at which time they’d be young adults with full control over what could be a significant sum of money). If the children’s father isn’t in the picture, the court would also choose a guardian to raise the children, who may be placed with a temporary guardian until a permanent guardian can be selected and appointed.

THE ROLE OF PROBATE WHEN THERE’S NO WILL

Probate is the process of validating a will and officially appointing the estate executor. If there’s no will, the court will appoint an administrator, whose role is to distribute the estate of the deceased without a will, in accordance with state law.

The administrator has to first identify all assets, debts and other liabilities like outstanding taxes. Debts and taxes must be paid before the assets can be distributed. Identifying assets can be more difficult when there's no will to refer to.

Estate administrators then need to identify any potential heirs and oversee the distribution of assets according to state law and under the supervision of the court. They also need to file the estate’s income tax returns and estate tax return, if applicable.

Note that there are some kinds of assets whose disposition isn’t governed by the terms of a will or intestacy laws – for example, life insurance policies and employer retirement accounts (like 401ks). Instead, financial providers must follow the beneficiary instructions on file. Make sure you keep them updated and that the designations are aligned with your overall estate plan.

Any property that’s jointly titled or titled as “tenants in the entirety” is also not governed by the terms of a will or the laws of intestacy and passes directly to the surviving owner(s).

COMMON CHALLENGES FAMILIES FACE

DISPUTES AND EMOTIONAL TOLL

A will doesn’t necessarily stop interfamily fighting when it comes to settling an estate, but it can help reduce conflict and settle the question of what your desires for your estate were.

DELAYS

Again, the settlement of an estate takes time, and that means your beneficiaries may have to wait at least a little while to receive their inheritances. But without a will, it’s almost guaranteed to take even longer, as the court has to open a search for potential heirs and estate administrators before moving forward.

LEGAL COSTS

There are common expenses associated with estate settlement. First, there are generally court filing fees and fees for certified copies of court documents. The estate executor might be compensated for their time. Finally, any lawyers involved in the court proceedings or estate settlement will obviously charge fees.

These are all usually true regardless of whether there’s a will but not having one makes it more likely costs will be higher.

HOW TO HELP PREVENT COMPLICATIONS FROM DYING INTESTATE

Drafting a will doesn’t have to be overly expensive or complicated. In most cases, we’d recommend working with an attorney to draft your will, so you can be confident that it’s complete, valid and strategically aligned with your wishes. An estate planning attorney can also help you make sure that you have the other documents you’ll need for a comprehensive estate plan.

You should also make sure that your nominated executor knows where to find your will in the event that something happens to you.

Aside from dying without a will, there are a few other scenarios that are more likely to trigger disputes or extra heartache for your loved ones. One is neglecting to update your will when something in your life changes. For example:

• Marrying or divorcing
• Having children or grandchildren
• Becoming estranged from heirs
• Moving to another state (where your will may no longer be valid or complete)

Some states presumptively assume your wishes changed when you experience certain kinds of events – for example, some states will automatically disinherit a divorced spouse even if still named in the will, and some assume that a child born after the will is created should have been included. But this isn’t the case in every state. In any case, you should make sure to check whether updates are needed when you experience a change like this or at least every 3 to 5 years.

WHEN TO TALK TO THE PROFESSIONALS

We recommend working with an estate planning attorney when drafting your will. It can give you greater peace of mind that your estate plan is complete and valid, and that it’s aligned with your wishes.

Other professionals can also be valuable in this process, especially if you have a lot of assets or a complex financial situation. For example, a tax professional can help you plan your estate so that income taxes are minimized, and your heirs receive as much as possible.