Dying Without a Will Creates Confusion and Jeopardizes Your Family

June 19, 2023

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Parents spend their lives caring for their children. They work hard to ensure they have the best opportunities possible. Also, they work to ensure their financial stability and to hopefully leave them with an inheritance that will make their life easier. Dying without a will can jeopardize all that.

Of course, no one thinks it will ever happen. But accidents, unexpected illnesses, and other events can put your family at risk. Should you die without a will, then your estate and your final wishes may not be addressed in the manner you wanted.

Dying Without a Will: The Hard Truth

According to the American Association of Retired Persons (AARP) more than one-half of adults do not have a will. Perhaps this is because none of us like to think about our life ending.

However, a will or other estate planning documents are necessary. They allow us to protect our loved ones and ensure that our wishes are carried out in the manner we want. It is important to understand that a will is a legal document and any person who has assets should consider creating one.

Assets and Estates, Oh My!

Another reason why so many people are dying without a will is that they think they don't need one. That's understandable. You hear words like assets and estates, and you probably think that doesn't apply to the typical American. It sounds like something only for uber-wealthy people.

But that's not the case! Most of us have assets and estates. An asset is something you own, and an estate is a group of assets minus your liabilities. Of course, that means that your assets and estates might look a little different as your net worth increases. But there's a good chance that you have things that you own right now at this moment in your money journey that you want to be passed along in a certain way.

That means you need a will!

What Problems Can Occur For Those Dying Without a Will?

Dying without a will can cause way more problems than anyone should be comfortable with.

The purpose of a will is to make your final wishes known. If you don't have a will, there's a lot of guesswork involved. Even if someone's heirs act in their best interest and no one fights over an inheritance, things can still get ugly.

Dying without a will means time and money tied up in the legal system with no guarantees that anything gets handled according to your plans.

What is the Legal Term for Died Without Writing a Will?

The legal term for dying without a will is intestacy. If someone dies intestate, the court gets involved in sometimes fairly complicated ways.

Your estate gets sent to what is known as probate court, or probate for short. At that time, the person who wishes to be the Administrator for your estate petitions the court. They can be approved or not.

Then, it is up to the Administrator to divide up your estate based on your state's laws. They will have the obligation to categorize and value assets, notify heirs and beneficiaries and identify creditors and debt. Once all of these matters are taken care of, the Administrator will also be responsible for paying debts, distributing the remaining assets and closing the estate.

When someone dies after writing a will, they have the opportunity to not only be specific in terms of how their estate is administered, but they also are able to put an Executor in charge of ensuring their final wishes are carried out.

Dying Without a Will: Estate Executor Versus Administrator

When someone executes a will, they name an Executor of their estate. Typically, the Executor is very aware of their role and is familiar with the will. Though that isn't always the case.

An Executor is generally someone who the deceased viewed as honest, trustworthy, and fair. Family members or friends often play this role. Alternatively, a business partner or an acquaintance may also take on this role. Some people view it as advantageous to not name someone who benefits directly or significantly from the will. No matter who is chosen, the Executor represents a thoughtful choice.

However, when someone dies without a will, that choice is made for them. The probate court has the final say in the administration of an estate.

In these cases, the court will appoint an estate Administrator. The Administrator will take on the same responsibilities as the person who would have been named as Executor had a person created a will before their passing. However, the court gets the final say, based on state laws, about how assets are distributed.

What Happens if Someone Has No Will in My State?

Judge in Court
Photo by: Shopify Partners

There are rules that most states follow, though it is important to look at your state specifically if you have questions.

When someone dies without a will, the estate and decisions about distribution are typically handled by the person’s closest relatives. There are exceptions to what property is handled through probate. This is referred to as non-probate property.

Some of which include:

  • Property that is jointly owned — in these cases, the assets are transferred to the joint owner once the legal requirements are met. This would include real estate, bank accounts and potentially automobiles.
  • Life insurance policies — assuming a life insurance policy has a named beneficiary who has not pre-deceased the policy owner, the beneficiary may make a claim for the assets.
  • Retirement accounts — most retirement accounts have a beneficiary assigned as the person who is entitled to collect the funds in the event of the owner’s death. The beneficiary has the right to claim those assets after the death of the maker.
  • Property in a trust — property which was transferred to a trust during the maker’s lifetime is managed by the successor trustee.
  • Other accounts — there may also be assets that someone has previously set up as transfer on death accounts. These do not go through the probate process, instead, they are treated in much the same manner as jointly owned property.

It is important to remember that having a will in place does not mean a family will avoid the probate process. The will has to be validated by the court and becomes a matter of public record. Developing a trust may help avoid probate altogether.

What is the Order of Next of Kin?

When someone dies without a will then typically, the court will order assets to be distributed in accordance with intestate succession. In general, intestate succession follows the same path regardless of the state.

Most states take next of kin in the following order when probating an estate when someone has died without a will:
1.    Surviving spouse
2.    Biological children and adopted children
3.    Grandchildren
4.    Surviving parent(s)
5.    Siblings of the decedent
6.    Nieces and nephews
7.    Aunts and uncles

It is important to note that in most states, stepchildren have no direct claim upon an estate if there is no will in place. Additionally, in most cases, friends or unmarried partners do not get part of your estate if you die without a will.

If you're starting to feel a sense of urgency about creating a will, that's a good thing! You want to make sure that your estate goes to the people (or causes!) you care about.

Still, getting started is no easy task. That's why it can help to have someone who can support them through the process. Trust & Will is a modern online solution for developing your will, and/or trust and even to guide you through the probate process if needed.

What are the Inheritance Levels or Order of Succession?

We know, we know. This is giving major Royal Family or made-for-TV movie vibes. But when you die without a will an intestate succession takes place. This succession typically follows three levels.

The first level of the order of inheritance

The rules that apply to the first level include:

  • Per Stirpes — when the person who dies is survived by a spouse, children, grandchildren and/or great-grandchildren, the spouse inherits one-half of the estate and the remaining heirs divide the remaining half.
  • Spouse but no children or other immediate heirs — the spouse would inherit the entire estate.
  • Children only no spouse — the children equally divide the estate.

When there is no living spouse and no children, the parents, siblings, descendants of deceased siblings are entitled to equal shares of the estate. If only one parent has survived, the other parent is entitled to double the share. In the event a sibling has predeceased the distribution, then their portion is distributed per stirpes.

Finally, if there are no parents or siblings, then the estate is divided between the decedents' maternal and paternal sides of the family. When there are no survivors, then the estate will be distributed to the surviving members of the family.

The second level of the order of inheritance

This level of inheritance deals with the children of the decedent. The rules which apply are:

  • Legally adopted children receive a share of the decedent’s property
  • Foster children and stepchildren are not automatically included as heirs
  • Children of the decedent who were legally adopted by another family are not automatically entitled to any portion of the estate. The exception would be if the adopted family has a legal document that indicates otherwise.
  • If the decedent was an expectant parent at the time of their death, the child would be entitled to a portion of the decedent’s estate.
  • When a child is born out of wedlock and parentage has been established, the child may be entitled to a share of the property.

There are other complicated rules which may apply to children conceived by artificial insemination and grandchildren whose parents have predeceased the owner of the estate.

The third level of the order of inheritance

As if all of this wasn’t confusing enough, there are also rules which pertain to unusual situations which may occur when identifying heirs. For example, a person’s immigration status does not matter when dealing with estates, and half-siblings are treated as siblings.

Additionally, anyone who has been convicted of harm against a deceased elderly person may not be entitled to inherit. This is oddly specific but it also makes sense. And if prior to their death, the deceased gifted any property to a relative, the value of such a gift may be deducted from the total of the inheritance if the gift value was documented.

It is important to note these rules apply only to intestate succession. If a person creates a will, they are under no obligation to follow any of these guidelines or rules. That means if these levels sound like they'd cause confusion for people in your lives, you really need a will.

Why You Should Worry About Dying Without a Will

Father and Daughter during holidays
Photo by: Shopify Photos

One of the primary reasons we should all avoid dying without a will is to maintain control. We all have our own ideas about how our assets should be handled upon our death. A will should be part of an overall estate plan, regardless of your age.

Remember that while you may not think of yourself as having an asset or an estate, you do! It's not just something that comes with being rich or famous. Assets vary depending on a number of factors but may include cash, stocks, and other investments. They can also include property, cryptocurrency, or intellectual property in the case of artists, writers, and others.

No one should worry about how your assets are divided. However, this is a definite risk for those who are dying without a will.

What happens to my dependents when I die?

There's a good chance you've started to build a solid financial footing for your children. Hopefully, you're finding ways to build their financial literacy. Maybe you are also helping them save with a UTMA. Possibly, you've even opened a 529 college savings plan for them.

No matter how the specific details shake out for your family, you are absolutely taking care of your kids and their financial future.

Dying without a will jeopardizes all of that.

Normally, you use a will to appoint a guardian. This person oversees your child's care. You can also appoint a property manager if you'd prefer that someone separately manage how your child will receive money.

None of that happens if you die without a will, though. The probate court will appoint a guardian. They believe that this person will act in your children's best interest, and we hope that's the case as well. However, putting these plans into place while you are alive is a much more effective way to guarantee their success.

Many people go so far as to complete legacy binders so that there are as few disruptions in their children's lives as possible. After all, the loss of a parent is one of the most profound and difficult things that can occur. Giving them space to grieve without upending everything they know just makes sense.

Final Thoughts on Dying Without a Will

We should all take every step necessary to protect our children. One of the most important steps is ensuring that we have our estate in order. Specifically, we want to prepare our estates in a way that protects them.

Having a properly executed will in place is imperative, regardless of the size of your estate. This type of preparation helps clear up any confusion over your wishes for the distribution of your estate.

Whether you wish for your assets to be distributed to a long-term partner, a favorite nephew, or your favorite charity, you need a will.

If you are concerned about dying without a will, see what Trust & Will can offer. With this platform, you can create, edit, and share your will and other legal documents easily. And if you're dealing with the headaches and heartaches of probate already, Trust & Will can help you navigate that process too. Check out the Trust & Will site for more!

Where do you stand in the estate planning process? How are you preventing yourself from dying without a will?

Please let us know in the comments below.

Doreen Martel

Doreen Martel

Doreen Martel is a freelance writer focused on financial and legal content. She's been providing content online for nearly three decades.


  • Great article. Yes, I wholeheartedly agree… you must have a Will, so that your remaining family members aren’t left with a horrendous mess to sort out.
    I’ve just been through almost 2 years of trying to resolve my Dad’s estate, where there wasn’t a Will. It has affected my health horribly. I had chronic physical health conditions prior to my lovely Dad’s death, and the sheer labour, red tape and frustration of the last couple of years certainly contributed to worsening my health.

    Another important thing to consider is to please declutter your houses, so that once you pass away, family members aren’t left to deal with months and months of labour.

    Leaving too much work for your family members to sort out upon your death, means that they have to postpone their feelings of grief as there’s so much to do. It really isn’t a fair legacy to leave behind.

    • Thank you for sharing with us Bel.

      Two years is a long time deal with anything traumatic … let alone your father’s estate.

      This is a good reminder to us all.

  • 100% agree, everyone needs to have a will and its not that complex to get one sorted out. Its important to have everyone on the same page. Unfortunately I lost my mother to cancer 8 months ago, and its still ending up being a very stressful time with her estate with arguing between the beneficiaries :(

    • I’m so sorry to hear this. I wish you the best in this difficult time.


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