Intestate Succession

An intestate succession is the distribution of a deceased person’s estate according to state law when the person died without a valid will. Rather than following the deceased’s wishes, assets pass to relatives in an order set by statute—typically spouse, children, parents, then more distant relatives.

How intestacy works

When someone dies without a will (or with an invalid or incomplete will), the state steps in. Each state has a statute of descent and distribution that defines the order in which relatives inherit. These are sometimes called intestate succession laws or laws of descent.

The basic hierarchy is generally:

1. Spouse (if alive) — typically receives a significant portion or all assets
2. Children (natural and adopted) — divide equally or per stirpes (see below)
3. Parents (if no children) — often share equally
4. Siblings (if no parents)
5. Grandparents, aunts, uncles, cousins — progressively more distant

If no relatives can be found, assets go to the state under the doctrine of escheat.

Per stirpes vs. per capita distribution

The way children or descendants inherit matters:

Per stirpes (“by the branch”): if a child predeceases the intestate, that child’s children (grandchildren of the intestate) inherit their parent’s share. This is the most common approach and respects family lines.

Per capita (“by the head”): all heirs at the same generational level divide equally, regardless of whether any predeceased. If two of three children are alive, the two living children divide the estate equally, ignoring the deceased child’s family.

Most states default to per stirpes for direct descendants, which preserves family structure.

Community property vs. common law states

Common law states (most of the US) treat marital property and separately owned property differently. A spouse does not automatically inherit everything. Spouses typically receive a fraction (e.g., 1/3 or 1/2) and children receive the rest.

Community property states (Arizona, California, Nevada, Texas, Washington, Wisconsin, and Idaho) treat assets acquired during the marriage as jointly owned by both spouses, regardless of whose name is on the title. On death, the surviving spouse typically retains their half and inherits the deceased’s half, so the spouse receives all community property assets.

This distinction can dramatically affect who gets what.

The role of probate

Intestate succession is administered through probate court. A family member (typically the surviving spouse or oldest child) petitions the court to be named executor (or administrator, if no will exists). The executor:

• Inventories the estate
• Notifies heirs and creditors
• Pays debts, taxes, and expenses
• Distributes remaining assets according to the intestate succession statute

Probate is a supervised, public process that provides:

• Creditor protection: claims against the estate must be filed within a deadline
• Tax clearance: the estate receives a tax clearance before distribution
• Record and finality: distributions are court-approved and documented

But probate is also slow, expensive, and public—revealing estate details to the world.

What intestacy doesn’t cover

Even with a will, some assets bypass probate and intestacy:

• Jointly owned property with right of survivorship — passes directly to the co-owner
• Payable-on-death accounts — pass to the named beneficiary
• Retirement accounts and life insurance — go to designated beneficiaries, not the estate
• Transfer-on-death deeds — real property passes to the named beneficiary (available in some states)

If these are not properly designated, they may fall into the probate estate.

Consequences of intestacy

Unintended heirs. A parent with estranged or unworthy children may not want them to inherit, but intestacy laws give them a share. Without a will, preferences are ignored.

No care for minor children. A will allows a parent to name a guardian for minor children. Intestacy does not. The court will appoint a guardian, which may not align with the parent’s wishes.

Unmarried partners left out. Intestacy favors legal relatives. Unmarried partners or non-traditional families may receive nothing, even if they were the deceased’s primary financial dependent.

Tax inefficiency. A will can include tax-minimization strategies (credit shelter trusts, portability elections, charitable planning). Intestacy cannot, so the estate may owe more taxes than necessary.

Delays and costs. Intestacy often leads to disputes (which sibling should be executor? what are the exact distributions?), prolonging probate and increasing attorney fees.

Avoiding intestacy

The simplest solution is a will—a document stating who inherits what, who oversees the estate, and who cares for minor children. A will is binding (to the extent it complies with state law) and is more cost-effective than intestacy.

Other tools include:

• Trusts — can hold assets outside probate and provide instructions for distribution
• Beneficiary designations — name beneficiaries on retirement accounts, insurance, and payable-on-death accounts
• Deeds and titles — register property as joint-tenancy or transfer-on-death to avoid probate
• Charitable giving strategies — reduce the taxable estate while supporting causes

State variation

Intestacy laws differ significantly by state. A person living in California will have very different distribution rules than someone in Florida or Texas. It’s important to understand your state’s rules, especially for blended families or situations where the default order might not reflect your wishes.