Not having a will when you die might not be a big deal if you made a plan to distribute your property using other estate planning tools, like a living trust. However, if you die without any plan for your property (called "dying intestate"), your state will distribute the property according to its laws of “intestate succession.” Most people would prefer to have the chance to choose who gets what, rather than leaving matters to the state. And you might want to make a will for other reasons as well—like naming an executor for your estate or guardians for young children.
State Laws Will Decide
Each state has a set of laws that determines who should get property if a deceased person does not have a will or other plan for distributing property. Generally, intestate laws give property to the deceased person’s closest relatives, and specify the order of priority—for example, a spouse, followed by children, followed by parents, followed by siblings, etc. Each state's laws are different. If you want to know how what would happen to your property if you die without a will, look up your state’s intestacy laws.
Community Property
If you die without a will and live in a community property state like California, your state's intestate succession rules may be significantly different than those in most other states. In a community property state, you and your spouse are each considered to own half of all property acquired during marriage. Your surviving spouse usually inherits your half of the community property.
The State Could Get Your Property (But Probably Won’t)
When a probate court follows the state’s laws for intestacy, but can find no living relative to inherit a deceased person’s property, the property goes into the state’s coffers. But this rarely happens—even if you don’t have living parents, children, siblings, aunts, uncles, nieces, or nephews, the court will try to find some distant cousin to give your property to before it goes to the state. So the worst case scenario probably won’t happen, but if you want any say about who should get your property, you should make an estate plan.
A Will Is Just One Tool—You Have Other Options
You don’t have to write a will to make a plan for your property. In fact, a will is just one tool in your estate planning tool box. See What Kind of Estate Plan Do You Need? For example, you can also use a living trust, beneficiary designations, pay on death accounts, joint ownership, and transfer on death deeds (in some states). And with all of these tools, your loved ones won't have to go through probate.
You Should Have a Will Even If You Have a Trust
Even if you do transfer most of your property though a living trust or other estate planning tools, you should still have a backup will. It's not uncommon to acquire property after you've made a living trust and forget or never get around to transferring the property to your trust. Any property you own at your death that is not in your living trust will be passed via your state's intestacy laws unless you have a backup will.
And even if you don’t use your will to transfer property, you can use it to name:
- an executor to lead the charge in wrapping up your estate
- a personal guardian to look after your minor children, and
- a property guardian to manage your children’s property.
In fact, you can name a personal guardian for your children only through a will.
A Trusts and Estates Lawyer Can Help
The law surrounding the property of those who die intestate can get complicated. If you have questions, or want help planning your estate, get help from a qualified trusts and estates lawyer.
Questions for Your Lawyer
- Can I use my will to disinherit my child?
- According to my state’s laws, what will happen to my property if I don’t make an estate plan?
- My cousin recently died without a will. I was his best and closest friend, and he was estranged from his parents—will they really get all of his property?