What Happens if a Loved One Dies Without a Will?
The COVID-19 pandemic reminded many Americans of the importance of having a will or living trust. Despite this increased awareness, most people still haven’t taken action. Nearly 33% of Americans have no estate plan at all, not even a basic will. This means there’s a good chance someone in your family — a parent, spouse, or sibling — may pass away without one.
So, what happens if your loved one dies without a will?
Understanding Intestate Succession
Dying without a will is known as dying intestate. When this happens, state law determines who inherits the property — a process called intestate succession. Probate court oversees this process, which can delay asset distribution and sometimes create family conflict.
The rules vary by state, as inheritance law may follow community property, common law, or other specific statutes. Having your own estate plan ensures that your assets follow your wishes, not just the default state rules. Unfortunately, two-thirds of Americans are leaving these decisions up to the state by not planning ahead.
Steps to Take if There is No Will
If your loved one passes away and you cannot locate a will after searching thoroughly, start by contacting any attorney or financial advisor they may have used. There may be an old will or trust stored with them.
Even a very old will can be probated. Check for:
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Bank safe deposit boxes (note: you may need a court order to gain access)
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Home safes (may require a locksmith)
Next, compile a list of assets, tax returns, and financial statements — especially those from the date of death. These will be important for probate and estate tax purposes.
Assets That Pass Outside of Probate
Many assets transfer automatically to beneficiaries and do not require probate:
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Life insurance proceeds
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401(k), IRA, and other retirement accounts with named beneficiaries
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Jointly owned bank accounts and real estate with rights of survivorship
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Payable on death (POD) bank accounts
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Transfer on death (TOD) accounts for stocks and securities
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Vehicles or real estate with TOD titles or deeds
Claiming these accounts can provide immediate access to funds to help cover expenses while the estate is being settled.
Executors and State Succession Rules
If no will names an executor, state law will decide who serves as the personal representative. Typically, the order of priority is:
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Surviving spouse or domestic partner
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Adult children
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Parents
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Siblings
If you are nominated or chosen to serve, the complexity of the estate will determine how challenging the process will be. Small, simple estates are easier to manage, while estates with significant assets, investments, or business interests can be complicated.
Deciding Whether to Accept the Executor Role
Before you agree to serve as executor, ask yourself:
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Do you live nearby?
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Do you have a good relationship with other heirs?
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Do you have the time to handle legal, financial, and administrative duties?
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Are you prepared to manage potential disputes?
If you are the primary heir, serving as executor can be worthwhile. If not, or if you anticipate major conflict, it may be better to decline and let someone else step in.
Seek Professional Support
A probate attorney can guide you through state intestacy laws and help identify who is entitled to inherit assets — especially property without a named beneficiary. Bringing a complete list of assets and financial records to your attorney will make the process much smoother.
Take Action Today
Planning ahead spares your family stress and conflict later. If you don’t have a will or trust, now is the time to create one.
📞 Call Aging in Maine at (207) 848-5600 or visit our Contact Page to schedule a consultation with an experienced probate attorney.
