What happens if you die without a will?

What happens if you die without a will depends on a few factors, like what you possessed before your death. States have probate, intestate, and next of kin laws to determine where your assets go after your death.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Apr 1, 2022

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Overview

  • States will try to give your heirs your property based on next of kin if you die without a will
  • States can absorb any money and property you leave with a bank after it goes unclaimed for a certain number of years
  • You can pass on some assets without a will, but a document is best for settling possession and custody issues

What happens if you die without a will? For example, could your state take all your assets, or could one person claim it?

If you die without a will and your estate is extensive, your heirs will likely go through the probate process to determine who gets what. Dying without a will is called intestacy, so your state and a probate court will largely dictate what happens next.

While you can pass on some things to heirs without a will, it is best to have such a document to make your wishes apparent. It protects your heirs’ inheritances. Also, if you have children, you may want to help determine who adopts them if they become orphans.

Read on to know more about what happens if you die without a will and what you can do to keep your affairs in order.

What happens if you die without a will?

Remember that estate planning law can involve intestate succession, next of kin, and probate law.

About Intestate Succession and Next of Kin

Your state will try to divide your intestate property among your kin. Also, if you have any minor children, the state may try to place your children with your next of kin.

There is no federal requirement for next of kin, and states have different laws regarding the process. In general, this is the level of succession for next of kin:

  • Spouse
  • Child
  • Parent
  • Sibling
  • Grandchild
  • Niece or nephew
  • Grandparent
  • Aunt or uncle
  • First cousin
  • Great grandparent
  • Great aunt or uncle
  • Second cousin

Some states might have stipulations past that level, based on any living relative you have. Also, some states allow registered domestic partners or common-law spouses to inherit.

Additionally, states will stipulate how much your heirs will receive. For example, your spouse will likely receive the largest share of the property if you have living descendants. Also, states may have rules regarding a posthumous relative’s rights to inheritance whether their parents conceived them before your death or not.

How the Probate System Works

If you reside in one of the 18 states that follow the Uniform Probate Code (UPC), the probate process will generally follow similar steps with or without a will.

Your beneficiaries may prefer the informal process, but a court may allow for a formal unsupervised or mandate a formal supervised process. The informal process is quicker and involves these steps:

  • Someone petitions the court to be the executor of your estate and gets the court’s approval. Alternatively, the court appoints an administrator.
  • The executor presents your will, and the court must validate it.
  • The executor does an inventory of your property and has it appraised.
  • Your heirs receive notice of the probate process from the executor.
  • The executor may sell your property if the court grants them the authority.
  • Your heirs pay your outstanding debts and taxes on the property.
  • The executor distributes the rest of your assets.

Note that six states have inheritance taxes.

States With an Inheritance Tax
StateInheritance Tax Rate
Iowa0%-15%
Kentucky0%-16%
Maryland0%-10%
Nebraska1%-18%
New Jersey0%-16%
Pennsylvania0%-15%
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Twelve states, plus the District of Columbia, have estate taxes.

States With an Estate Tax
StateTax Exemption ThresholdEstate Tax Rate
Connecticut$7.1 million10.8%-16%
District of Columbia$4 million11.2%-16%
Hawaii$5.5 million10%-20%
Illinois$4 million0.8%-16%
Maine$5.8 million8%-12%
Maryland$5 million0.8%-16%
Massachusetts$1 million0.8%-16%
Minnesota$3 million13%-16%
New York$5.9 million3.06%-16%
Oregon$1 million10%-16%
Rhode Island$1.6 million0.8%-16%
Vermont$5 million16%
Washington$2.2 million10%-20%
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Also, if you do not leave a will, the court may appoint your spouse or one of your descendants as an executor. And if you have no known kin, the state may absorb your property.

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What happens to a bank account if someone dies without a will?

If you die without a will, your escheat laws come into play. Every state has an escheat law, and financial institutions must report abandoned property. The Federal Deposit Insurance Corporation is one such institution.

Escheat laws exist to prevent banks from absorbing bank account holders’ money if those individuals happen to forget about those accounts. But if you have no activity in your bank account after three to five years, your bank may close your account and give the money, bonds, or items you have in a safe deposit box to the state.

After the state takes possession of your bank assets, it will hold them for about 18 months before adding any funds to its coffers. The state will sell property with any value and keep the proceeds.

Escheatment can happen to you while alive, but there is a way for you to claim your money and property. As the Securities and Exchange Commission notes, you must verify your identity and fill out some forms. You can have them mailed to you or use an online form.

In the event of your death, probate and intestate laws still apply. An executor would need to locate your property, and any heirs would need to prove their relation to you.

The FDIC has a handy state unclaimed property department locator. Also, the National Association of Unclaimed Property Administrators has a mission to help property owners and heirs reclaim what is rightfully theirs.

What Happens If You Die Without a Will: Tips for Keeping Your Affairs in Order

Dying without a will means you lose control of what happens to your property unless you do one of the following things before your death:

  • Open a joint account with your spouse, a child, or someone you trust. If you die first, the other person becomes the sole owner of the bank account.
  • Make your bank account payable upon death. The proceeds will go to the person you’ve named as your beneficiary.
  • Name a power of attorney. A power of attorney can make financial decisions for you when you cannot. However, the person who has this power can abuse it and deny your heirs their inheritance. Name someone you can trust and alert your heirs so they can hire an attorney.
  • Keep excellent records. Keep track of your bank accounts, bonds, and valuables. Remember that escheatment can also happen if you are still living, so keep track of your bank accounts and use them now and then.

Ultimately, it is better to have a will with guardianship provisions if you have valuable assets and want to resolve any child custody issues before they arise. The document ensures that you leave a legacy to your heirs and that someone can take care of them when you cannot.

We hope this information about what happens if you die without a will helps you move forward. Visit our forums to talk to our legal community if you need more legal advice.

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