What actually happens if you die without a will

A majority of adults have no will. The consequence is not that nothing happens — it is that a set of default rules applies, written by a legislature that knows nothing about your family.

How intestacy works

Each state has a statute setting out who inherits when there is no valid will.

The rules follow a hierarchy based on family relationship: spouse first, then children, then parents, then siblings, then more distant relatives.

The proportions vary considerably between states, and the variation is where the surprises live.

In many states a surviving spouse does not receive everything. Where there are children, the estate is frequently divided between spouse and children in defined shares.

The proportion the spouse receives may also depend on whether the children are shared or from a previous relationship.

Who is left out

The most consequential feature.

Unmarried partners. Intestacy rules generally provide nothing for a partner regardless of how long the relationship lasted or whether a home was shared.

The widespread belief that long cohabitation creates equivalent rights is not accurate in most jurisdictions.

Stepchildren, who are generally not included unless legally adopted, however close the relationship.

Friends, charities and anyone outside the family tree.

Specific people you would have wanted to receive specific things. Intestacy divides by proportion, not by item.

The practical consequences

Minor children inheriting. Where children under the age of majority inherit, the money is generally held in some form of guardianship or custodial arrangement until they reach that age.

At which point a young adult receives the full amount outright, which is frequently not what a parent would have chosen.

The family home. Where a spouse receives only part of the estate and children receive the rest, the home may need to be sold to satisfy the division.

This is one of the more painful outcomes and it is entirely avoidable.

No named executor. The court appoints an administrator according to a statutory priority list, and a bond may be required, which adds cost.

No named guardian for children. The court decides, without knowing your preferences.

For parents of minor children, this alone is generally sufficient reason to make a will.

Delay and cost. Intestate administration is generally slower and more expensive than administering a well-drafted will.

What a will does not control

An important limitation that catches people.

Assets with beneficiary designations — retirement accounts, life insurance, some bank and brokerage accounts — pass according to those designations regardless of what a will says.

Jointly held property with rights of survivorship passes to the surviving owner.

Assets held in a trust pass according to the trust terms.

Which means a will governs only what is left, and someone whose assets are mostly in retirement accounts and joint property may find the will controls very little.

This is why beneficiary designations deserve at least as much attention as the will itself.

The simplest version that works

For anyone who has been deferring this.

A straightforward will naming beneficiaries, an executor and — where there are minor children — a guardian, covers the great majority of what is needed for most households.

Requirements for validity vary by state and generally include being of sound mind, signing in the presence of witnesses who are not beneficiaries, and meeting formalities on the number of witnesses.

Some states recognise handwritten wills without witnesses in defined circumstances, and relying on that is a poor idea where a properly executed will is available.

When professional drafting matters

A simple document is adequate for a simple situation. Several situations are not simple.

A blended family. A beneficiary with a disability receiving means-tested support. A business. Property in more than one state or country. Estranged family members likely to contest. A wish to leave someone out. Substantial assets with estate tax exposure.

In each of these, the cost of drafting properly is small relative to the cost of getting it wrong, and the errors are generally discovered when nobody is available to correct them.

Review

A will made twenty years ago frequently names people who have died, moved away or left the family, and reflects assets that no longer exist.

Reviewing after any marriage, divorce, birth, death or significant change of circumstances keeps it functional.

In some states, marriage or divorce automatically affects an existing will, sometimes revoking it in whole or in part — another reason to review after either.

General information only, not legal advice. Succession law varies by state and country and changes — consult a qualified attorney about your own circumstances.