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Intestate Succession: Who Inherits When There Is No Will?

Intestate succession is how a state distributes a deceased person's assets when they die without a valid will. Every state has these laws, and they create a default inheritance order, typically prioritizing spouses and children, then moving to more distant relatives. This guide explains how intestate succession works, whether you are an heir trying to understand your rights or someone who wants to make sure their estate goes to the right people.

What Is Intestate Succession?

When a person dies without a will, the law says they died "intestate." Intestate succession is the body of law, different in every state, that determines who inherits their property in that situation. The state essentially writes a default will on behalf of anyone who fails to create their own.

Intestate succession applies only to probate assets, property that was owned solely by the deceased and that does not have an automatic mechanism to pass to a named beneficiary or joint owner. Assets like retirement accounts with named beneficiaries, life insurance policies, and jointly owned real estate pass to beneficiaries or co-owners regardless of whether the deceased had a will. Only the portion of the estate that consists of solely owned assets with no beneficiary designation is subject to intestate succession. For a broader overview of how assets transfer at death, see our inheritance guide.

Intestate succession can produce results that are very different from what the deceased person would have wanted. State law does not know that you were estranged from a sibling, that you had a devoted partner of 20 years you never married, or that you wanted everything to go to your best friend. It applies rules based on legal relationships, without regard to actual affection or intention.

How State Intestate Succession Laws Work

Each state has enacted its own intestate succession statute as part of its probate code. While the details vary, most state laws draw from one of two model acts: the Uniform Probate Code (UPC) or older common law approaches. About 18 states have adopted the UPC in whole or in large part, while the remaining states follow variations of traditional common law succession rules.

The process begins when a family member, friend, or other interested person files a petition with the probate court in the county where the deceased lived. The court appoints an administrator (sometimes called a personal representative) to manage the estate. For a detailed look at what happens inside the courthouse, see our guide to the probate process step by step. The administrator inventories the estate, pays debts and taxes, and then distributes the remaining assets according to the state's intestacy formula. State probate laws govern this entire process when there is no will.

Typical Intestate Distribution Order

While the exact shares depend on the state, the general priority order for intestate succession is as follows:

1. Surviving Spouse

The surviving spouse is almost always first in line. But "all to the spouse" is not universal. Many states split the estate between the surviving spouse and the deceased's children, even if they are the couple's own children. The spouse's share depends on whether children exist, whether those children are from the current or a prior relationship, and the state's specific statute.

2. Descendants (Children, Grandchildren)

If there is no surviving spouse, or the spouse shares with children, the deceased's descendants inherit. Children inherit equally. If a child died before the parent, that child's share typically passes to their own children (the grandchildren of the deceased) under a principle called "representation" or "per stirpes."

3. Parents

If the deceased leaves no surviving spouse and no children or grandchildren, the estate passes to the deceased's surviving parents, either both equally or the sole surviving parent. In most states, parents inherit only if there are no descendants.

4. Siblings and Their Descendants

If neither spouse, descendants, nor parents survive, the estate passes to the deceased's siblings. If a sibling died before the deceased, that sibling's children (the nieces and nephews of the deceased) take their parent's share by representation.

5. Extended Family

Beyond siblings, intestacy laws trace relatives through grandparents, aunts and uncles, cousins, and more distant relatives depending on the state. Most states will trace kinship quite far before allowing an estate to pass to the government.

6. The State (Escheatment)

Only when no qualifying relatives can be identified after a diligent search does an estate "escheat," meaning it passes to the state government. This is a last resort and relatively uncommon in practice.

To understand how this plays out in your specific state, the IRS estate and gift tax information can help clarify the federal tax context, and your state's own probate court resources will provide the specific succession rules.

Community Property vs. Common Law States

One of the most important variations in intestate succession involves whether you live in a community property state or a common law (equitable distribution) state. This distinction affects how marital property is owned during life and what happens at death.

Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (Alaska allows couples to opt in). In these states, most assets acquired during the marriage are owned 50/50 by both spouses. When one spouse dies intestate, the surviving spouse already owns their half of community property outright. It does not go through the estate at all. Only the deceased spouse's half of community property, plus any separate property, is subject to intestate succession.

Common law states (all other states) do not impose automatic co-ownership of marital property. Each asset is owned by whoever earned it or whose name is on the title. This means a surviving spouse may be entitled to a larger share under intestate succession, because they do not already own half, but the calculation is more complex.

Who Is Excluded from Intestate Succession

Certain people who might reasonably expect to inherit receive nothing under intestate succession:

  • Unmarried partners: A boyfriend, girlfriend, domestic partner, or long-term companion who was not legally married to the deceased inherits nothing under intestate succession, regardless of how long they were together or how intertwined their lives were. This is one of the strongest reasons to have a will or to get legally married if you want your partner to inherit.
  • Stepchildren: Stepchildren who were never legally adopted by the deceased are not legal heirs under intestate succession in most states. If you want your stepchildren to inherit, you must adopt them legally or name them in a will.
  • Friends: No matter how close a friendship, friends have no inheritance rights under intestate succession. Only legal relatives and spouses qualify.
  • Estranged relatives: Intestate succession does not account for estrangement. A sibling you have not spoken to in 20 years may inherit if you die without a will.
  • Charities: Charitable organizations receive nothing under intestate succession unless named in a will or as a beneficiary of an account.

What Happens to Minor Children's Inheritance?

Intestate succession creates real problems when children are minors. A minor child cannot legally manage significant financial assets. If a child inherits property under intestate succession, a court must appoint a custodian or guardian of the property to manage the assets until the child reaches the age of majority (18 or 21 in most states). This involves court oversight, ongoing reporting requirements, and potentially steep attorney fees.

At the age of majority, the child receives the full inheritance outright, whether or not they are ready to manage it. By contrast, a will or a trust can hold assets in a managed structure until the child reaches a specified age (25, 30, or older), distributing funds for education, health, or other specific purposes over time.

This is one of the strongest arguments for having a will, especially for parents of minor children. A will lets you name a guardian for your children and create a testamentary trust that manages their inheritance for the long term rather than delivering a lump sum at age 18.

How to Avoid Intestate Succession

Avoiding intestate succession is straightforward: create estate planning documents that express your wishes. Here is what to do next. These tools make sure your assets go where you intend:

  • A valid will: directs distribution of probate assets according to your instructions
  • A revocable living trust: transfers assets outside of probate and provides for incapacity planning
  • Beneficiary designations: on retirement accounts, life insurance, and bank accounts
  • Transfer-on-death deeds: available in many states for real estate
  • Joint tenancy with right of survivorship: passes property automatically to the surviving co-owner

Even a simple will prevents the worst outcomes of intestate succession. For more complete planning, explore our estate planning overview and compare wills vs. trusts to decide which approach fits your situation. Our estate planning checklist includes updating beneficiary designations, which is one of the simplest ways to keep assets out of intestate succession entirely.

The CFPB's resource on managing someone else's money provides helpful background on fiduciary duties and estate administration, whether you are an heir navigating intestate succession or an administrator of an intestate estate.

Frequently Asked Questions

Who inherits if there is no will and no children?

If someone dies without a will and without children, the surviving spouse typically inherits the entire estate in most states. If there is no surviving spouse either, assets generally pass to the deceased's parents. If the parents are also deceased, assets pass to the deceased's siblings, then to nieces and nephews, and so on. The exact order and shares depend on the state. If no relatives can be found after a diligent search, the estate eventually escheats (passes) to the state.

Does a spouse automatically inherit everything without a will?

Not necessarily. In many states, a surviving spouse shares the estate with the deceased's children, even if those children are the couple's own children. For example, in some states a spouse receives one-third to one-half of the estate and children split the rest. In community property states, the surviving spouse already owns half of community property, and the deceased's half of community property plus their separate property goes through intestate succession. The rules vary significantly by state.

What happens to assets if no heirs exist?

If a person dies without a will and without any living relatives who qualify as heirs under intestate succession law, the estate "escheats" to the state government. This is relatively rare in practice because intestacy laws cast a fairly wide net, tracing relatives out to cousins in many states. Escheatment does happen when people die without known relatives or when all identified relatives have also predeceased them.

Does intestate succession apply to all assets?

No. Intestate succession only governs "probate assets," property owned solely by the deceased without a mechanism to pass automatically to someone else. Assets that pass outside of probate, including retirement accounts with named beneficiaries, life insurance policies, bank accounts with payable-on-death designations, jointly owned property with right of survivorship, and assets held in a living trust, are not affected by intestate succession. They pass to the named beneficiary or surviving co-owner regardless of whether the deceased had a will.

How do I find out my state's intestacy laws?

Each state's intestacy laws are codified in its probate code or estate code. You can find them through your state legislature's official website, the state court system's self-help resources, or a licensed estate planning attorney in your state.

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Information current as of April 11, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in your state can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.