How Is An Estate Settled If There’s No Will: Intestate Succession
Republished with Permission © 2010 Nolo.
by Mary Randolph
Intestate succession controls who inherits property if no will exists.
If you’re settling the estate of a deceased person who hasn’t left a will, you probably have more than a few questions about how the estate will be distributed. First, it’s important to understand that many kinds of assets aren’t passed by will, such as:
- life insurance proceeds
- real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship
- property held in a living trust
- funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
- funds in a payable-on-death (POD) bank account, and
- stocks or other securities held in a transfer-on-death (TOD) account.
To find out who inherits these types of property, you’ll need to locate the documents in which the co-ownership or beneficiary designation was established.
To find out who inherits other assets — generally, solely-owned property for which no beneficiary has been formally named, such as a house — you’ll need to consult state law. Every state has “intestate succession” laws that parcel out property to the deceased person’s closest relatives. More on this below.
Who’s in Charge?
When there is no will to name an executor, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone based on the priority list set out in state law. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members. (If you’ve been chosen to serve as executor of an estate, learn how to decide whether the job is right for you in Nolo’s article Should You Accept the Job of Executor to Settle an Estate?)
Who Gets What: The Basic Rules of Intestate Succession
Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners (in states where that’s an option), and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, commonly the surviving spouse gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.
All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child. (Learn more about relatives’ rights to claim parts of an estate in Nolo’s article Inheritance Rights.)
Understanding Key Terms in Intestate Succession
Intestate succession laws refer to groups of people such as “children” and “issue.” You may think you know just what “children” means, but don’t be too sure until you check your state’s laws. It’s not always obvious.
To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it’s clear who is and isn’t married. But not always.
- Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.
- Common-law marriage. A few states allow common-law marriages (in which a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances). Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. Check your state law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
- Same-sex marriage. There is considerable confusion over whether courts will recognize a same-sex partner as a surviving spouse. Couples who marry and live in a state that allows same-sex marriage should not have a problem. But if one spouse dies in a state that doesn’t recognize same-sex marriage, the courts will have to decide the issue. (For more information see Nolo’s article Recognition of Existing Same-Sex Marriages.)
Children and Issue
The simple term “children” can mean different things to different people — and under different laws. Many state statutes use the term “issue” to describe who should inherit in the absence of a will, meaning direct descendants of the deceased person (children, grandchildren, and so on).
- Adopted children. In all states, in the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.
- Stepchildren. Most states do not include stepchildren (children of the spouse of the deceased person who were never legally adopted by the deceased person) in their definition of children for purposes of inheritance. In a few states, however, it may depend on the circumstances of the relationship.
- Foster children. Foster children do not normally inherit as “children” of the foster parents.
- Children adopted by an unrelated adult or family. In most states, placing a child for adoption severs the legal tie between the child and the birth parents. The child can no longer inherit from the birth parents under intestate succession laws, and the parents can no longer inherit from the child.
- Children adopted by a stepparent. A child who is adopted by a stepparent might still inherit from the biological parents; it depends on state law.
- Children born after the parent’s death. A child conceived before a parent’s death but born after the death (sometimes referred to as a “posthumous” child) inherits under intestate succession laws just as do children born during the parent’s life.
- Children born outside marriage. A child born to unmarried parents always inherits from his or her birth mother, unless an unrelated family adopts the child. If the parents were never married, usually the child must show some kind of proof to inherit from the father.
Brothers and Sisters
If an intestate succession law includes the deceased person’s “sisters and brothers” or “siblings” as heirs, this group generally includes half-siblings and may even include half-siblings who were adopted out of the family.
If an Heir Has Died
Obviously, an heir who has died can’t inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it’s essential that you do so before distributing assets.
To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time — theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other. Check your state law to learn the rules in your state.
Rights of a Deceased Heir’s Descendants
Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parent when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law.
Taking Care of Minor Children
Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. But if a guardian is needed and there’s no will, how does a judge know whom to appoint? In that situation, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children. (More information in Nolo’s How Guardianships Work FAQ.)
For in-depth information on settling an estate with or without a valid will, get The Executor’s Guide: Settling A Loved One’s Estate or Trust , by Mary Randolph, J.D. (Nolo).