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What Happens if There is No Will?


Without a will, the court will be responsible for naming the executor, distribution of assets to heirs and naming a guardian for any minor children.

When an individual dies without a Last Will and Testament (known as “intestate”), many important decisions are left up to the court system. Intestacy laws are applied to make estate settlement decisions, including naming the executor of the estate, determining the distribution of assets to heirs and naming a guardian for minor children (if applicable).

Who Acts as Executor of an Estate Without a Will?

When a person dies intestate, state law dictates possible estate administrators. Each state has its own priority list for potential acting executors. The surviving spouse is usually the first choice, followed by children and other relatives.

Who Acts as the Guardian for Minor Children?

Parents with minor children use their wills to name a guardian in the event both parents die. If there is no will, the court appoints a guardian.

Who Inherits the Assets?

Intestate succession generally determines who receives estate assets. Assets that would have passed outside of a will do not follow intestacy guidelines. Assets not following intestate succession include: proceeds from life insurance policies, IRA and 401(K) plans with a designated beneficiary, assets with transfer-on-death (TOD) or payable-on-death (POD) designations and property in a living trust.

Assets without beneficiary, TOD or POD designations follow state intestacy laws. Spouses, registered domestic partners, children and blood relatives inherit assets through intestate succession. Charities, friends and unmarried partners will not inherit through state intestacy laws.

Generally, the surviving spouse receives the largest part of the deceased’s assets, with children receiving a portion of the estate assets. If there are no surviving children, the spouse typically inherits everything. If there is no surviving spouse or children, parents or siblings of the deceased are generally next in line to inherit. Distant relatives only inherit assets if there is not a surviving spouse or children. If the state can’t locate any relatives of the deceased, the state takes the assets.

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