What Happens if You Die Without a Will

Quick Answer

Dying without a will means that all your affairs, including who gets what property you owned, will be decided by a court. If you have specific thoughts about who should receive your property after you die, it’s recommended that you have at least a basic will in place.

last will and testament

You've probably heard the advice many times that you should write a will and do estate planning if you have family members or friends you'd like to pass assets to after you die. But you may wonder: What happens if you die without a will? When someone dies without a will, a court decides what will happen with their property.

Thinking about your own demise is an unsettling topic, but knowing what is likely to occur if you don't write a will might be helpful in encouraging you to finally write one—or make you feel better about not leaving one behind.

What Happens if You Die Without a Will?

The legal term for dying without a valid will is intestate, and the term that refers to the legal process that unfolds after you die without a will is intestate succession.

But the end result is that, if you die without a will, the state laws that govern intestate succession will decide who gets your estate—that is, everything you own. What your family and friends end up with will all be out of their hands. A probate court will make those decisions.

If you die without a legal will, who gets what depends on where you lived. Every state handles intestate succession differently. Generally, a surviving spouse will inherit at least some of your assets, but sometimes your children may be entitled to a portion of the estate. In some states, your spouse will get everything, and your children, nothing.

But relationships can be complicated. Some scenarios you will need to keep in mind include the following.

  • Are you married? As long as there isn't some unusual factor, such as a prenuptial or post-nuptial agreement preventing it, your spouse will receive some of your estate but not necessarily all of it.
  • Do you have children? You may want your kids to get a portion of your estate, but they may not, depending what state they live in. For instance, if you are married with children, and you all live in Texas, your spouse would receive everything upon your death.
  • Do you have stepchildren? You may want your stepchildren to receive a significant portion of your estate, but typically, unless you have adopted them, states will leave them out when dividing assets.
  • Do you have grandchildren? Every state's rule is different, and if one of your children predeceases you and leaves behind grandchildren, it's possible they will receive nothing from your estate if you depend on state law to split up your assets.

You'll want to also keep in mind that dying without a will can get very complicated when you have a blended family, children from multiple marriages, you've been married two or more times or when members of your family are scattered far and wide. The court appoints someone—called an administrator—to search for your living relatives, which can take a long time.

If no living heirs can be found, your property will be assumed by the state.

Why Is It Important to Have a Will?

It's very important to have a will if you want a say in how your estate is split up after you aren't around. If you have few family and friends and are unsentimental or assume the courts will work everything out, you may feel less passionate about writing a will. So in a way, it's a judgmental call.

Still, if you're looking for motivation to finally write that will, some reasons include:

  • You could save loved ones from stress. This is a difficult time; your family just lost you. Instead of fully mourning you, your family may be familiarizing themselves with your state's intestate succession laws and perhaps not liking what they're seeing and squabbling. If a spouse and adult children have ownership of your home, for instance, will the children want to sell the house?
  • You will save your family money. Costs related to probate can range from a few hundred dollars for a simple estate to thousands of dollars. The cost of settling your estate gets deducted from the assets you leave behind, meaning your family gets less in the end.
  • You will have the peace of mind of knowing who will get what. If you have cherished artwork or jewelry, for instance, and you would like your kids or grandchildren or a favorite nephew or niece to have it, your will would ensure that would happen.
  • You don't have to leave things to just relatives. Maybe you have a favorite charity you'd like to support with the money you leave behind. Writing that gift into your will alerts the court of your wishes.

How Do You Write a Will?

Because wills are legally binding documents, it's best to at least have your will looked over by an estate planning attorney. Here's the typical process for writing a will.

  1. List your assets. What do you own that you want to someday disperse? You may have a house or a condo, real estate or sentimental heirlooms you want to pass on. You typically don't need to put retirement accounts and life insurance policies in your will, and may not need to list investments, since these types of accounts already have you list beneficiaries.
  2. List your beneficiaries. This may be easy—or complicated if you have a sprawling family or lots of people and organizations you want to distribute property to.
  3. Name an executor to your will. That is, you need to assign somebody the role of carrying out the instructions you lay out in your will.
  4. Write your instructions. This is where you explain who gets what. This is also the time to discuss guardianship, if you have children who may not have a parent around if you were to die.
  5. Sign your will. This needs to be done properly, which means you'll need a witness to sign it, someone 18 years of age or older and (in most states) who isn't listed in your will. You will need to sign it. You will probably need to get it notarized, but not every state requires this.

Again, it's wise to work with a lawyer even just to look your will over at the end. Every state is different, and you wouldn't want to go through the hard work of writing a will, only for your family or friends to learn it isn't legally binding.

The Bottom Line

While having a will isn't a legal requirement, it's a good idea to ensure that your property gets distributed as you'd like for it to. When you do have your will finished, it's a good idea to keep it in a safe place with the deeds to any real estate you own, information on your investment accounts and other important financial documents so they're easily accessible in an emergency. The more planning and preparation you can do now, the less stress your family will deal with down the road.