When a person dies without leaving a will, he is said to have died intestate. All states have laws that kick in under these circumstances, and they vary by state. Intestacy laws set out the order of who will inherit the estate of a person who dies without a valid will. The primary residence of the deceased usually determines which state laws apply.
Intestate Laws of Inheritance
With no valid will to guide estate distribution, state laws step in. Although the Uniform Probate Code was developed to provide some consistency across state inheritance laws, only parts of the code have been adopted and by a minority of states. Each state's intestacy laws clearly delineate which relatives will inherit a portion of the deceased person’s estate, as well as the percentages they will receive.
First in Line
In almost every case, a surviving spouse will be the first to receive a portion of the estate. If the surviving spouse has only minor children with the deceased person, the surviving spouse will receive the entire estate in most cases. If adult children survive in addition to the spouse, the estate will be split among the surviving spouse and the adult children. The portions each will receive can vary, depending on the state. For example, in Indiana, the surviving spouse receives one-half of the estate and the other half is split evenly among the children. If the spouse is a second or subsequent spouse with no children with the deceased person, the spouse will often receive less than half of the estate. In most cases where there is no spouse and only children, the children will split the estate evenly.
More Distant Heirs
If there is no surviving spouse or children, most state intestacy laws move to the deceased's parents as next in line to inherit. But some states, like Indiana, include the deceased's parents even if there is a surviving spouse and no children. In that case, Indiana law awards the surviving spouse three-fourths of the estate, with one-fourth going to the living parent or parents of the deceased. If the parents are no longer alive, the next heirs are the deceased's siblings. If the search for an heir has gotten this far, nieces and nephews may step into the place of a deceased sibling to inherit that person's share.
Read More: Who Are Heirs to a Last Will & Testament?
No One to Be Found
The search for someone to inherit a deceased person’s estate can go far and wide, with many states including provisions for grandparents, aunts, uncles and cousins. State intestacy laws are designed, for the most part, to ensure that a family member will inherit an estate when there is no will to name beneficiaries. The steps required to find heirs vary, but most states require searching the telephone book and Internet, as well as talking to friends or associates who may know about a relative. When an heir cannot reasonably be located, the property in the estate will escheat, or pass, to the state.
- Cornell University Law School, Legal Information Institute: Uniform Probate Code
- National Paralegal College: Intestate Succession Rules
- Living Trust Network: Alaska's Intestacy Laws
- State of Indiana: Indiana Code, Section 29-1-2, Intestate Succession and Rights of Certain Interested Persons
- Kent A. Jeffirs: What Happens with No Planning?
- Allen Wellman McNew: A Surprise for the Surviving Spouse: Intestate Succession Laws in Indiana
- Wills, Trusts, and Estates; Jesse Dukeminier, et.al.
Matthew Derringer is an attorney, but he is also a prolific writer and editor of online content. He has written hundreds of blog posts for law firms throughout the country, including Q&A posts, topical posts and persuasive posts. He has edited thousands more.