The Legal Consequences of Not Having a Will

Creating a will is one of the most effective ways to protect your loved ones, express your final wishes, and avoid unnecessary conflict after your death. Yet millions of Americans pass away each year without a legally valid will—a situation known as dying intestate.

When this happens, state laws, not you, decide what happens to your property, who gets your assets, who raises your children, and how your legacy is handled. Below, we break down what occurs when someone dies without a will and why planning ahead is a crucial act of care for those you leave behind.

What Does It Mean to Die Intestate?

When a person dies intestate, it means they did not have a valid will at the time of death. In this case, the probate court must follow that state’s intestacy laws—a rigid set of rules that determine who inherits your property.

These laws vary by state, but generally follow this order of inheritance:

1. Surviving spouse
2. Biological and legally adopted children
3. Parents
4. Siblings
5. Extended family (e.g., nieces, nephews, cousins)

If no living relatives can be located, your estate may escheat to the state, meaning the government keeps your assets.

Key Legal and Administrative Consequences

1. Court-Appointed Administrator

Without a will, a probate judge will appoint an administrator (also called a personal representative) to manage your estate. This person:

• May not be someone you would choose
• Might charge higher fees than a named executor
• May lack knowledge of your personal wishes or relationships

You lose the power to appoint a trusted individual to carry out your final decisions.

2. Mandatory Asset Distribution

State laws determine who gets what—regardless of your intentions or the complexity of your family relationships.

• Unmarried partners, close friends, or stepchildren typically receive nothing
• A spouse may receive only a portion of your estate if you have children from a prior relationship
• Sentimental or family-heirloom items may be sold or distributed without regard for emotional value

Want to avoid miscommunication and ensure assets are passed as intended? Learn more in The Role of a Trustee in an Estate Plan.

3. Longer and Costlier Probate Process

Probate without a will is often more time-consuming and expensive, for several reasons:

• The court must verify your heirs and review claims
• Disputes between relatives are more common
• Attorneys and administrators may be paid from the estate, reducing the final inheritance

Delays can last months—or even years—especially if assets are complex or multiple heirs file claims.

Emotional and Personal Impact on Loved Ones

1. Guardianship Decisions for Minor Children

Without a will naming a legal guardian, the court will decide who will care for your children. This decision may:

• Conflict with your values or family dynamics
• Trigger custody battles among relatives
• Cause unnecessary distress for children during an already traumatic time

Naming a guardian in your will ensures your children are raised by someone who aligns with your parenting philosophy and lifestyle.

2. Family Disputes and Litigation

In the absence of clear instructions, disputes among siblings, step-relatives, or extended family can lead to:

• Costly lawsuits
• Damaged relationships
• Deep emotional strain

Even in otherwise close families, grief combined with financial uncertainty can lead to conflict.

3. Non-Relatives Are Left Out

If you wish to leave money or property to a:

• Longtime partner (unmarried)
• Stepchild
• Godchild
• Close friend
• Charitable organization

…they will not receive anything unless named in a valid will or trust. State laws do not recognize personal relationships outside of blood or marriage for inheritance purposes.

See how to include these important people in your plan using trusts and proper estate documents.

Financial and Tax Consequences

Dying without a will can leave your estate exposed to higher taxes and prevent your loved ones from accessing essential resources.

1. Avoidable Taxes and Penalties

Without proper planning:

• Your estate may be subject to state inheritance or estate taxes that could have been reduced or avoided with a trust
• You miss the opportunity to use tax-saving strategies, like gifting or charitable giving

Learn more in The Benefits of an Irrevocable Trust.

2. Higher Legal and Administrative Costs

When the probate process is more complex, your estate may lose value due to:

• Administrator fees
• Probate court filing costs
• Legal representation for family disputes
• Valuation of assets without documentation

3. Delayed Access to Funds

Your heirs may wait months—or even years—to receive what they’re legally entitled to. During this time:

• Funeral expenses may go unpaid
• Family members may struggle to access housing, savings, or vehicles
• Business assets may deteriorate or be mismanaged

Special Circumstances Requiring Extra Caution

Certain life scenarios make dying without a will particularly risky:

Blended Families

• Intestacy laws can exclude stepchildren or unintentionally favor one side of the family. Without a will, your biological children or former spouse could inherit assets meant for others.

Business Owners

• If you own a business and die intestate:
• Your ownership interest could pass to family members who don’t want—or can’t manage—the business
• This could lead to closure, lost jobs, or forced sales
• Business succession should be addressed in both a will and a comprehensive estate plan.

Digital Assets

• From online bank accounts to cryptocurrency, your digital assets may remain locked or lost forever without access instructions and authorization.
• Explore the legal landscape in The Legalities of Digital Assets in Estate Planning.

How to Avoid Intestacy: 5 Key Steps

• Draft a Legally Valid Will
• Work with an estate planning attorney to ensure your will complies with state law and clearly expresses your wishes.

• Update Your Plan After Major Life Events
• Revise your will after marriage, divorce, childbirth, relocation, or a major financial shift.

• Name Trusted Executors and Guardians
• Choose individuals who are responsible and aligned with your values.

• Add Complementary Legal Tools
• Use trusts, powers of attorney, and advance healthcare directives to fully protect your assets and preferences.

• Get Professional Help
• Learn why do-it-yourself templates often fall short in Why an Attorney-Drafted Will Is Better Than an Online Template.

Useful Resources

• American Bar Association – Why You Need a Will
• IRS – Estate and Gift Taxes
• National Institute on Aging – Preparing for End of Life

Final Thoughts

Dying without a will doesn’t just affect your finances—it can derail your legacy, create emotional turmoil for your family, and leave critical decisions in the hands of strangers. But by creating a will—and updating it as your life evolves—you give your loved ones clarity, protection, and peace of mind.

Don’t leave your legacy to chance. Take control with a plan that reflects your values, relationships, and wishes.