Intestate succession

What Is Intestate Succession?

Intestate succession refers to the legal process by which a deceased person's assets are distributed when they die without a valid will. It is a fundamental concept within estate planning, which encompasses how individuals arrange for the management and distribution of their assets upon death or incapacitation. When someone dies intestate, state laws dictate how their estate will be divided among their closest heirs, typically prioritizing a surviving spouse, children, parents, and other close relatives. These laws serve as a default estate plan provided by the state, aiming to distribute property in a manner that generally aligns with common familial relationships. Intestate succession applies to any assets that would typically pass through a will and do not have other designated transfer mechanisms, such as beneficiary designations on accounts or joint ownership with right of survivorship.

History and Origin

The concept of inheritance, and by extension, rules for property distribution in the absence of a will, is as old as human civilization, with detailed laws existing in ancient Mesopotamian civilizations by at least 2000 BC.¹⁶ In the United States, inheritance laws are primarily a matter of state jurisdiction, but their roots trace back to English common law adopted during the colonial period.¹⁵,¹⁴ Early American colonies began to diverge from strict British common law, which often favored the eldest son (primogeniture), moving towards recognizing broader inheritance rights for all children.¹³,

Over centuries, American inheritance law has gradually evolved, with significant changes occurring in the 20th century to ensure more equitable treatment, particularly for women and spouses.¹² The development of uniform laws, such as the Uniform Probate Code (UPC), has aimed to modernize and standardize aspects of estate and inheritance law across different states.¹¹,¹⁰

Key Takeaways

• Intestate succession dictates how a deceased person's property is distributed when they die without a valid will.
• State laws, rather than the deceased's personal wishes, determine the distribution of assets in cases of intestacy.
• The primary beneficiaries under intestate succession are typically the surviving spouse and children, followed by other close relatives.
• Assets with designated beneficiaries or held in joint ownership generally bypass intestate succession and the associated probate process.
• Understanding intestate succession is crucial for effective estate planning, as it highlights the importance of creating a will or other testamentary instruments to ensure assets are distributed according to one's desires.

Interpreting Intestate Succession

Interpreting intestate succession involves understanding the specific hierarchy and distribution rules outlined by state law. Each state has its own statutes governing how an estate is divided when there is no will. Generally, the laws prioritize close family members. For instance, a surviving spouse often receives a significant portion, if not all, of the intestate estate, especially if there are no surviving children or if all children are also the children of the surviving spouse. If there are children from a prior relationship, the surviving spouse's share may be reduced. After the spouse, children are typically next in line. If there are no spouse or children, the estate may pass to parents, siblings, or more distant relatives.

These laws are designed to reflect what the average person might have wanted, but they may not align with an individual's specific desires or complex family structures. For example, intestacy laws typically do not provide for non-relatives, stepchildren (unless legally adopted), or charitable organizations, regardless of the deceased's verbal intentions or long-standing relationships. The process of determining heirs and distributing assets under intestate succession is overseen by a probate court, which appoints a personal representative to administer the estate.⁹ This process can involve complexities in identifying legitimate heirs according to state law.⁸

Hypothetical Example

Consider Sarah, a single mother with two children, Mark and Emily. Sarah passes away unexpectedly without having created a will or any other estate planning documents. Her assets include a house, a savings account, and some personal belongings.

Because Sarah died intestate, the laws of her state will govern the distribution of her estate. Assuming her state follows a common intestate succession pattern, her assets would likely be distributed entirely to her children, Mark and Emily, in equal shares. A court would appoint an administrator (often a family member) to manage the probate process, pay any outstanding liabilities from Sarah's estate, and then distribute the remaining assets to Mark and Emily.

If Sarah had been married to John and they had two children together, and Sarah died intestate, John, as the surviving spouse, would likely inherit a significant portion, and her children would inherit the remainder. The specific percentages or outright ownership would depend on the state's statutes regarding the surviving spouse's share when there are also children.

Practical Applications

Intestate succession primarily dictates the disposition of property for individuals who die without a valid will. This has several real-world implications:

• Estate Administration: When an individual dies intestate, their estate must go through a court-supervised probate process. This involves identifying the deceased's assets, paying debts, and distributing the remaining property according to state law. An executor or personal representative is appointed by the court for this role.
• Asset Distribution: Intestate succession laws determine who inherits what from the deceased's estate. This can include real estate, bank accounts, and other property not otherwise designated to pass outside of probate.
• Taxation: The distribution determined by intestate succession can impact potential estate tax liabilities. While federal estate tax only applies to very large estates (e.g., over $13.99 million for individuals in 2025), some states have lower thresholds for their own estate or inheritance taxes.⁷,⁶ An estate plan, including a will, allows for strategies to potentially reduce these taxes, such as charitable giving or establishing certain types of trusts. The Internal Revenue Service (IRS) provides detailed information on federal estate tax.⁵
• Legal Disputes: Dying intestate can lead to disputes among family members regarding who qualifies as an heir or how assets should be valued and divided. These disputes can result in costly and time-consuming legal battles.⁴

Limitations and Criticisms

While intestate succession laws provide a necessary framework for property distribution when no will exists, they come with significant limitations and criticisms.

• Lack of Personal Intent: The most prominent criticism is that intestate succession ignores the deceased's actual wishes. The statutory distribution scheme may not align with the individual's desires regarding specific beneficiaries, non-family members, or charitable contributions. For example, a person might have wanted to leave a portion of their estate to a long-term partner not legally recognized as a spouse, or to a close friend, but intestacy laws typically prioritize blood relatives and legal spouses.
• Potential for Disputes and Delays: The process can be lengthy and expensive, often leading to increased legal fees and family disagreements. Without a clear will, the probate court must formally identify all legal heirs, which can be complex, especially in blended families or when distant relatives are involved.³
• No Provisions for Special Needs: Intestate succession does not allow for specific provisions for dependents with special needs, which could result in them losing government benefits if they inherit directly. Proper estate planning with a will or trust can address such situations.
• Unintended Consequences: Assets might pass to individuals the deceased did not intend to benefit, or in proportions that do not reflect their relationships. For example, estranged family members might inherit, while close friends receive nothing.
• Tax Inefficiency: Without a planned distribution, estates may not take advantage of strategies to minimize estate tax or gift tax liabilities, which could reduce the overall value of the inheritance for heirs.

Intestate Succession vs. Probate

While often discussed together, intestate succession and probate are distinct concepts in inheritance law.

• Intestate Succession: This refers to the legal rules and order for distributing a deceased person's property when they die without a valid will. It defines who gets the assets. These laws are established by each state's legislature and act as a default plan.
• Probate: This is the legal process through which a deceased person's estate is administered, regardless of whether there is a will or not. It is the court-supervised procedure to validate a will (if one exists), identify and inventory assets, pay debts and taxes, and finally distribute the remaining property to the rightful heirs or beneficiaries.

In essence, intestate succession is a subset of probate. If someone dies with a valid will, their estate still goes through probate, but the distribution follows the instructions in the will (known as testate succession). If someone dies without a will, their estate goes through probate, and the distribution then follows the rules of intestate succession. Many assets, such as those with a designated beneficiary (e.g., life insurance policies, retirement accounts) or jointly owned property with right of survivorship, can bypass the probate process entirely, whether a will exists or not.²

FAQs

What happens if a person dies without a will?

If a person dies without a will, their estate is subject to intestate succession laws. This means state laws will determine how their net worth and assets are distributed among their closest relatives. A court will oversee the process through probate.

Who inherits if there is no will?

The specific heirs depend on the state's intestate succession laws and the deceased's surviving family members. Typically, the order of inheritance prioritizes a surviving spouse, followed by children, parents, and then siblings. More distant relatives may inherit if no closer relatives exist.

Can an unmarried partner inherit through intestate succession?

Generally, no. Intestate succession laws are designed for legally recognized family relationships. Unmarried partners typically do not have inheritance rights under these laws unless they were legally adopted as a child or there is a formal legal agreement or trust in place.

Is it expensive to die without a will?

Dying without a will can be more expensive than having one, as the probate process under intestate succession can be lengthier and incur higher legal and administrative fees. The court must identify all heirs and ensure proper distribution according to strict state guidelines, which can be a complex and time-consuming process.

Can intestate succession be contested?

Yes, an intestate estate can be contested. Family members or other interested parties may challenge the identified heirs, the valuation of assets, or the application of state inheritance laws.¹ These disputes can lead to protracted legal battles.