If someone dies without a valid will, state intestate succession law determines who may inherit. This guide gives you a practical way to identify the likely heirs, check spousal and child-related rules, evaluate small-estate procedures, and know when professional advice is important.
Overview
“Intestate” means a person died without a valid will covering some or all of the property. The probate court, or another authorized process, applies the law of the state that controls the estate. That law generally establishes an order of heirs rather than allowing family members to decide informally who receives property.
The result depends on more than whether the decedent was married. Important facts can include whether there are children, whether those children are also the surviving spouse’s children, whether a parent or sibling survives, whether the property is separate or marital or community property, and whether an asset passes outside probate through a beneficiary designation, joint ownership, or a trust.
There is no single national intestate succession rule. State statutes differ in heir order, the surviving spouse’s share, treatment of descendants, representation rules, and small-estate procedures. Use a current state-specific statute, court resource, or qualified probate lawyer before relying on a chart or taking action.
For a broad starting point, review Intestate Succession Rules by State. Then confirm the rule for the state connected to the decedent’s legal residence and, where necessary, the state where real estate is located.
Checklist by scenario
1. Start with the correct state and property type
- Identify the decedent’s legal residence at death and gather evidence such as a lease, tax records, or official address records if residence is disputed.
- List real estate located in other states. A separate proceeding or filing may be required in the state where that property is located.
- Separate probate assets from nonprobate assets. Life insurance, retirement accounts, payable-on-death accounts, jointly owned property, and properly funded trusts may follow their own transfer instructions.
- Do not assume that a durable power of attorney controls inheritance. A power of attorney normally ends at death; the estate transfer process begins then.
2. If there is a surviving spouse
- Confirm whether the marriage was legally valid at the time of death and check for a divorce, annulment, or pending proceeding.
- Identify whether all children are children of both spouses or whether either spouse has children from another relationship. This distinction can change the statutory share.
- Check whether the state recognizes community-property concepts or another marital-property system that affects ownership before intestate shares are calculated.
- Review jointly owned property, beneficiary designations, and marital agreements separately from the intestate estate.
3. If there are children or other descendants
- List every child, including adopted children, and gather records needed to establish the parent-child relationship.
- Ask how the state treats children born outside marriage. Parentage may need to be legally established, particularly when the child’s relationship to the decedent is disputed.
- Include descendants of a child who died before the decedent. The applicable representation rule may allow grandchildren or more remote descendants to inherit through that child.
- Do not automatically include stepchildren. A stepchild may inherit only if an adoption, agreement, beneficiary designation, or other rule provides a basis.
4. If there is no spouse or descendant
Many state systems move through a hierarchy that may include parents, siblings, nieces and nephews, grandparents, and more remote relatives. The order and stopping point vary. Build a family tree, verify which relatives survived the decedent, and document deaths, adoptions, name changes, and possible missing heirs.
5. If the estate may qualify as small
- Inventory the assets that count toward the state’s small-estate limit. The limit may not apply to every asset or may be calculated under a specific statutory method.
- Check the waiting period, affidavit requirements, notice rules, creditor protections, and who is permitted to use the procedure.
- Confirm whether real estate can be transferred through a small-estate affidavit or requires a different process.
- Use the official court form and current instructions for the relevant jurisdiction. “Small estate” limits and procedures are state-specific and can change.
Before making a complete inventory, use the Estate Inventory Worksheet for Families and Executors. It can help separate ownership, debts, beneficiary assets, and property that may require court administration.
What to double-check
Per stirpes versus per capita. These terms describe how a deceased beneficiary’s descendants may receive a share. “Per stirpes” is commonly used to describe inheritance through a family branch, while “per capita” can divide shares among people at the same level. The exact legal meaning depends on the state’s statute, so do not calculate shares from terminology alone.
Separate and community property. In states using community-property rules, property acquired during marriage may be analyzed differently from separately owned property. Title alone may not answer the ownership question. Gather purchase records, account statements, marital agreements, and evidence of inheritances or gifts.
Heirship evidence. Birth certificates, adoption orders, marriage certificates, death certificates, and court judgments may be needed to establish who inherits. A family understanding is not always enough for a court, bank, title company, or transfer agent.
Debts and creditor claims. An heir’s expected share is not the same as the estate’s gross value. The personal representative generally must identify assets, address valid debts and expenses, follow notice requirements, and distribute only after the estate obligations are handled. See the Executor Duties Checklist for a practical administration sequence.
Business ownership. A business interest may be subject to an operating agreement, buy-sell agreement, loan covenant, or transfer restriction. Owners should not assume intestate succession will place the business with the person best prepared to operate it. The estate planning guide for small business owners covers ownership-transfer planning in more detail.
Common mistakes
- Assuming the surviving spouse automatically receives everything.
- Treating a state summary chart as a substitute for the current statute or court instructions.
- Counting a life insurance policy or jointly owned account as probate property without reviewing its terms.
- Ignoring a handwritten, older, damaged, or electronically stored document that might affect the analysis.
- Distributing property before identifying debts, taxes, claims, and unknown heirs.
- Assuming a stepchild, unmarried partner, close friend, or caregiver inherits automatically.
- Using the small-estate affidavit simply because the estate feels modest, without checking the statutory threshold and exclusions.
- Overlooking out-of-state real estate or a business interest.
If the family relationship is disputed, a beneficiary is missing, the estate includes substantial property, or someone may contest the process, consult a probate lawyer before signing releases or distributing assets. If the decedent had a trust, compare this analysis with the revocable living trust versus will guide.
When to revisit
Recheck this information whenever a death occurs, a family relationship changes, property is discovered, or the estate crosses a small-estate threshold. State legislatures and courts can change intestate succession laws, affidavit limits, filing requirements, and community-property rules. A chart that was accurate during one probate may not be accurate for the next.
For estate planning, revisit the analysis after marriage, divorce, the birth or adoption of a child, a death in the family, a move to another state, a major asset purchase, or the launch or sale of a business. Compare the likely intestate result with your intended plan. A will can nominate beneficiaries and a personal representative, but it may not control assets that pass by contract or title. A trust or updated beneficiary designations may also be relevant.
Action checklist:
- Identify the controlling state and any out-of-state real estate.
- Gather the death certificate, family records, account statements, deeds, beneficiary forms, and possible estate documents.
- Map the surviving spouse, children, descendants, parents, and other relatives.
- Classify probate and nonprobate assets and list debts separately.
- Check the current state rules for heir order, representation, marital property, and small-estate procedures.
- Pause distributions until the required court or affidavit process is confirmed.
- Obtain an estate lawyer consultation when facts are disputed, assets are complex, or the state-specific answer is uncertain.
