What to Do When Someone Dies Without a Will

Intestacy Means the State Writes the Will

When a person dies without a valid will — what the legal system calls dying "intestate" — they haven't escaped estate planning. They've just handed it to the state legislature. Every state has an intestacy statute that determines how probate property is distributed among heirs, in what proportions, and in what order. Beneficiary-designated and survivorship assets may pass outside that process. You don't get to negotiate with the statute.

Potential heirs commonly include a surviving spouse, children, parents, siblings, and more distant relatives, but their priority and shares depend on the state's intestacy statute. If no eligible heirs can be found, probate property may eventually escheat to the state.

What the hierarchy often excludes are unmarried partners who are not recognized as spouses, stepchildren who were never legally adopted, close friends, and anyone else the law does not recognize as an heir. A common-law marriage may change a partner's status in a jurisdiction that recognizes it. Shared expenses alone do not necessarily create inheritance rights.

The First Steps When There's No Will

The immediate tasks are the same whether or not there's a will. The differences emerge when you try to establish authority over the estate.

Within the first week:

• Obtain 10–15 certified copies of the death certificate — here's how
• Secure the deceased's home and personal property against theft or damage
• Locate any safe deposit box keys, financial records, insurance policies, and tax returns
• Identify all known assets and debts — bank accounts, real estate, vehicles, credit cards, loans

Early in the process:

• If the estate requires probate, petition the court for letters of administration — the court document that appoints an administrator to manage the estate. Without a will naming an executor, local law determines who may serve and how the court appoints them.
• Obtain an Employer Identification Number (EIN) from the IRS for the estate — it's free and takes five minutes online via Form SS-4
• Open an estate bank account to receive funds and pay obligations
• Check the court's creditor-notice rules; where required, notify creditors directly or through a published legal notice

How Intestacy Succession Actually Works

The exact split depends on your state, but most follow a pattern close to this:

If there's a surviving spouse and children who are also the spouse's children: The spouse typically receives the entire estate, or the estate minus a fixed amount plus a percentage (varies by state).

If there's a surviving spouse and children from another relationship: The spouse receives a share (often one-third to one-half), and the children split the rest equally.

If there's no surviving spouse: Children inherit equally. If a child predeceased the parent but has their own children, those grandchildren typically inherit their parent's share.

If there's no spouse and no children: Parents inherit. If no parents survive, then siblings. Then nieces and nephews. Then grandparents. Then aunts and uncles. The search goes outward along the family tree until someone qualifies.

If there's no identifiable heir at all: The estate escheats — it becomes property of the state.

The Administrator's Job

The court-appointed administrator has many of the same duties as an executor named in a will. The court may require a surety bond to protect the estate, but whether one is required and its amount depend on local law and the court.

The administrator's responsibilities include:

• Inventorying all assets and filing the inventory with the court
• Publishing notice to creditors and paying valid claims from estate funds
• Managing and preserving estate assets during the administration period
• Filing the deceased's final income tax return and any estate tax returns
• Distributing remaining assets to heirs according to the intestacy statute
• Filing a final accounting with the court showing all receipts and disbursements

The administrator is a fiduciary — legally required to act in the estate's best interest, not their own. Mismanagement can result in personal liability. Distributing assets before addressing valid creditor claims can expose a representative or heirs to liability under local law.

What Unmarried Partners Can Do

If you were the deceased's unmarried partner and they died without a will, your legal options are limited but not zero:

Common-law marriage claims. If you live in one of the states that recognizes common-law marriage and can prove you meet the requirements (agreement to be married, cohabitation, holding yourselves out as married), you may be treated as a surviving spouse under the intestacy statute. The burden of proof is on you, and you'll need substantial documentation.

Claims based on contributions. If you contributed to an asset titled only in the deceased's name, title generally controls unless a joint tenancy with right of survivorship or living trust was established. Ask a local probate attorney whether any other remedy applies to your specific facts.

Inheritance Act claims (UK). Under the Inheritance (Provision for Family and Dependants) Act 1975, a cohabiting partner who lived with the deceased for at least two years can apply for reasonable financial provision from the estate, even when there's no will.

Other countries. Relationship-property and intestacy rules for unmarried partners depend on the jurisdiction and the kind of right involved. Do not assume that eligibility for a survivor benefit creates inheritance or property rights.

How to Prevent This for the People You Love

The single most important thing anyone in a non-traditional relationship can do is execute a will. It doesn't need to be complex or expensive. A simple will that names your partner as beneficiary and designates an executor can direct probate assets, subject to statutory rights and non-probate transfers. State final-arrangement wishes in the legally recognized document for your jurisdiction.

For couples who share property, converting title to joint tenancy with right of survivorship ensures the home passes directly to the surviving partner without going through probate at all.

The Disenfranchised Grief Toolkit includes planning documents and administrative trackers for navigating intestate estates — particularly when the surviving partner lacks legal standing and needs to coordinate with the deceased's biological family under difficult circumstances.