Settling an Estate in the Absence of a Will

According to caring.com, the percentage of older Americans without a will has remained largely unchanged — even after the COVID-19 pandemic. Interestingly, younger adults (ages 18–34) are now 16% more likely to have a will than adults aged 35–54, with many citing the pandemic as their motivation to begin estate planning.

Still, far too many Americans are at risk of dying intestate — without a valid will — leaving behind logistical, financial, and emotional challenges for their loved ones.

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What Happens When Someone Dies Without a Will?

When you die without a valid will, state intestacy laws determine how your estate is handled.

• The court will appoint someone to act as personal representative (executor) of your estate.
• The state provides a list of people who are eligible to serve, starting with your surviving spouse or registered domestic partner.
• If you have no spouse or partner, adult children are usually next in line, followed by parents, siblings, and other next of kin (grandparents, grandchildren, aunts, uncles, nieces, and nephews).

If no living relatives can be located, your assets may ultimately escheat to the state, meaning the state takes ownership.

Settling Your Estate Without a Will

Even without a will, the probate process generally follows these steps:

1. Petition to open probate – A family member or interested party petitions the court to appoint a personal representative.
2. Appointment of a representative – The judge appoints someone from the priority list to settle the estate.
3. Settlement of debts and taxes – Final bills, taxes, and outstanding obligations are paid from the estate.
4. Distribution of assets – Remaining property is distributed according to the state’s intestacy laws.

This process can be time-consuming, costly, and emotionally stressful — especially when heirs disagree or documentation is missing.

Relationship Rules for Intestate Succession

Each state has its own rules about who qualifies as an heir. A few key considerations:

• Surviving spouse: Must have been legally married at the time of death. If a divorce was pending, a judge will determine spousal rights.
• Common-law marriage: Recognized only in a handful of states and under specific conditions.
• Same-sex marriage: Fully recognized in all 50 states with equal inheritance rights. Domestic partnerships or civil unions depend on state law.
• Adopted children: Legally adopted children inherit just like biological children.
• Stepchildren: Usually do not inherit unless legally adopted.
• Foster children: Do not inherit automatically, as foster parenting is not adoption.
• Children adopted by unrelated families: Adoption severs the legal tie to birth parents for inheritance purposes.
• Posthumous children: Children conceived before death but born after inherit just like those born during life.
• Children born out of wedlock: Always inherit from their birth mother. To inherit from the father, paternity must be legally established.

Many states also have survivorship requirements — an heir must outlive the decedent by a certain number of hours or days (often 120 hours) to inherit. If an heir dies before or shortly after you, their share may pass to their children under the “right of representation.”

What About Minor Children?

If you have minor children, a will allows you to name a personal guardian. Without one:

• A judge must appoint an interim guardian until a full determination is made.
• The process can take time, leaving your children’s care uncertain during a difficult period.

Why Having a Will Matters

A valid will — even a simple one — removes guesswork, reduces family conflict, and ensures that:

• Your assets go where you want them to go
• Someone you trust is in charge of managing your estate
• Guardians for your minor children are chosen by you, not the court

If you have children, own property, or hold significant assets, your will may be part of a larger estate plan that includes trusts, powers of attorney, and healthcare directives.

Take Control of Your Legacy

Don’t leave it to the state to decide who inherits your property or who raises your children.

Call us at (207) 848-5600 or visit our Contact Page to create or update your will and protect your loved ones from unnecessary stress and expense.