Dying without a will — dying "intestate" — leaves the distribution of your estate to a state statute written by legislators who never met you, never knew your family, and never heard your preferences. Every state has an intestacy statute, modeled loosely on the Uniform Probate Code (UPC) § 2-103 but with significant state-by-state variations in how the estate is divided among a surviving spouse, descendants, parents, and more remote relatives. The probate court appoints an administrator (typically the closest willing relative) to inventory the assets, pay the debts, and distribute the residue according to the statute. Real property, bank accounts, vehicles, and personal effects all pass under the statute, while assets with beneficiary designations (life insurance, retirement accounts, payable-on-death accounts) pass outside probate regardless of whether there is a will. The cost of intestate probate — typically 3 to 7% of the gross estate in attorney fees, plus court costs and personal representative fees — is the same as probate with a will, but the distribution often disappoints family members who assumed the law would do what the deceased would have wanted.
Intestacy: What the Statutes Cover
Intestacy statutes cover only assets that pass through probate — assets titled in the deceased's name alone without a beneficiary designation. The statutes do not affect life insurance proceeds, retirement account balances, annuities, payable-on-death bank accounts, transfer-on-death vehicle registrations, or jointly held property with rights of survivorship. They also do not affect assets held in a revocable or irrevocable trust, which pass according to the trust instrument regardless of whether the deceased had a will. For many Americans, the majority of their estate passes outside probate, making the intestacy statute relevant only for the residue — the house, the personal effects, the solely held bank accounts, and any other assets that did not have beneficiary designations.
The intestacy statutes are also subject to a heirship determination process that can be complicated in families with blended relationships, half-siblings, adopted children, and children born outside marriage. Most states have adopted some version of the Uniform Parentage Act, which establishes that a child born to unmarried parents is the legitimate child of both for inheritance purposes once parentage is established — but the rules vary. Children adopted into a family inherit from their adoptive parents but generally not from their biological parents, and children born of assisted reproductive technology inherit from the intended parents under statutes modeled on the Uniform Probate Code § 2-119, but only if specific statutory conditions are met. The complexity of heirship determination is one of the reasons intestate probate can drag on for a year or longer, particularly when distant relatives must be located and served with notice of the probate proceeding.
Spouse and Descendants: The Three Common Patterns
The three most common intestacy patterns for distributing assets between a surviving spouse and descendants are: (1) the spouse takes everything if there are descendants who are all also descendants of the surviving spouse; (2) the spouse takes the first dollar amount plus a share of the remainder, with the descendants taking the rest; and (3) the spouse takes a fractional share and the descendants take the rest. The first pattern, used in the Uniform Probate Code § 2-102(1) and adopted in states including Florida and Texas (for community property), reflects the assumption that the surviving spouse is the natural primary beneficiary when all descendants are also the spouse's children. The second pattern, used in New York and many other states, gives the surviving spouse the first $50,000 (in New York's case) plus half the remainder, with the descendants splitting the other half of the remainder.
The third pattern, common in community property states like California and Texas, treats the deceased's separate property differently from community property. In California, the surviving spouse takes all the community property (which already belonged half to the spouse), but takes only one-third of the separate property if the deceased has one child, one-half of the separate property if there are two children, and one-third of the separate property if there are three or more children, with the children splitting the rest. In Texas, the surviving spouse takes all the community property if the deceased has no descendants or if all descendants are also the spouse's descendants; if the deceased has descendants from another relationship, the surviving spouse keeps only their own half of the community property and the deceased's half passes to the descendants. These patterns produce dramatically different distributions for the same family situation depending on the state of domicile at death, which is why a will is essential for anyone with a blended family or significant separate property.
State Variations: California, Texas, New York, Florida
California's intestacy statute, codified at California Probate Code § 6401 and § 6402, applies community property principles: the surviving spouse takes 100% of the community property and the deceased's separate property passes according to a tiered formula. If the deceased has no descendants and no surviving parents, the spouse takes 100% of the separate property. If the deceased has one child, the spouse takes one-half of the separate property and the child takes the other half. If the deceased has two children, the spouse takes one-third of the separate property and the children split the other two-thirds equally. If the deceased has three or more children, the spouse takes one-third and the children split the remaining two-thirds. California's probate fees are also among the highest in the country, calculated as a percentage of the gross estate under Probate Code § 10800 — approximately $13,000 in attorney fees for a $500,000 estate, plus a similar amount for the executor.
Texas Estates Code § 201.001 and § 201.003 govern intestate distribution in Texas, also a community property state. The surviving spouse takes all the community property if there are no descendants or if all descendants are also the spouse's descendants. If the deceased has descendants from another relationship, the surviving spouse keeps their own half of the community property and the deceased's half passes to the descendants. For separate property, the surviving spouse takes one-third if there are descendants (with the descendants taking the other two-thirds) or all of it if there are no descendants but surviving parents or siblings. New York's Estates, Powers and Trusts Law (EPTL) § 4-1.1 gives the surviving spouse the first $50,000 plus one-half of the remaining estate if there are descendants, with the descendants splitting the other half. Florida Statute § 732.102 gives the surviving spouse 100% of the estate if there are no descendants or if all descendants are also the spouse's descendants; if the deceased has descendants from another relationship, the spouse takes half and the descendants take half. These four-state examples illustrate how dramatically the distribution changes based on state law.
Children from Prior Relationships
Children from prior relationships are the most common source of intestacy disputes, because the intestacy statutes were largely written for the nuclear family of the mid-20th century and struggle to handle blended families. The general rule under the Uniform Probate Code § 2-107 and the law of virtually every state is that a child is the child of both biological parents for inheritance purposes once parentage is established, regardless of the marital status of the parents. Children from a prior marriage inherit from their biological parent on the same terms as children from the current marriage. Stepchildren, by contrast, do not inherit from a stepparent under intestacy unless the stepparent legally adopted them — a common source of disappointment when a long-time stepparent dies without a will and the stepchildren, who may have been the stepparent's primary caregivers, receive nothing.
The same principle applies in reverse: a surviving spouse who is not the parent of the deceased's children from a prior relationship may find that the deceased's half of the community property (or a substantial portion of the separate property) passes to those children rather than to the spouse. This is the "mom's house" problem — a widow who has lived in the family home for decades may discover that the deceased's children from a prior marriage now own a fractional interest in the home and may force a sale. A will or revocable trust can solve this problem by leaving the home to the surviving spouse for life (a "life estate") with the remainder to the children, or by leaving the home outright to the spouse. A premarital agreement can also waive intestacy rights and provide for a negotiated distribution. Families with children from prior relationships should always have a will and a clear plan for the family home, retirement accounts, and other significant assets.
No Spouse, No Descendants: Parents and Siblings
When the deceased leaves no spouse and no descendants, the intestacy statutes look to the next of kin in a defined order. The most common pattern, modeled on the Uniform Probate Code § 2-103(3) and (4), is: (1) parents equally, or the surviving parent if only one is living; (2) if no parents, then siblings (whole blood siblings and half siblings generally inherit equally under most state statutes); (3) if no siblings, then nieces and nephews by representation; (4) if no nieces and nephews, then grandparents; (5) if no grandparents, then aunts, uncles, and cousins. The "by representation" or "per stirpes" distribution means that the share of a deceased sibling passes to that sibling's children (the deceased's nieces and nephews), rather than being divided among the surviving siblings.
Half-blood relatives inherit under most state statutes on the same terms as whole-blood relatives, though a minority of states (including a few southern states) give half-blood siblings a smaller share. Adopted children inherit from their adoptive parents and adoptive siblings, but most states do not allow adopted children to inherit from their biological parents once the adoption is finalized — though some states, including California and Texas, have created exceptions for adoptions by stepparents where the child continues to live with the biological parent. Children born outside marriage inherit from their mother once parentage is established, and inherit from their father under the standards of the Uniform Parentage Act or state equivalent — typically requiring an acknowledgment of paternity, a court order, or clear and convincing evidence of paternity. Posthumous children (conceived before the parent's death but born after) inherit under most statutes, while children conceived after the parent's death using frozen genetic material inherit only under specific state statutes — the Uniform Probate Code § 2-120 permits posthumous conception inheritance if the child is in utero within 36 months of the parent's death.
Escheat: When No Heirs Can Be Found
If the deceased leaves no heirs within the degrees specified by the intestacy statute — typically no relatives within the cousin degree — the estate "escheats" to the state. Escheat is a doctrine inherited from English common law and codified in virtually every state's probate code, including California Probate Code § 6402 (last paragraph), New York EPTL § 4-1.1(5), and Texas Estates Code § 201.001(d). Before the state takes the estate, the probate court typically requires a diligent search for heirs, including publication of notice in newspapers, searches of genealogical databases, and the use of professional heir search firms that work on contingency. Heir search firms, which advertise in probate publications and contact distant relatives who may not know they have an inheritance interest, charge 25 to 40% of the inheritance as their fee — a fee that the probate court generally approves if the firm actually located the heir.
The diligent search requirement is significant because the state's claim to the estate is generally the lowest priority — the state takes only what no relative can claim. Even very distant relatives (third cousins, for example) inherit before the state takes under escheat, and the Uniform Probate Code § 2-107 extends inheritance to relatives within the "degree of kindred" defined by state law, which in some states extends to ninth cousins. State unclaimed property offices hold escheated estates for a period of years (typically 10 to 25 years) before the funds are absorbed into the state's general fund, during which time a previously unknown heir can come forward and claim the inheritance. The National Association of Unclaimed Property Administrators (NAUPA) maintains a free search database at MissingMoney.com where heirs can search for unclaimed property held by participating states. Escheat is rare — fewer than 1% of probate proceedings result in any state claim — but it is the ultimate consequence of failing to plan for the disposition of one's estate.
Practical Consequences of Intestacy
The practical consequences of intestacy extend well beyond the distribution formula. Without a will, the probate court appoints an administrator — typically the closest willing relative under a statutory priority list (surviving spouse first, then adult children, then parents, then siblings) — and the administrator must post a bond (an insurance policy protecting the estate against the administrator's misconduct) unless all heirs waive the bond. The administrator's powers are limited to those granted by state statute, which often require court approval for major actions such as selling real estate, whereas a will can grant the executor broad powers without court supervision. The intestate administration process typically takes 9 to 18 months, during which the estate's assets are tied up and the heirs cannot access them.
Intestacy also creates disputes that a will could have avoided. Heirs disagree about who should serve as administrator, whether real estate should be sold or kept, how personal effects should be distributed, and whether one heir's claimed contribution to the deceased's care should be compensated. The lack of a designated executor means that even routine matters — accessing the deceased's bank account to pay utilities, listing the home for sale, distributing the contents of the home — require court approval. Minor children inherit outright at age 18 in most states, which can be disastrous for a $200,000 inheritance; a will can establish a trust that manages the inheritance until the child reaches a more mature age. The cost of intestate probate — typically 4 to 8% of the gross estate, including attorney fees, executor fees, and court costs — is comparable to or slightly higher than probate with a will, so the cost of writing the will (typically $300 to $1,500 for a simple will) is recouped many times over in a single estate. For more, see our probate process guide and our avoiding probate strategies.
Frequently asked questions
Not necessarily. In community property states like California and Texas, your spouse keeps their own half of the community property and your half passes under the intestacy statute — which may give your children from a prior relationship a share, or give your parents a share if you have no children. In common-law states like New York and Florida, your spouse takes the first $50,000 plus half the remainder in New York, or half the estate in Florida if you have children from another relationship. Only if all your descendants are also your spouse's descendants and you have no surviving parents do most state statutes give the spouse the entire estate. A will ensures that your spouse receives what you intend, regardless of state law.
No. Under the intestacy statutes of every state, stepchildren do not inherit from a stepparent unless the stepparent legally adopted them. The intestacy statutes recognize biological and adoptive parent-child relationships, but not the in loco parentis relationship that develops over years of a stepparent-stepchild bond. If you want your stepchildren to inherit from you, you must execute a will or trust naming them as beneficiaries, or formally adopt them. The same rule applies to long-term unmarried partners — they inherit nothing under intestacy, regardless of the length of the relationship, unless a will or trust provides for them.
The probate court appoints a guardian for your minor children based on the "best interests of the child" standard, with input from family members. If the other parent is living and fit, that parent typically takes custody. If both parents are deceased or unfit, the court considers the deceased's family members (typically grandparents first, then adult siblings) and may also consider close family friends. Without a will naming a guardian, the court has no guidance on your preferences, and family disputes over guardianship are common. A will is the only way to nominate a guardian for your minor children, and while the court retains ultimate discretion, the deceased's nomination is given substantial weight in virtually every state.
For more, see our probate process guide, our small estate affidavit guide, or try our probate fee calculator to estimate the attorney and executor fees on an intestate estate.
Last reviewed June 30, 2026. This article is informational and does not constitute legal, tax, or financial advice. Consult a qualified professional for guidance specific to your situation.