What Happens If You Die Without a Will?

A will, also called a last will and testament, is a legal document that details what you want to happen to your assets (your money, investments, possessions, property, and any businesses you own) after you die. If you have children, pets, or other dependents, a will is also where you can declare who should be their guardians in the event of your death.

If you don't have a testament/final will, you're not alone. According to a 2024 survey, just 24%-32% of American adults have one. If you die without a final will and testament, you're effectively placing decisions about your assets and the care of your dependent loved ones into other people's hands—people who did not even know you.

If you're one of the approximately 68% or more of Americans who do not have a will, here's what you need to know about what happens when you pass away without having written this important legal document.

What Happens If You Die Without a Will?

Many people avoid making a will, or don't think it's necessary unless they have a lot of money or assets. But there are problems that can arise if anyone dies without a will, regardless of their wealth.

If you have minor children and don't leave a will indicating a preferred guardian, the probate court will decide for you. While they’ll gather information to make the best decision they can, they don’t know your children or family members as well as you do, and their decision may not be the one you would have made.

And whether you have many assets or only a few, dying without a will can mean your loved ones don't receive what you'd have liked them to receive. This may occur if the person is not a next of kin, or not family at all. For example, if you'd like your best friend to inherit your wardrobe or your furniture, if you don't write that down in a will, your friend may not be able to receive these items.

Depending on the laws in your state, not having a will can even make it difficult for your spouse to receive all of your assets. How difficult it is depends on whether you live in a community property state or a separate property state. In a community property state, the entire estate automatically goes to the remaining spouse. In a separate property state, it will depend on the individual state laws, but the entire estate does not automatically go to the surviving spouse.

Even if your spouse is legally entitled to your assets, in many cases, any assets that are not owned by both you and your spouse can be frozen while the estate goes through probate due to a lack of a will. This can cause unnecessary stress and hardship during an already challenging time.

Let's look at some of the terms used to process assets after a person's death.

What Is Intestacy?

Intestacy is the legal term for when someone dies without a final will or testament. So, if you die without a will, it will be said that you died "intestate."

What Are Beneficiaries?

The people you've chosen to inherit your assets are called your beneficiaries. Sometimes a beneficiary might be an organization, like a nonprofit organization or other cause or group.

What Is an Executor or Administrator?

In a final will, the executor or administrator is the person chosen to oversee final wishes and take care of the disbursal of money (to creditors and inheritors). If you die without a will, the probate court will appoint one, usually the remaining spouse or registered domestic partner, then adult children, though it can vary in each state.

What Is Probate?

Probate is the legal procedure an estate often goes through after a death, whether or not the person left behind a will. The probate court verifies the will and beneficiaries, appoints an executor, and gives them the legal ability to pay off any remaining debts and make sure the right people receive the assets. The court can decide who your assets will go to and who will care for your dependents. Probate can also settle disputes, sometimes through mediation.

Probate court can be expensive because of court fees, lawyer fees, and associated costs. The process can go much more smoothly and economically if you've left behind a detailed will.

If you're prepared in advance, you've left behind an uncontested will (a will everyone accepts as valid), and/or if your estate is small or doesn’t include real estate, it may not need to go through probate. However, it's up to each individual state.

Probate vs. Non-Probate Assets

Probate assets are any that must move through probate court, whereas non-probate assets don't need to go through probate court.

Probate assets are any items, belongings, or property that belong only to the person who passed away. Because they're not jointly owned, if there's no final will listing a beneficiary, these assets have to go through probate. Some examples include:

• Personal items
• Bank accounts
• Real estate and cars titled only in the deceased's name
• Corporate or business partnership interest

Non-probate assets include:

• Transfer of property with a deed, such as when both spouses own the property together
• Transfer of property with a beneficiary, including:
  • Life insurance policies
  • Bank accounts
  • Retirement accounts
  • IRAs
  • Assets in a living trust (A legal document placing ownership and control of property into a trust, managed by a trustee.)
• Payable on death (POD) or transferable on death (TOD) assets often used for vehicles or homes Plan Ahead and Draft a Will

Making a will is a wise decision. By creating your own will, you'll be able to make sure that your assets will go where you want them to, and that your children, beloved animal companions, and other dependents will be safely moved to the loving home of your choice. Creating a last will and testament can bring both you and your family peace of mind.

The Neptune Society is the nation's oldest and largest provider of affordable cremation services. Whether you have an immediate need or want to plan cremation services in advance, we are always available to assist you and your family. Call 1-800-NEPTUNE (800-637-8863) today or contact us online to learn more.