# Intestate Succession: Definition, Process, & State Rules

> **Definition**
>
> An individual dies intestate when they don’t leave a valid legal will or other estate plan outlining how they want their assets distributed.

## What Is Intestate?

Intestate refers to dying without a legal [will](https://www.investopedia.com/terms/w/will.asp). When a person dies intestate, deciding how their assets will be distributed becomes the responsibility of a state [probate court](https://www.investopedia.com/terms/p/probate-court.asp), following state-specific intestate succession laws. An estate is considered intestate if the person dies without a will or if their will is declared invalid by the court. Creating and updating a will is important to avoid unintended legal outcomes, as a significant percentage of Americans die without one.

### Key Takeaways

*   Dying intestate means passing away without a legal will, leading a probate court to decide asset distribution.
*   Probate courts usually give priority to spouses and close relatives when distributing intestate assets.
*   Intestate succession laws dictate how assets are divided, often starting with the surviving spouse or children.
*   Creating a will ensures your assets are given to the people or organizations you choose.
*   In community property states, spouses may automatically inherit half of the marital property if their partner dies intestate.

## In-Depth Look at Intestate and Its Implications

When an individual who has a valid will dies, their assets will be divided among the [beneficiaries](https://www.investopedia.com/terms/b/beneficiary.asp) listed in that will as well as through any [trusts](https://www.investopedia.com/articles/personal-finance/051315/will-vs-trust-difference-between-two.asp) that they might have established.

However, many people die without preparing a will. In fact, a 2024 survey by Caring.com found that only 32% of Americans had a will, and this number only rises to 43% among those aged 55 and older.

If a person dies without a will, they are said to have died intestate. Dying “in [intestacy](https://www.investopedia.com/terms/i/intestacy.asp)” means that a state probate court will have to determine how their assets are to be distributed.

> **Important**
>
> It's essential for most people to create a will, preferably with a lawyer's help, to ensure their assets go to their chosen beneficiaries. Otherwise, a court may decide to distribute the estate to people whom the deceased person never would have chosen. It is also important for people to make sure their will is kept up to date, in case their wishes change.

## Navigating the Probate Process When Dying Intestate

Probate courts typically begin the process by appointing an administrator to oversee the estate of the deceased. The administrator lists the deceased's [assets](https://www.investopedia.com/terms/a/asset.asp), pays off debts, and distributes what's left to beneficiaries chosen by the probate judge.

In other words, an administrator functions like an [executor](https://www.investopedia.com/terms/e/executor.asp) (a legal representative normally named in a will).

One of the administrator’s duties is to locate the legal heirs of the deceased, which could include surviving spouses, children, parents, siblings, and other relatives. The order in which heirs inherit from a decedent’s estate when there is no will to rely on is called intestate succession. The probate court will decide who gets what.

Asset distribution differs by state. Most state laws divide property among the surviving spouse and children, if there are any.

In [community property](https://www.investopedia.com/terms/c/communityproperty.asp) states, spouses are considered to be joint owners of any property acquired during the marriage and are typically entitled to at least half of the estate. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, along with the U.S. territories of Guam and Puerto Rico.

In other states, mostly [common law](https://www.investopedia.com/terms/c/common-law-property.asp) states, the distribution hierarchy also starts with the surviving spouse. Depending on the court’s determination, they may receive less than half, more than half, or even the entire estate if the dead person left no living children or grandchildren.

If the deceased was unmarried or widowed, their assets go to surviving children first before other relatives. If no [next of kin](https://www.investopedia.com/terms/n/next-of-kin.asp) is found, the estate's assets are transferred to the state. This is referred to as [escheatment](https://www.investopedia.com/terms/e/escheat.asp).

Close friends typically aren't on the beneficiary list under state probate laws for intestate estates. However, if the deceased had a [joint account with right of survivorship](https://www.investopedia.com/terms/j/jtwros.asp) or owned property jointly with another person, then the joint asset will automatically belong to the surviving party (or parties).

## What Does It Cost to Make a Will?

According to Investopedia’s estimates, the [cost of making a will](https://www.investopedia.com/ask/answers/033116/what-average-cost-making-will.asp) can be as little as $10 or so if you use a do-it-yourself kit. If you engage a lawyer (often a good idea), expect to pay anywhere from $150 for a [simple will](https://www.investopedia.com/writing-a-simple-will-5214270) to $1,000 and up for a more complicated one.

## What Is the Advantage of a Trust?

A trust can be a way to bypass the probate process (which all wills typically go through) so that heirs receive their inheritances more smoothly and quickly. People with trusts often have a [pour-over will](https://www.investopedia.com/terms/p/pour-overwill.asp) as well, to handle the disposition of any assets that aren’t accounted for in their trust.

## What Is a Testamentary Will?

A [testamentary will](https://www.investopedia.com/terms/t/testamentary-will.asp) is another name for a traditional will, sometimes referred to as a [last will and testament](https://www.investopedia.com/terms/l/last-will-and-testament.asp). The person whose wishes the will represents is known as the testator.

## The Bottom Line

When a person dies intestate, it means that they didn’t leave behind a legal will, so a state probate court will distribute their assets according to state laws, which typically prioritize family over close friends. Without a will, assets could even escheat to the state if no relatives are found.

To avoid these outcomes and to ensure that their assets go to the people or organizations that they want them to go to, most people should have a will and keep it up to date. Since probate rules vary by state, consulting an attorney and considering tools like trusts can help simplify the process and better protect beneficiaries.

> **Article Sources**
>
> 1.  Caring.com. “[2024 Wills and Estate Planning Study](https://www.caring.com/caregivers/estate-planning/wills-survey/).”
>     
> 2.  NYCourts.gov. “[When There Is No Will](https://www.nycourts.gov/courthelp/whensomeonedies/intestacy.shtml).”
>     
> 3.  Internal Revenue Service. “[Internal Revenue Manual: 25.18.1 Basic Principles of Community Property Law](https://www.irs.gov/irm/part25/irm_25-018-001).”
>     
> 4.  Uniform Law Commission. “[Uniform Probate Code](https://www.uniformlaws.org/viewdocument/committee-archive-101).” Pages 42-62, 365. Download “Final Act 2004 (Last revised 2006).”
>     
> 5.  Uniform Law Commission. “[Uniform Probate Code](https://www.uniformlaws.org/viewdocument/committee-archive-101).” Pages 70-71. Download “Final Act 2004 (Last Revised 2006).”