Dying Without a Will

Updated August 4, 2026. Quick answer: dying without a will does not mean nobody inherits. It means your state has already written your will for you, in a statute, and it distributes only the property that would have passed under a will in the first place. Two things surprise people: the surviving spouse usually does not take everything, and a large share of a typical estate — retirement accounts, life insurance, joint property, anything with a named beneficiary — never touches the intestacy rules at all.

What the intestacy statute actually governs

It governs the probate estate: what is left after everything that passes by its own terms has already gone. Assets that pass outside it, and are unaffected by whether you had a will:

• Retirement accounts and life insurance with a living named beneficiary — see why a beneficiary designation beats the will.
• Payable-on-death and transfer-on-death accounts — see how POD accounts work.
• Real property under a transfer-on-death deed, in the states that authorise one.
• Property held in joint tenancy with right of survivorship.
• Anything already titled in a funded trust.

This is why “he died without a will” and “the state took everything” are almost never the same sentence. The estate that reaches the statute is often the remainder, not the whole.

The spouse does not automatically take everything

This is the single most common misunderstanding, and the blended-family case is where it costs the most. A worked example from an actual statute — Nebraska, which enacted the Uniform Probate Code, at Neb. Rev. Stat. § 30-2302 (UPC § 2-102). The intestate share of the surviving spouse is:

“(1) if there is no surviving issue or parent of the decedent, the entire intestate estate; (2) if there is no surviving issue but the decedent is survived by a parent or parents, the first one hundred fifty thousand dollars, plus one-half of the balance of the intestate estate; (3) if there are surviving issue all of whom are issue of the surviving spouse also, the first one hundred fifty thousand dollars, plus one-half of the balance of the intestate estate; (4) if there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.”

Read clause (4) again. Where the decedent had a child from an earlier relationship, the surviving spouse takes half — no threshold amount first, and the other half goes to the children. A surviving spouse living in the house can find the house half-owned by a stepchild they may not be on speaking terms with. That is the default, not a punishment, and a will is what displaces it. We cover that case in detail in who inherits in a blended family without a will and what stepchildren do and do not inherit; if the house itself is the question, start at does my spouse get the house.

The figures move. Nebraska’s $150,000 threshold is current as of 2026 — it was set by Laws 2026, LB838, § 15, operative July 18, 2026. Every UPC state sets its own number and amends it on its own schedule, which is exactly why a national round-number answer to “what does the spouse get” is wrong everywhere at once.

Representation is where most summaries go wrong

When a child has already died leaving children of their own, the estate is divided by representation — and what that phrase means is defined by statute, not by intuition. Nebraska again, § 30-2306 (UPC § 2-106):

“If representation is called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.”

The shares are counted at the nearest degree with a survivor in it, and a deceased person only generates a share if they left surviving issue. States differ on this: some use strict per stirpes, some per capita at each generation, some the formulation above. The result for the same family can differ between them. Any article that gives you one national rule for representation is describing one state and not telling you which.

Who inherits when there is no spouse

The order is a ladder, and it is walked strictly — a living person on a higher rung excludes everyone below. Nebraska’s § 30-2303 (UPC § 2-103) runs: the decedent’s issue; then parents; then the issue of the parents (siblings, then nieces and nephews) by representation; then grandparents, with the estate splitting into paternal and maternal halves. That last split is the one people never expect: two branches of a family can inherit unequal amounts per person purely because one branch had more children.

Escheat — property passing to the state — sits at the very bottom of that ladder and is genuinely rare, because the ladder is long. If there is truly no one, see estate planning with no heirs, where naming a beneficiary is the entire point.

Community property changes the question

In a community-property state, the marital half is already the surviving spouse’s before intestacy is consulted at all, so the statute is dividing a different pot than it would in a common-law state. Same family, same assets, different result, and it turns on where you live rather than on anything you did. See community property vs common law inheritance.

What it costs

Intestacy does not, by itself, make probate more expensive — probate cost is set by the state’s fee model, which we publish with the statute cited for all 50 states and DC at probate cost by state. What it does is remove the choices a will would have made: who serves as personal representative, whether a bond is required, and whether the estate qualifies for a shortcut. Many small estates skip formal probate entirely under an affidavit — the thresholds are at small-estate limits by state. The full sequence, with or without a will, is at settling an estate.

What a will changes, and what it does not

A will displaces the intestacy statute for probate property. It does not override a beneficiary designation, a POD account, a survivorship deed or a funded trust — those still pass by their own terms, which is why a will alone is not a plan. What a valid will requires is procedural and varies by state: witness count, notarisation, whether a holographic will is recognised. Those requirements are collected, statute-cited, at will requirements by state, and what one costs is at how much does a will cost. The whole picture — documents, process, taxes — is on the estate planning front door.

Where the estate is straightforward, a form can be enough if your state’s execution rules are followed exactly; where it is not, the case for a lawyer is set out plainly.

How this page is sourced

Every statutory quotation above was read from the Nebraska Legislature’s own text on 2026-08-04 and is reproduced verbatim. Nebraska is used as a worked example of the Uniform Probate Code, not as a statement of national law, and no per-state intestacy share is asserted anywhere on this page — roughly a third of states have not enacted the UPC, and those that have amend their own thresholds. Where we do publish per-state law we cite the statute and record the date it was read; that provenance is downloadable at the datasets page. Method: methodology. Mistakes: corrections.