You already have a will. The state wrote it.

Part 1

The state already wrote one

Everyone who owns anything has a will. Most people did not write theirs. Every state keeps a statute on the books setting out exactly who inherits when a person dies without one, and that statute takes effect automatically, in full, the moment it is needed. It is called intestate succession, and it is a will in every practical sense: a fixed list of who gets what, written in advance, applied without argument.

The difference is what it knows. It knows marriage, blood and adoption. It does not know that one child has been supporting a parent for a decade and another has not spoken to them since 2009. It does not know that the person who shared a house for twenty years was never married to the deceased. It does not know that the surviving spouse needs the whole house rather than a fraction of it. It divides by category and it divides the same way every time.

There is no federal law of inheritance. Congress has never written one, and the states have never agreed among themselves, so the answer to a question as basic as whether a widow inherits everything depends entirely on which state the person lived in when they died. The rules below come from real statutes in named states, and they disagree with each other. That disagreement is the point.

This guide is educational information. It is not legal, tax or financial advice.

Part 2

What the state's version actually says

Take one situation and run it through three states. A married person dies without a will, leaving a spouse and two adult children, all of them the children of that marriage. Nothing exotic.

Three states, three answers, and none of them is everything to the spouse. New York states its figure flat in the statute. California uses no dollar figure at all, only fractions, and treats property acquired during the marriage differently from property brought into it. Michigan takes a sum off the top before splitting, and the size of that sum changes depending on whose children the children are.

That last mechanism is the one worth understanding, because it is the modern approach and more states are moving toward it. Michigan sets six separate cases, and they do not all work the same way. Where no descendant and no parent survives, the spouse simply takes the whole estate, with no sum and no fraction involved. In four of the remaining cases the spouse takes the same fixed sum off the top, and what changes is the fraction of the balance: half in most of them, but three quarters where the deceased left no children and a parent survived. The fixed sum itself drops in exactly one case, which is where none of the deceased's children are the surviving spouse's children. The statute is trying to guess how much a stepparent should hand across to stepchildren, and it guesses the same way in every household.

Change the family shape and the answer moves again. A spouse and no children takes the whole estate in New York and in California. Children and no spouse takes the whole estate in both. The disagreement is concentrated in the one case that is most common, which is a spouse and children together.

What happens when a child has already died

New York and California both divide among descendants "by representation", and the mechanic is worth knowing because it decides whether grandchildren inherit and how much. The method itself is not uniform: California uses the rule below, while about a third of states have adopted the newer approach of dividing per capita at each generation, which can produce a different answer once more than one branch of a family has lost someone. California's rule divides the estate into equal shares at the nearest generation that has anyone living in it, counting both the living members and the dead ones who left children of their own. Each living member takes a share, and each dead member's share is divided the same way among their own children.

So a person with three children, one of whom died leaving two children of their own, does not produce a five way split. It produces three shares at the children's level. The two surviving children take one each, and the third share is halved between the two grandchildren. A grandchild whose parent is still alive inherits nothing at this stage, which is the correct result and a regular source of family argument.

Part 3

Who counts as family, and who does not

Intestacy runs on legal relationships, not lived ones. Three groups get caught out by that with some regularity.

An unmarried partner

A partner who was never married to the person who died is not on the list at all, however long they lived together and whatever they contributed. A handful of states recognize a registered domestic partnership or a validly formed common law marriage and treat that partner as a spouse, but registration or formation is the trigger, not the relationship. A common law marriage validly formed in a state that allowed it is generally still recognized after a move to a state that does not, which is worth checking rather than assuming. Where no such status exists, the partner inherits nothing under the statute and can find themselves negotiating with the deceased's relatives over a house they helped pay for.

Stepchildren

A stepchild who was never adopted is usually not a child for this purpose. California's statute is explicit: the parent and child relationship exists between a person and their natural parents, and between an adopted person and their adopting parents. A biological child the deceased had not seen in thirty years falls inside that sentence.

There is a route back in, and it is narrow. California allows a stepchild or foster child to inherit where the relationship began while the child was a minor, continued throughout both their lifetimes, and clear and convincing evidence shows the stepparent would have adopted the child but for a legal barrier. Several states reach a similar result through a doctrine usually called equitable adoption. Both are arguments made to a court after a death, by someone who has to prove them, which is a poor substitute for a will.

Minor children

Children who inherit under a state's default rules inherit as individuals, and a minor cannot hold property outright. That triggers a court supervised arrangement to hold the money until the child reaches the age of majority in that state, at which point it is handed over in a lump with no conditions attached. A will can direct that same money into a trust that pays out gradually. The default cannot.

Three categories that surprise people the other way

The statute is narrow about relationships it does not recognize and notably broad about three it does.

• Children born outside marriage. California's statute states that the parent and child relationship exists between a person and their natural parents regardless of the marital status of those parents. Marriage is not what makes a child an heir.
• Half brothers and sisters. Relatives of the half blood inherit the same share they would take if they were of the whole blood. A half sibling from a parent's second marriage is not a lesser heir.
• Anyone who outlives the deceased by less than five days. An heir who fails to survive by 120 hours is treated as having died first, and the estate is worked out as though they had. In a car accident that kills a couple within hours of each other, each estate passes as if the other had already gone, which usually sends the property to two separate families rather than pooling it in one.

Part 4

What the default does not touch

A state's intestacy statute only reaches what the estate actually holds. Property that transfers by its own mechanism never enters the estate and is never divided by the statute at all.

• Retirement accounts, life insurance and annuities pass to whoever is named on the beneficiary form held by the company.
• Bank and brokerage accounts marked payable on death or transfer on death pass to the named person.
• Property held in joint tenancy with right of survivorship passes to the surviving owner by the way it is titled.
• Anything already retitled into a living trust passes under the terms of that trust.
• Real property covered by a transfer on death deed, where the state allows one, passes to the named person outside the estate.
• Property a married couple holds as tenants by the entirety, in the states that recognize it, passes to the surviving spouse.

For a great many households those routes carry most of the value, which produces the outcome that surprises families most. The intestacy statute divides the leftovers scrupulously while the largest single asset goes, in one move, to whoever was written on a form years ago and never revisited.

The reverse trap is just as common. A person who believes the beneficiary forms have it covered, and therefore that no will is needed, has left the statute in charge of everything the forms do not name: the house if it is titled in one name alone, the car, the contents, a business interest, an account opened before the habit of naming beneficiaries took hold.

Part 5

The people a judge picks instead of you

Deciding who inherits is only part of what a will does. It also names people, and those names are the part that vanishes first.

Who administers the estate

A will nominates an executor. Without one, the court appoints an administrator from a fixed order of priority. California's runs surviving spouse or registered domestic partner, then children, then grandchildren, then other descendants, then parents, then siblings, and on down a list of fifteen categories before reaching the public administrator. Whoever sits highest and is willing gets the job, which may be the person best suited to it or may simply be the person the list reached first.

The bond

In many states an administrator has to post a bond before the court will issue the letters that let them act. It is an insurance policy protecting the estate against the administrator mishandling it, the premium comes out of the estate, and it is priced against the value being handled. Whether it is required by default varies: states running the newer style of unsupervised administration often do not demand one unless somebody asks.

The waiver route is where intestacy costs money. A will can waive the bond, and a great many wills do. There is no will here, so in California the only remaining route is every beneficiary waiving it in writing and attaching those waivers to the petition. Even then the court can require a bond anyway, for good cause, on its own motion or at the request of any interested person.

Who raises the children

A will is the ordinary place a parent nominates a guardian for a minor child. The nomination is not absolute even then. California allows it where the other parent joins in it, or has died, or lacks the capacity to consent, and a court still confirms the appointment. Without any nomination, the court works from what it can find out about the family, guided by the child's best interests and by whoever comes forward to ask.

Part 6

How far the search goes before the state keeps it

When there is no spouse and no descendant, the statute does not stop. It works outward: parents, then the parents' descendants, meaning siblings and their children, then grandparents and their descendants, then further still.

California carries on past blood entirely. If nobody in those categories survives, the estate can pass to the descendants of a predeceased spouse, and after that to the parents of a predeceased spouse and their descendants. A family related to the deceased by nothing but a marriage that already ended in death sits ahead of the state.

That route is narrower than it first sounds, and the limits matter. For real property it reaches back only where the predeceased spouse died no more than fifteen years before, and it applies only to the portion of the estate attributable to that spouse rather than to everything the deceased owned. It is a rule about property that came from a marriage returning toward that marriage, not a general preference for in-laws.

Only when that whole search comes up empty does the property escheat, which means it passes to the state. In a state that searches as far as California does, that is a genuinely uncommon outcome, and the reason is the length of the list rather than any generosity in it. Not every state searches that far. A number of them cut the list off at a nearer degree of kinship, stopping at the descendants of grandparents or at first cousins, which makes escheat correspondingly more likely there.

The practical consequence runs the other way from the fear. The risk is rarely that the state takes everything. The risk is that the estate is held open while a court satisfies itself about who the relatives are and where they live, that people who were barely known to the deceased receive a share because the formula reached them, and that the cost of finding them comes out of the money before anyone is paid.

Part 7

The one afternoon checklist

The first four establish what the default would actually do in your case. The rest change the answer.

• Look up your own state's intestate succession statute by name and read the section covering a surviving spouse. It is short, and it is the document currently in force over your estate.
• Write down the specific split it produces for your household, in figures, not in principle.
• List every asset that already has a named beneficiary or a survivorship title. Those never reach the statute, so subtract them first.
• Check what is left. That remainder is what the default rules actually govern, and it is often the house.
• Check every name that matters to you against the categories the statute uses. An unmarried partner and an unadopted stepchild are the two that most often fall outside it.
• If there are minor children, decide who would raise them and who would manage money for them. These are two separate jobs and can go to two different people.
• Have a will drafted in your own state. The rules that decide whether it is valid are also state rules, and a document that works in one state can fail in another.
• Once it exists, re-check the beneficiary forms against it. A will does not override them.