Intestate Probate Process: Rules, Examples and Steps

When a loved one passes away without a will, their estate doesn’t simply transfer to the people they cared about most. Instead, it enters a court-supervised process called intestate probate, where state law decides who inherits what. This default system can produce surprising and sometimes unwelcome outcomes. It can leave long-term partners with nothing, divide assets among distant relatives or send property to the state if it cannot find any heirs.

A financial advisor can help structure your estate to keep more of your assets out of probate and reduce the tax burden on your heirs.

What Intestate Means and When Intestacy Laws Apply

When someone passes away without a valid will, the legal system steps in to determine how to distribute their property. This situation, known as intestacy, follows a strict set of state-specific rules rather than the personal wishes of the deceased. Knowing how and when these laws apply can help you grasp why estate planning matters so much for protecting your loved ones.

The term “intestate” refers to a person who dies without leaving a legally valid will. When this happens, the deceased is said to have died “intestate,” and their estate becomes subject to intestate succession laws. These laws act as a default estate plan written by the state. They dictate who inherits the decedent’s assets and in what proportions, regardless of what the person may have verbally expressed during their lifetime.

Intestacy laws apply in several scenarios beyond simply not having a will. They take effect when someone dies without any estate planning documents, when a probate court deems a will invalid due to improper execution or fraud or when a will fails to address certain assets. Other situations that can trigger intestacy rules include:

A will that was revoked but never replaced
A beneficiary who predeceases the person who made the will and no alternate was named
Assets acquired after the will was written that were never added to the estate plan
A will contested successfully by an heir or creditor

Partial intestacy can also occur. This happens when a valid will exists but doesn’t cover the entire estate. In this case, state rules determine the distribution of what remains.

Not all property passes through the intestate probate process, which is an important distinction to understand. Assets with designated beneficiaries, such as life insurance policies, retirement accounts and payable-on-death bank accounts, transfer directly to the named individuals outside of probate.

Who Inherits Property Under Intestate Succession

Compared to probate with a will, intestate probate can lead to outcomes that don't reflect what the deceased would have wanted.

When a person dies without a valid will, state intestacy laws create a hierarchy of heirs based on family relationships. This order of inheritance, known as intestate succession, follows a predictable pattern that prioritizes the closest relatives first. While specifics vary by state, the general framework helps determine who receives what portion of the estate.

A surviving spouse typically stands first in line under intestate succession laws. That said, the share they receive depends on whether the deceased had children or other living relatives. In many states, a spouse inherits the entire estate when there are no surviving children or parents. However, when children from the marriage or a previous relationship are involved, the spouse usually shares the estate with them. Often, they will receive anywhere from one-third to one-half of the assets.

Biological and legally adopted children are next in the line of succession. They generally inherit equal shares of whatever portion isn’t allocated to the surviving spouse. If a child has died before the parent but left behind their own children, those grandchildren typically inherit their deceased parent’s share through a legal concept called “per stirpes” distribution.

If the intestate succession process can identify no living relatives, the deceased’s property “escheats” to the state. This means the government takes ownership of the assets, which is an outcome most people would prefer to avoid.

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How Distribution Works: Common Family Situations

Family Situation	Who Inherits
Married, no children, no living parents	Surviving spouse inherits everything
Married with children	Spouse and children share the estate, typically one-third to one-half to spouse and the remainder split equally among children
Unmarried with children	Children inherit everything in equal shares
Unmarried, no children, parents living	Parents inherit everything
Unmarried, no children, no living parents	Siblings inherit, then more distant relatives
No living relatives	Estate escheats to the state

How the Intestate Probate Process Works

The intestate probate process follows a consistent series of steps across most jurisdictions, designed to protect both heirs and creditors. Here’s a general breakdown of five steps:

Step 1: File a petition with the probate court. A close family member or other interested party opens the process by filing a petition with the probate court in the county where the deceased resided. The petition establishes that the person died without a will and asks the court to appoint an administrator to manage the estate. The death certificate and applicable filing fees must be submitted along with the petition before the court will formally open the case.
Step 2: Appoint an administrator. Without a will naming an executor, the court must appoint an administrator to oversee the estate. State law generally establishes a priority order for who can serve, starting with the surviving spouse and followed by adult children, parents and other close relatives. The appointed administrator receives letters of administration, which give them legal authority to act on behalf of the estate.
Step 3: Locate, inventory and appraise assets. Once appointed, the administrator must locate, inventory and appraise all assets belonging to the deceased. This includes real estate, bank accounts, investment portfolios, vehicles, personal property and any business interests the decedent owned. It may be necessary to consult professional appraisers for items like real estate, jewelry or collectibles to establish accurate fair market values. This is important for both tax purposes and equitable distribution.
Step 4: Notify creditors and settle debts. The administrator must notify known creditors of the death and allow them to file claims against the estate. Valid debts, including outstanding loans, medical bills and taxes, must be paid before any assets are distributed to heirs.
Step 5: Distribute remaining assets to heirs. After debts and expenses are settled, the administrator distributes what remains according to the state’s intestate succession laws. The court supervises this process to ensure compliance with the distribution hierarchy and resolve any disputes among heirs.

Intestate Probate Example

To show how the process works, let’s walk through the example of a married person who dies intestate in a common law state. They leave a spouse, two adult children and an estate worth $500,000 ($300,000 home, $150,000 in a brokerage account and $50,000 in savings).

How the estate divides will depend on which state the deceased lived in. In many common law states, the spouse receives one-third (approximately $167,000), while the two children split the remaining two-thirds (roughly $167,000 each). Other states use different formulas entirely.

The home creates a separate problem regardless of how the numbers fall. Under intestate succession, the spouse and children become tenants in common, each holding a legal percentage of the title. The spouse has no automatic right to remain in the house without the agreement of the children. If the parties cannot reach an agreement, any owner can file a partition action in court. Because a home cannot be divided the way a bank account can, courts typically order a sale, with proceeds distributed according to each party’s statutory share.

A court-appointed administrator oversees the entire process without any guidance from the deceased about their preferences. Legal fees, court costs and appraisal expenses come out of the estate before a single dollar reaches the heirs, and the process can take anywhere from several months to well over a year depending on whether disputes arise among family members.

The same scenario plays out differently in one of the nine community property states. Under community property rules, marital assets are split evenly between spouses by law, so the surviving spouse already owns half of everything accumulated during the marriage before any inheritance question arises.

What passes through intestate distribution is only the deceased’s half of those shared assets, plus anything they owned individually. The pool subject to state succession rules is smaller to begin with.

In some community property states, the spouse inherits the deceased’s portion outright with nothing going to the children. In others, the estate is divided between the spouse and children, but the spouse’s overall financial position is generally stronger than it would be under common law distribution rules.

Intestate Probate vs. Probate With a Will

Probate can differ significantly depending on whether a valid will exists. While both intestate and testate (probate without a will) processes share common steps like inventorying assets and paying debts, a will gives the deceased meaningful control over how their estate is handled.

The most significant difference between the two processes lies in who decides where assets go. With a valid will, the deceased’s wishes guide distribution. This allows them to leave specific items to particular people, support charitable causes or provide for non-family members, like close friends or unmarried partners. In intestate probate, state law dictates distribution through a rigid formula, which may not reflect what the deceased would have wanted.

The executor named in a will is someone the deceased chose and trusted to carry out their wishes. In intestate probate, the court selects an administrator from a statutory priority list without any input from the deceased. That distinction matters when family dynamics are complicated or the deceased had specific preferences about who should manage their finances.

Another difference is that intestate probate often takes longer. This is because it entails additional steps to identify heirs and verify family relationships. The administrator may need to track down distant relatives, obtain birth and marriage certificates and navigate disputes among potential heirs. A clearly written will, on the other hand, streamlines the process by providing specific instructions, reducing ambiguity and minimizing court involvement in distribution decisions.

Both types of probate involve court fees, attorney costs and administrative expenses. However, intestate probate typically costs more due to its added complexity. Locating heirs, resolving disputes and conducting additional court hearings all increase legal fees that come directly out of the estate. These higher costs mean less money ultimately reaches the heirs.

Bottom Line

Without a will, the probate process can result in longer timelines, higher costs and increased potential for family disputes.

Dying intestate sets in motion a court-supervised process governed by state law rather than personal wishes. This can lead to outcomes that don’t reflect what the deceased would have wanted. On the one hand, intestate succession provides a structured way to distribute assets to surviving family members without a will in place. However, it also often results in longer timelines, higher costs and increased potential for family disputes compared to probate with a will.

Tips for Estate Planning

A financial advisor can help you manage your estate and structure the transfer of your assets in tax-efficient ways that can bypass probate entirely. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
Estate planning tools and templates make it easier than ever to draft documents on your own. But DIY estate planning carries real risks that are worth knowing before you start.