Transfer of Property After Death Without a Will

The transfer of property after death without a will is determined by state laws, often awarding property to the spouse. However, intestate succession laws can vary by state, and who inherits the property will depend on what state the property is in.

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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 7, 2022

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Overview

  • State intestate succession laws will determine the transfer of property after death without a will
  • State laws will apply where the property exists, not where the deceased lived or claimed permanent residence
  • When someone dies without a will, their surviving spouse or children are often the first in line to inherit property

How long do you have to transfer property after death? That depends on where the deceased owned the property. State intestate succession laws will dictate the transfer of property after death without a will. Still, the process will be much quicker if a notarized Last Will and Testament designates the executor of the estate and its heirs.

If you need to transfer property after death without a will, be prepared for a lengthy, stressful process. The probate court will take control of the estate and may decide to sell any property to cover debts. 

Most often, the transfer of property after death without a will starts with the spouse and children. If none are surviving, ownership can transfer to a surviving parent or sibling. Hire an attorney with experience in estate planning law to determine the next best steps you should take when a loved one dies without a will.

Our guide discusses how to start the transfer of property after death without a will and ways you can quicken the process. Keep reading to learn more about the intestate laws in your state and how to get in touch with local estate planning attorneys in your area.

What happens to the transfer of property after death without a will?

When someone dies without a will, it means they died intestate. Intestate succession laws will immediately apply, and ownership of the estate will be transferred to the court. Without an official document to name heirs and beneficiaries, the probate court will decide the future of the estate and any property it includes.

If the property is not sold to cover the debts or taxes on the estate, ownership will transfer to the next of kin based on the state laws where the property exists.

In general, you can expect the transfer of property after death without a will to go to the:

  • Spouse
  • Children
  • Parents
  • Siblings
  • Grandchildren, nieces, and nephews
  • Grandparents
  • Aunts and uncles
  • Cousins

However, if the property in question is co-owned with someone (known as joint tenancy), then the co-owner would inherit the deceased’s share without probate.

How does probate work? When there’s a will, the process is easy — the court will confirm your will is valid and ensure the executor follows what is written in the document. Unfortunately, without a will, probate must be involved in every step of the process.

First, the court will appoint an executor following the order listed above. Then, it will determine what’s needed to cover taxes and debts, if any. Finally, it will divvy up property based on the surviving heirs.

Survivors can gather any documents they have that show how the deceased wanted the estate to be handled. However, without an official notarized will, the court isn’t obligated to honor their wishes. You may want to hire an attorney to help protect the best interests of your loved ones.

How will my state’s intestate succession laws impact the transfer of property?

Only 18 states follow the Uniform Probate Code, which follows the heir succession listed above. If you don’t live in one of those 18 states, you will want to research your state laws, as they can vary wildly regarding inheritance.

Remember, transfer of property laws are determined by the state where the property is owned, not where the deceased lived or died. Therefore, if the deceased owned multiple properties, you could be dealing with many different state intestate laws to determine who inherits what.

For example, when a person dies without a will in New York, the spouse is not entitled to the property. If there are surviving children, the spouse will only inherit half of the property in the estate. 

Intestate succession laws in California are also different. Transfer of property after death will often go to the surviving spouse and children. However, if the property was previously inherited from a deceased spouse and there are no surviving children, the property will return to that spouse’s side of the family.

Beyond intestate succession, state estate planning laws also dictate how taxes are paid. For example, when someone dies, their estate is responsible for paying the taxes on the property and assets before they are divided up among the heirs.

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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As you can see, not every state requires an estate tax. Even fewer require an inheritance tax:

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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If you live in Maryland, you are required to pay both estate and inheritance taxes.

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Is probate necessary for the transfer of property after death?

Yes, probate is inevitable. Even if someone dies with a will, the probate court follows the terms of that document. It cannot influence the process unless an inheritor contests the will. If that is the case, you will need to hire an estate planning attorney as soon as possible.

However, there are many instances when the transfer of property after death without a will is possible without probate. For example, you can inherit property and avoid probate court when:

  • You’re listed as the beneficiary in a living trust
  • You’re listed as the beneficiary in a transfer-on-death deed
  • You co-own the property with the deceased

You may also avoid probate court when inheriting from a life insurance fund, retirement plan, or from a payable-on-death or transfer-on-death account.

What You Need to Know About the Transfer of Property After Death Without a Will

State intestate succession laws will determine who inherits the property when someone dies without a will. A probate court will name an executor of the estate, most often a surviving spouse or child, who will be responsible for handling the taxes, debts, and claims on the estate.

Can a will reduce estate taxes? Unfortunately, no, but writing a will can save your family the stress of court and protect your assets from being sold or used against your wishes.

Sometimes, the court may sell the property to cover any debts or taxes owed by the estate. The surviving spouse and children will inherit any remaining property in most states, but state laws will vary when it comes to the succession of inheritance. 

However, writing a will and naming your own heirs will stop the probate court from selling your property. There are different types of wills, and an estate planning attorney can help you find the one that fits your lifestyle.

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