When a person dies without a valid will, state law steps in and decides who inherits, and a probate court appoints someone to actually carry the settlement out. That is the short answer to how an estate is settled without a will: intestate succession statutes name the heirs, and a court-supervised administrator gathers the assets, pays the debts and taxes, and distributes whatever is left according to the statutory formula. A straightforward estate can close in six to twelve months. Complicated ones, or ones where the family fights, can take years.
Who the Court Puts in Charge
Because there is no will naming an executor, someone has to petition the local probate or surrogate’s court to be appointed. That person is the administrator, sometimes called the personal representative. State law sets a priority list for who gets the role. A surviving spouse and adult children come first. If they decline or none exist, the right passes to parents, then siblings, then more distant relatives. In some states a creditor can petition if no family member steps forward within a set period after the death.
If two people with equal priority both want the job, the court chooses. Before granting authority, most states require the administrator to post a surety bond, which is a financial guarantee that protects heirs and creditors against mismanagement. The bond amount is tied to the value of the estate, and its premium is paid from estate funds. Courts may waive the requirement if all heirs agree or the estate is small, but the rules vary by jurisdiction.
Once the court is satisfied, it issues Letters of Administration. This document is the administrator’s legal authority to act, and banks, title companies, and government agencies will demand a certified copy before releasing information or assets.
Who Inherits Under Intestacy Law
Every state has a statute that spells out the order of inheritance when there is no will. The details differ, but the framework is broadly consistent. A surviving spouse almost always takes the largest share, and often the entire estate when the deceased left no children or surviving parents. When there are children, the estate is split between the spouse and the children in proportions that vary by state. Under the Uniform Probate Code, adopted in whole or in part by many states, the spouse’s share depends on whether the couple shared all their children, whether the spouse has children from another relationship, and whether the deceased’s parents are still living.
Without a surviving spouse, the estate passes to the deceased’s children in equal shares. Without children, the law moves up to parents, then out to siblings and their descendants, then grandparents, and on through more distant relatives. If no living relative can be located, the assets escheat to the state, though most states hold the property for a time and let late-discovered heirs claim it.
Per Stirpes and Per Capita
When an heir in line has already died, states use one of two methods to handle their share. Per stirpes sends the deceased heir’s portion down to their own children. If one of three adult children of the deceased has already died leaving two grandchildren, those two grandchildren split their parent’s one-third. Per capita gives all surviving members of the same generation equal shares regardless of branch. Your state’s statute controls which method applies.
Adopted, Step, and Foster Children
Legally adopted children have the same inheritance rights as biological children and are treated identically for succession purposes. Stepchildren and foster children who were never formally adopted generally do not inherit. In most states they sit near the bottom of the priority list and take only if no other relatives can be found. Passing anything to them requires a will or another estate planning document.
The Slayer Rule
A person who intentionally and unlawfully kills the deceased cannot inherit from the estate. The slayer rule treats the killer as though they predeceased the victim, removing them from the line of succession. A criminal conviction is not required; the probate court can make its own finding, and a not-guilty verdict in criminal court does not block the probate court from applying the disqualification.
Divorce and Legal Separation
Divorce permanently ends a former spouse’s right to inherit under intestacy law. Legal separation, which is not a divorce, can also cut off or reduce a spouse’s share in many states. A legally separated spouse should not assume they will inherit anything without checking local law.
Community Property States
In the nine community property states, the analysis starts differently. Property acquired during the marriage is generally owned equally by both spouses, so only the deceased spouse’s half of community property enters the intestate estate. The surviving spouse already owns the other half outright. Separate property, such as assets owned before the marriage or received as a gift, follows the standard intestacy hierarchy.
Assets That Never Enter the Estate
Not everything the deceased owned goes through intestacy. Certain assets transfer automatically by contract or by title, bypassing probate entirely.
- Life insurance policies, 401(k) plans, IRAs, and similar retirement accounts pay directly to the named beneficiary on presentation of a death certificate.
- Bank accounts with a payable-on-death designation and brokerage accounts with a transfer-on-death designation go straight to the named recipient.
- Real estate or other assets held in joint tenancy with right of survivorship belong to the surviving co-owner the moment the other owner dies.
- Property placed in a living trust during the deceased’s lifetime passes under the trust’s terms, not intestacy.
Because these transfers happen outside probate, an outdated beneficiary designation can override what intestacy law would otherwise deliver. A retirement account still listing an ex-spouse as beneficiary will pay that ex-spouse even if the couple divorced years ago.
Documents to Gather Before Filing
Having the paperwork ready before the first courthouse trip prevents delays.
- An original or certified copy of the death certificate showing date, location, and cause of death. Order several certified copies; banks, title companies, and agencies each want their own.
- A complete asset inventory covering every item that has no beneficiary designation or surviving joint owner. Include bank and investment balances, real estate with estimated market values, vehicles, and significant personal property. Real estate and unusual items like art or collectibles may require a professional appraisal; vehicles can be valued from a recognized pricing guide; routine household goods generally need no formal appraisal unless they exceed a value set by local court rules.
- Full legal names, current addresses, and dates of birth for every potential heir, so the court can notify interested parties.
- A Petition for Letters of Administration (some courts call it a Petition for Adjudication of Intestacy). Blank forms are available from the local probate or surrogate’s office.
How the Probate Process Runs
Filing and Appointment
The case opens when you file the petition and pay a filing fee. Fees vary by state and sometimes by estate value, ranging from a few hundred dollars to over a thousand. The court reviews the petition, confirms your eligibility under the priority rules, and issues Letters of Administration.
Notifying Creditors
After appointment, the administrator must notify creditors that the estate is open. That usually means publishing a notice in a local newspaper for one or more consecutive weeks and mailing direct written notice to any creditor a reasonable search turns up. Publication starts a statutory deadline, generally between two and six months depending on the state, and creditors who miss it lose the right to collect.
Paying Debts in Statutory Order
Valid claims and outstanding debts come out of estate funds before any heir receives a distribution. State law sets the priority. The general sequence looks like this:
- Administration costs: court fees, attorney fees, and the administrator’s compensation.
- Funeral and burial expenses, often subject to a statutory cap.
- Federal and state tax debts, including unpaid income and estate taxes.
- Medical expenses of the final illness.
- All other debts, including credit cards and personal loans.
If the estate cannot cover every claim within a category, creditors in that group share proportionally. If total debts exceed total assets, the estate is insolvent, heirs receive nothing, and they are not personally liable for the deceased’s unpaid debts. The administrator, however, can be held personally liable for distributing assets to heirs before the creditor period expires if a valid debt then goes unpaid.
Final Accounting and Distribution
Once the creditor window closes and debts and taxes are paid, the administrator prepares a final accounting that details every dollar in and out of the estate. The court reviews it. After approval, the administrator distributes what remains under the state’s intestacy formula, records new deeds for any real estate, and closes and pays out financial accounts. Court approval of the final distribution releases the administrator from further duties.
Timeline
A simple estate with liquid assets and no disputes often closes within six to twelve months. Hard-to-value assets, real estate that must be sold, or disagreements among heirs stretch things out. If a federal estate tax return is required, the estate may stay open until the IRS accepts the return, which can push the timeline to two years or more from the date of death.
Taxes the Administrator Has to Handle
Dying without a will does not change what taxes are owed. The administrator is responsible for meeting every deadline and paying any tax due from estate funds.
Final Individual Income Tax Return
The administrator files a final Form 1040 for the deceased, covering January 1 of the year of death through the date of death. It is prepared the same way it would have been if the person were alive. Any prior years the deceased failed to file also have to be filed. Balances owed come from the estate; refunds go into the estate account.1Internal Revenue Service. File the Final Income Tax Returns of a Deceased Person
Estate Income Tax
An estate is its own taxpayer. If it earns $600 or more in gross income during administration from interest, rent, dividends, or the sale of assets, the administrator must file Form 1041. Income that passes through to heirs is reported on their individual returns via Schedule K-1, which the administrator prepares and issues.2IRS.gov. Instructions for Form 1041 and Schedules A, B, G, J, and K-1
Federal Estate Tax
For 2026, federal estate tax applies only to estates worth more than $15,000,000 per individual. Estates below the threshold owe no federal estate tax and generally do not need to file a federal estate tax return, unless the surviving spouse plans to claim the unused portion of the exemption through portability. Estates above the exemption are taxed at rates up to 40 percent on the amount over the threshold.3Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026, Including Amendments From the One, Big, Beautiful Bill Some states impose their own estate or inheritance taxes with much lower exemption thresholds, so check the law in the deceased’s home state.
Shortcuts for Small Estates
Every state offers some form of shortcut for estates below a certain value. The two most common options are a small estate affidavit and summary administration.
A small estate affidavit is a sworn statement filed by the heir, usually after a short waiting period of 30 to 60 days after the death. It declares that the estate’s total probate value falls below the state’s limit and that the person signing is legally entitled to the assets. The heir presents the affidavit directly to whoever holds the property, and that institution releases the assets without a court order. Dollar limits range from roughly $10,000 to $275,000, with most states falling between $50,000 and $100,000.
Summary administration sits between the affidavit process and full probate. It involves a court filing and a judge’s order but skips many steps required in formal administration, such as appointing an administrator with ongoing duties or running a full creditor notice period. Qualifying values and procedures vary by state. The local probate court’s website or clerk’s office can tell you which option is available and what the cutoff is.
When a Minor Child Is an Heir
A minor cannot directly receive or manage an inheritance. When intestacy law sends a share to someone under the age of majority (18 in most states), the court typically requires the funds be placed in a custodial account or a court-supervised guardianship until the child is old enough to manage the money. A parent, legal guardian, or court-appointed custodian oversees the account. On reaching the age of majority, the child gains full control of the funds, which is one reason some families prefer trusts that release assets gradually.
Administrator Duties, Liability, and Pay
An administrator is a fiduciary. That means acting in the best interests of the estate and its heirs, not their own. Core duties include safeguarding assets, investing them prudently, keeping accurate records, paying debts on time, and distributing property as the law directs. Mixing personal funds with estate funds, borrowing from the estate, or making risky investments with estate money can each constitute a breach of fiduciary duty.
A probate court that finds a breach can reverse the administrator’s actions, order them to personally compensate the estate, or remove them from the role. The most common source of personal liability is distributing assets to heirs before the creditor period expires. If a valid claim surfaces after the money is gone, the administrator, not the heirs, can end up on the hook. Stealing from the estate can bring both civil liability and criminal prosecution. The surety bond acts as an insurance policy for heirs and creditors: the bonding company pays the claim, then seeks reimbursement from the administrator.
Administrators are entitled to be paid. Some states set fees as a percentage of the estate on a sliding scale, commonly around 2 to 5 percent for moderate estates. Others leave the amount to the court based on the time, effort, and complexity involved. The compensation is taxable income to the administrator.