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Intestate: Definition and State Rules

What Is Intestate?

Intestate refers to dying without a legal will. When a person dies intestate, deciding how their assets will be distributed becomes the responsibility of a state probate court. An intestate estate can also be one in which the will presented to the court was deemed to be invalid.


  • When a person dies intestate, it means they left no legal will.
  • If there is no will to go by, a state probate court will determine how the person’s estate will be distributed.
  • Courts generally establish a hierarchy, with spouses and other close relatives being first in line to receive the assets.

Understanding Intestate

When an individual who has a valid will dies, their assets will be divided among the beneficiaries listed in that will as well as through any trusts that they might have established.

However, many people die without preparing a will. In fact, a 2021 Gallup poll showed that only 46% of Americans age 18 or older had a will. The percentage does rise among older people, Gallup found, but even at ages 65 and up, only 76% of Americans reported having one.

Gallup News. “How Many Americans Have a Will?”

If a person dies without a will, they are said to have died intestate. Dying “in intestacy” means that a state probate court will have to determine how their assets are to be distributed.

It is crucial for most people to make a will, often with the assistance of an attorney, to ensure that their assets will go to the people or organizations that they want them to go to. Otherwise, a court may decide to distribute the estate to people whom the deceased person never would have chosen. It is also important for people to make sure their will is kept up to date, in case their wishes change.

How the Probate Process Works If You Die Intestate

Probate courts typically begin the process by appointing an administrator to oversee the estate of the deceased. The administrator will compile a list of the deceased’s assets, pay off any debts, and then distribute the remaining assets to the parties deemed beneficiaries by a probate judge.

In other words, an administrator functions like an executor (a legal representative normally named in a will).

One of the administrator’s duties is to locate the legal heirs of the deceased, which could include surviving spouses, children, parents, siblings, and other relatives. The order in which heirs inherit from a decedent’s estate when there is no will to rely on is called intestate succession. The probate court will decide who gets what.

How assets will be distributed can vary from state to state. The laws in most states divide property among the surviving spouse (if any) and children (if any) of the deceased.

In community property states, spouses are considered to be joint owners of any property acquired during the marriage and are typically entitled to at least half of the estate. Current community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, along with the U.S. territories of Guam and Puerto Rico.

In other states, mostly common law states, the distribution hierarchy also starts with the surviving spouse. Depending on the court’s determination, they may receive less than half, more than half, or even the entire estate if the dead person left no living children or grandchildren.

If the person was unmarried or widowed at the time of their death, their assets will be divided among any surviving children before any other relative. If no next of kin can be located, then the assets in the estate will become the property of the state. This is referred to as escheatment.

Close friends of the deceased are not usually part of the list of beneficiaries under a state’s probate laws for intestate estates. However, if the deceased had a joint account with right of survivorship or owned property jointly with another person, then the joint asset will automatically belong to the surviving party (or parties).

What Does It Cost to Make a Will?

According to Investopedia’s estimates, the cost of making a will can be as little as $10 or so if you use a do-it-yourself kit. If you engage a lawyer (often a good idea), expect to pay anywhere from $150 for a simple will to $1,000 and up for a more complicated one.

What Is the Advantage of a Trust?

A trust can be a way to bypass the probate process (which all wills typically go through) so that heirs receive their inheritances more smoothly and quickly. People with trusts often have a pour-over will as well, to handle the disposition of any assets that aren’t accounted for in their trust.

What Is a Testamentary Will?

A testamentary will is another name for a traditional will, sometimes referred to as a last will and testament. The person whose wishes the will represents is known as the testator.

The Bottom Line

When a person dies intestate, it means that they didn’t leave behind a legal will. In that case, a state probate court will determine who will receive their assets. To avoid that possibility and to ensure that their assets go to the people or organizations that they want them to go to, most people should have a will and keep it up to date.


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Renee E. Nesbit, Attorney at Law

1415 Panther Lane, Suite 434
Naples FL 34109

The information contained on this website is presented for informational and marketing purposes only and is not to be understood as legal advice. You should consult an attorney for advice respecting your individual needs. Renee E. Nesbit, Attorney at Law looks forward to speaking with you about your particular needs. Please note, however, that the mere act of contacting our firm does not create an attorney-client relationship. As a result, you should never send any confidential information to our office until a Representation Agreement has been signed by both you and Renee E. Nesbit, Attorney at Law.

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