How Intestate Succession Works When Someone Dies Without a Will

What “Dying Intestate” Actually Means

If a person dies without a valid will, they’ve died “intestate,” and state law — not the family’s preferences — determines who inherits their probate estate. Every state has its own intestate succession statute, so the outcome depends heavily on where the decedent lived and where their real estate is located. There is no federal intestacy law; this is exclusively a matter of state statute.

Intestacy rules only reach probate assets — property titled solely in the decedent’s name with no beneficiary designation. Life insurance, jointly held property, payable-on-death accounts, retirement accounts with named beneficiaries, and property in a living trust all pass outside intestacy, directly to whoever is named. If you’re sorting out what needs to happen first, What to Do When Someone Dies covers the immediate steps before probate questions even arise.

Does an Intestate Estate Still Have to Go Through Probate?

Often, yes. Dying without a will doesn’t mean probate is skipped — many estates still require a court-supervised administration, especially where there are significant assets, debts, or family disagreement. Smaller or simpler estates may qualify for streamlined procedures, and some states allow heirs to skip formal probate entirely if everyone agrees on how to divide the property and there are no outstanding debts or creditors.

Where probate is needed, the court appoints a personal representative — usually called an “administrator” instead of “executor” since there’s no will naming one. Courts typically follow a priority order:

1. Surviving spouse or registered domestic partner
2. Adult children
3. Other family members, per the state’s statute

States also commonly restrict who can serve based on age, residency, citizenship, or criminal background. The administrator’s job is the same regardless of title: gather assets, pay debts and taxes, and distribute what’s left to the heirs the law identifies.

Who Inherits Under Intestate Succession?

Generally, only a spouse (or registered domestic partner, where recognized) and blood relatives inherit under intestacy laws. Unmarried partners, close friends, stepchildren who were never legally adopted, and charities receive nothing under default state law — no matter how close the relationship was. This is one of the most consequential gaps between what people might have wanted and what the law actually delivers, and it’s a strong argument for planning ahead rather than leaving distribution to statute.

Common patterns across states:

Family Situation	Typical Outcome
Spouse, no children	Spouse often inherits the entire estate (varies by state)
Spouse and children	Estate may be split between spouse and children, in proportions set by state law
Children, no spouse	Children inherit in equal shares; a deceased child’s share usually passes to their own descendants
No spouse or children	Estate passes to parents, then siblings, then more distant relatives (grandparents, aunts/uncles, cousins)
No living relatives found	The estate passes to the state

Adopted children are treated the same as biological children for inheritance purposes in every state. Stepchildren generally are not heirs unless they were legally adopted. Most states also have “slayer statutes” barring someone from inheriting if they criminally caused the death, and many bar a parent who abandoned or failed to support a child from inheriting from that child.

Texas as an Example

Texas’s intestate succession rules (Estates Code Chapters 201–205) illustrate how state-specific this gets. Texas is a community property state, so property is first sorted into separate property and community property before the statute’s shares apply. Generally, a surviving spouse and children inherit the probate estate; if there are no children or grandchildren, the estate may pass to the spouse, parents, siblings, nieces, nephews, or other heirs depending on the family situation. If a person leaves no spouse, the estate passes first to children and their descendants, then to parents, then to siblings and their descendants, and only then out to more distant paternal and maternal kindred.

Georgia as a Comparison

Georgia’s rules show a different structure. If there’s a spouse and/or children, the whole estate goes to them — but the split changes depending on how many children there are:

• Spouse, no children: spouse inherits everything
• Spouse and one child: split equally between the two
• Spouse and more than one child: spouse gets one-third; children split the rest equally
• Children, no spouse: children split the estate equally (including adopted children)

Without a spouse or children, Georgia’s order runs: parents, then siblings, then grandparents, then aunts and uncles (with a deceased aunt/uncle’s children inheriting their share), then first cousins, then more distant relatives determined by a statutory formula.

Community Property States Add a Layer

In community property states — including Texas, California, Arizona, Nevada, and others — a surviving spouse already owns an undivided half-interest in community property by law. Only the decedent’s half of the community property, plus any separate property, actually runs through the intestacy statute. This is why community property states often produce different-looking outcomes than “common law” states even when the family structure is identical.

What Happens to Minor Children?

If minor children need a guardian and there’s no will naming one, a judge appoints a guardian without any documented guidance from the parents. The judge gathers as much information as possible about the children’s circumstances and the deceased parent’s likely wishes, and decides based on the children’s best interests. This is one of the starkest arguments for having even a basic will — the decision that would otherwise be the parents’ is left entirely to a court.

Disputes and Complex Situations

Intestate succession statutes get more complicated at the edges:

• Half-siblings and half-blood relatives: Some states treat them identically to full-blood relatives; others reduce their inheritance share.
• Posthumously born children: Generally recognized as heirs if conceived before the parent’s death.
• Blended and unmarried-partner families: Unmarried partners get nothing under most state laws, regardless of how long the relationship lasted, unless the state recognizes a registered domestic partnership.

When there’s genuine disagreement about who should inherit, or a family dispute over the decedent’s wishes, it’s worth involving a probate attorney rather than relying on general guidance — state intestacy statutes are dense, and small factual differences (adoption status, timing of a child’s birth, marriage validity) can change outcomes significantly.

Practical Next Steps

If you’re managing an estate where there’s no will:

• Confirm whether the estate needs formal probate or qualifies for a simplified process.
• Separate probate assets (subject to intestacy) from non-probate assets (beneficiary designations, joint accounts, trusts) — only the former is governed by the statute.
• Identify the priority order for administrator/personal representative under your state’s law.
• Locate your state’s specific intestate succession statute, since shares and heir order vary meaningfully by state.
• If you’re also arranging funeral or burial services during this process, Calla’s checklist and funeral cost guide can help separate the immediate logistics from the longer probate timeline.

Whatever the family situation, this is also a good moment to think about your own estate: planning ahead with even a simple will avoids putting your own family through this same default process.