Whenever someone dies, someone else inherits the deceased’s property in nearly all cases. Exactly who gets what is clarified if the person had a will. That document lets them make their wishes known. It also ensures their requests are legal and uncontested. As well as outlines what will happen with their property. But not everyone has a will. By not having a will, the spouse left behind is dealt a situation more complex. If you are wondering what you should do if your spouse dies without a will. Here’s what you need to know.

A Look at Non-Probate Assets

First and foremost, it’s important to understand that not all property is inherited based on a will. If an asset is jointly-held. Or has a listed beneficiary.  Or is in a trust, inheritances aren’t will-dependent. For example, a bank, retirement, or investment account that is in both spouses’ names automatically becomes the property of the surviving spouse. The same would be true for life insurance policies or trusts that list the surviving spouse as the beneficiary.

Individually-owned bank and investment accounts can also have beneficiaries. Usually, a “pay on death” or “transfer on death” arrangement has to be in place. This names the surviving spouse for this to come into play.

With non-probate assets, the lack of a will is irrelevant. However, the inheritance is dictated by who is chosen as a beneficiary or the fact that it was jointly owned.  No additional paperwork is required.

Intestacy Laws for Inheritance Decisions

If a person dies without a will. Intestacy laws go into effect. Aside from the non-probate assets above, all other property gets caught by this legal safety net.

Intestate succession laws outline a hierarchy regarding who typically has rights to various assets. Usually, the closer a person’s relationship to the deceased, the stronger their assumed claim.

It’s important to note that intestacy laws vary by state. However, in most cases, surviving spouses have access to at least a portion of the estate, if not all of it. If the deceased had descendants, such as children, the spouse might have to split the estate with them. However, if there are no descendants. A spouse usually inherits everything, even if there are other relatives.

Estate Management When Spouse Dies Without a Will

When a will is present, the person who created it (the testator) typically identifies an individual as an executor of the estate. That person then handles various legal aspects of adhering to the deceased’s wishes.

With intestate succession, no one has been named by the deceased. In many cases, a probate court will select a person to serve as the estate administrator. Typically, this is a surviving spouse whenever one is available.

Precisely how all of the events will unfold depends on state law. However, every state has processes for intestate succession. They include rules that dictate court involvement and other formal procedures for the divvying of the deceased’s assets.

Additionally, the statutes determine precisely who inherits what. Typically, they are aligned with how the average person would choose to divide their estate. Even if it isn’t likely that the deceased would want that split. That’s irrelevant without a will. Exceptions to the norms aren’t made in nearly all cases. And need or special circumstances aren’t considered. Essentially, the law determines how the estate is managed. There is no consideration of any outside opinions, thoughts, or influences, even points levied by family members.

How to Avoid Intestacy

If you and your spouse want to keep control of the estate, having a legal will or formal inheritance plan is a must. It ensures that the person’s wishes for their assets are known. Without legal documentation, intestacy laws can apply.


Do you have any tips that can help someone if their spouse dies without a will? Can you share an approach for discussing this sensitive subject with a partner before the worst happens? Share your thoughts in the comments below.


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