What Happens if You Die Without a Will?
No will? No plan. Here’s what can happen to your estate—and your loved ones—if you pass without one.
Dear Savvy Senior,
I’ve put off making a will for years. What actually happens to my money and property if I die without one?
–Getting Old
Dear Getting,
If you die without a will, your assets will be distributed according to the laws of your state, known as intestacy laws. These laws determine who inherits your property and financial accounts when there’s no will or trust. Since rules vary from state to state, it’s important to check the specifics where you live.
A helpful starting point is heirbase.com, which offers Intestacy Evaluators for 37 states. You enter your household information and see how your estate might be distributed. If your state isn’t included, Nolo has a useful state-by-state intestate succession guide at nolo.com/legal-encyclopedia/intestate-succession.
In the meantime, here is a general overview of what can happen, depending on your family situation.
Married with children: When a married person with children dies without a will, all property, investments and financial accounts that are “jointly owned” automatically goes to the surviving co-owner without going through probate, which is the legal process that distributes a deceased person’s assets.
But for all other separately owned property or individual financial accounts, the laws of most states award one-third to one-half to the surviving spouse, while the rest goes to the children.
Married with no children: Some states award the entire estate to the surviving spouse, or everything up to a certain amount (for example the first $100,000). But many other states award only one-third to one-half of the decedent’s separately owned assets to the surviving spouse, with the remainder generally going to the deceased person’s parents, or if the parents are dead, to brothers and sisters.
Jointly owned property, investments, financial accounts, or community property automatically goes to the surviving co-owner.
Single with children: All state laws provide that the entire estate goes to the children, in equal shares. If an adult child of the decedent has died, then that child’s children (the decedent’s grandchildren) split their parent’s share.
Single with no children or grandchildren: In this situation, most state laws favor the deceased person’s parents. If both parents are deceased, many states divide the property among the brothers and sisters, or if they are not living, their children (your nieces and nephews). If there are none of them, it goes to the next of kin, and if there is no living family, the state takes it.
Make a Will
To ensure your assets go to those you want to receive them, you need to create a will or trust. If you have a simple estate and an uncomplicated family situation, there are do-it-yourself resources that can help you create all these documents for very little money.
Some top-rated options include the Quicken WillMaker & Trust ($109) and Trust & Will ($199). Or, if that’s more than you’re willing to pay, you can make your will for free at freewill.com or doyourownwill.com.
If, however, you want or need assistance or if you have a complicated financial situation, blended family or have considerable assets, you should hire an attorney. An experienced attorney can make sure you cover all your bases, which can help avoid family confusion and squabbles after you’re gone.
Costs will vary depending on where you live, but you can expect to pay anywhere between $200 and $1,000 for a will.
The National Academy of Elder Law Attorneys and the American College of Trust and Estate Counsel websites are good resources that have directories to help you find someone in your area.
If money is tight, check with your state’s bar association (findlegalhelp.org) to find low-cost legal help in your area. Or call the Eldercare Locater at 800-677-1116 for a referral.