What Happens If You Die Without a Will?

Christopher Demarest |

What happens if you die without a will?

In the legal world, if you die without a will, it’s called dying “intestate.” A local probate court then has to decide how to distribute your property. While they follow state intestacy laws that try to mimic the final wishes of the average person, your actual wishes remain unknown. And nearly 70% of Americans are at risk of this because they don’t have an up-to-date will.


What is a will?

A last will and testament is a legal document that states what your wishes are after your death. With a will, you can choose heirs for your property, nominate guardians for your minor children, resolve debts, and more. When you make a will, you’ll also choose an executor. Their responsibility will be to submit your will to probate court for authentication, and then to carry out your wishes. But if you die without a will, all of this will be decided for you by the court.


What is probate?

Whether you have a will or not, your estate may go to probate court. Probate is the legal process overseeing the distribution of your assets after your death. If you have a will, this usually begins with the authentication of your will and formal appointment of your executor. However, if you die without a will, this process often starts with the state naming a personal representative (or administrator) for you. Most of the time, your surviving spouse or one of your adult children will get this job. Until the court appoints a representative, your assets will be frozen. And if no one wants to handle your estate, the courts will name a public trustee to distribute your assets.

The judge in probate court will refer to local laws to make decisions about the distribution of your estate. The probate process can be slow and expensive with guidelines varying widely from state to state. And it gets even more complicated when you have an especially large or complex estate.

If you have a small estate, a living trust, joint property, accounts that are payable-on-death, or have given assets away before your death, your estate might be able to avoid intestacy proceedings. Despite this, it’s still a good idea to make a will — no matter the size of your estate. With a will, you can make sure that your loved ones and pets are taken care of after you’re gone. And you might actually be surprised at the size of your estate once you add up all your assets, such as a home, retirement accounts, investment portfolios, or savings.


How dying without a will affects your loved ones

Dying without a will can waste your loved ones’ time and money, as well as cause unnecessary stress while grieving. However, with a will, you can take care of many things that would otherwise be decided by the court, including:

  • Nominating your executor: The executor of a will is the person responsible for managing the estate as it proceeds through probate. Testators (the writer of the will) often explicitly name the person they want to be their executor.
  • Nominating guardians for your minor children: While minor children usually go to their surviving parent, you can name legal guardians to take care of your children if both of you pass away.
  • Nominating caretakers for your pets: Pets are considered property by the law, but you can nominate a caretaker for them by leaving them to a specific person in your will.
  • Instructions for debts and taxes: Sometimes testators include directions for how the executor should handle certain debts and taxes from the estate.
  • Establishing your legacy by giving to nonprofit organizations: Many people like to leave a gift to a cause they cared about in life. You can do this by simply naming a charity as a beneficiary in your will.
  • Distributing specific assets and property: You can give gifts, heirlooms, or items of sentimental value to specific people by naming them as beneficiaries.
  • Distributing the rest of your property (also called your “residuary estate”): You can name beneficiaries to receive your residuary estate to cover all of the assets that you didn’t specifically distribute.
  • Messages to beneficiaries: While messages aren’t technically part of a last will and testament, you can include them as a kind gesture to go with the distribution of your gifts.


What happens to your things when you die without a will?

If you die without a will, the probate court will refer to local “intestate succession” laws to decide who will receive your property. The order of succession usually prioritizes your surviving spouse or domestic partner, followed by your children, then parents, siblings, and extended family members.

However, if you make a legal will, you have more control over who will receive your property after your death. In your last will and testament, you can list your assets out and name beneficiaries for each item. Anything you don’t list out will be part of your residuary estate, for which you can also name a beneficiary. You can even choose to divide your residuary among multiple beneficiaries, giving each a percentage of your estate as indicated in your will. 


Who takes care of your kids if you die without a will?

Generally, the surviving parent gets custody of minor children if one parent dies. But sometimes the surviving parent has passed away as well, or is incapable of caring for their children. In these cases, most judges will consider whoever you nominated as a legal guardian in your will. 

Without a will, the court will ask family members to volunteer as guardians. Among these, the court will give custody to whoever they decide will best protect your children’s interests. If you don’t have family members who volunteer or are fit to serve, your children may become wards of the state and enter the foster care system. 


How do you write a will?

There are a couple of ways you can make a will. You can hire a lawyer, who will ask you questions and then draft a last will and testament form for you to sign. This is helpful if you have a complicated estate or complex wishes that you want to address. To write a will effectively, list all assets with their values, specify inheritors and their shares clearly, appoint a guardian for minor children, and choose a trusted executor. Use plain language to avoid confusion, sign the will in the presence of impartial witnesses, and store it securely while informing your executor. Regularly review and update the will after significant life changes to ensure it reflects current intentions.


Original Article: FreeWill, "What happens if you die without a will?"