What happens if I die without a will?

If a person dies without making a will, or intestate, his or her property must go through the probate process in order to have the legal title to the property transferred to their heirs. The probate process is a set of guidelines established by state probate law on how property or assets are to be disposed of when a person dies without a will. The probate process, overseen by a probate court, involves appointing an administrator, identifying heirs, and distributing assets.

Read on to find out what happens if you die without a will. If you need further help from an estate planning attorney, just enter your ZIP code below.

How can I prepare the estate for the probate process?

Most probate courts will begin the probate process by appointing a personal representative (frequently called an administrator or administratrix) to receive all legal claims against the estate, pay creditors, and manage other expenses owed by the estate. Expenses paid before distribution of funds can stem from a number of areas: from a judgment against the estate, a decedent’s unpaid bills, an outstanding loan, or administrative fees such as court costs and payments owed to the administrator for his or her service. Once the administrator pays the expenses of the estate, they will proceed with the probate process.

The next step in the legal process is identifying heirs. The probate laws will determine who is a legal heir. The most easily identifiable heirs include surviving spouses, children, and parents. Close friends and distant relatives not listed as persons entitled to receive gifts under a state’s probate laws cannot inherit when a person dies without a will. Generally, if no heirs can be identified, the probate laws dictate that the property of an estate will default to the state.

How is the estate distributed?

After paying the expenses of the entire estate and identifying the legal heirs, the probate court will make the transfer of property after death without a will, i.e. identify what property or assets need to be distributed, and how to distribute them. Even though a person dies without a will, some types of property can be distributed automatically after death.

What happens to a bank account when someone dies without a will?

For example, if a bank account is set up as joint ownership or joint accounts with a right of survivorship, the balance of the account automatically becomes the surviving owner’s property. Similar arrangements can be made for a property like land and automobiles. Any property or assets that are not disposed of through a will or right of survivorship will be disposed of by the probate court according to the state’s probate laws.

The rules for determining how much each heir is entitled to receive from an intestate estate vary from state to state. Subtle differences between the rules of different states can have a substantial effect on who inherits when a person dies without a will. Most states’ probate law divides property among a surviving spouse or domestic partner and the children of the deceased.

What happens if you die without a will in California?

For example, California probate laws provide that if married, the spouse gets 100 percent of the property the two shared, but only one-third or one-half of the separate property left as children or parents of the deceased can share in the distribution of non-marital property. If a person is unmarried (this includes widows and widowers) and dies without a will, the property is distributed by the priorities listed in the California probate code. If no next of kin can be located, the property or assets will default to the State of California. The rules for intestate succession laws are very technical and are usually strictly followed.

Assets that aren’t passed by will include the following: 

• life insurance policies and 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) retirement accounts, or retirement plan for which a beneficiary was named
• funds in a payable-on-death (POD) bank account
• stocks or other securities held in a transfer-on-death (TOD) account, and
• real estate or vehicles held with a transfer-on-death (TOD) deed or title document.

Case Studies: Dying Without a Will

Case Study 1: State Distribution

In this case study, John passes away without a will, leaving behind significant assets. Since he died intestate, the state’s intestacy laws determine the distribution of his property. As a result, John’s property is divided among his surviving spouse and children according to the specific rules outlined in the state’s probate code.

Case Study 2: No Heirs Identified

In this case study, Sarah dies without a will, and no identifiable heirs can be located. As a result, her property defaults to the state according to the probate laws. The state assumes control over the assets, and they may be used for public purposes or sold to satisfy any outstanding debts.

Case Study 3: Joint Ownership

In this case study, David passes away without a will, but he had set up joint ownership or joint accounts with a right of survivorship for his assets. As a result, the balance of his bank accounts and other joint assets automatically transfers to the surviving owner, bypassing the probate process.

Case Study 4: Probate Expenses and Estate Planning

In this case study, Emily dies without a will, and her estate goes through the probate process. The expenses of the estate, such as court costs and payments to the administrator, are paid from the estate before the distribution of assets. The lack of a will results in higher probate expenses. This case highlights the importance of estate planning to minimize costs and ensure that property goes to the desired beneficiaries.

How can I get legal help?

Probate laws will serve as a substitute to distribute an estate in the absence of a will. However, a probate court will simply distribute the estate according to the letter of the probate law and not in accordance with any wishes the deceased owner may have articulated prior to their death. In order to ensure your last wishes are honored, you should visit with an attorney that specializes in wills & estate planning to properly draft a will. In addition to a will, they can help you develop other strategies for ensuring that your property goes to the right person after your death.

Effective estate planning can also reduce probate expenses. Probating an estate without a will is considerably more expensive than probating an estate with a will, and the cost of that will be taken out of the property the heirs would have inherited. Consult with an estate planning attorney if you’re not certain about how to best dispose of your estate after death.