Despite growing awareness of the importance of estate planning, a significant number of Americans still haven’t taken this critical step. According to a 2024 Caring.com survey, only 32% of Americans have a will or other estate planning document in place—continuing a trend seen in earlier studies (Caring.com, 2024). When someone dies without a will, they are said to die “intestate.” In such cases, state law determines how assets are distributed, which can lead to unintended outcomes and unnecessary stress for surviving loved ones. Creating a will ensures your wishes are clearly documented and legally enforceable.
The question becomes, what happens to a person’s assets when there is no Will? In effect, unless the person was able to somehow designate how those assets would pass after death, without executing a Will, that person has left it up to the government to direct how a large part of the legacy passes.
Each of the state’s settles this issue by having an intestacy statute as part of its statutory code. In enacting the statute, the legislature and governor attempted to, as best they could, step into the shoes of the person who died without a Will; and disperse the person’s estate as he or she would have probably wanted.
Most states first look to the surviving spouse. If there is one, with the decedent having no surviving descendants of parents, the surviving spouse often gets the entire intestate share. If the decedent had a surviving spouse and children with the surviving spouse only, the surviving spouse would receive a portion of the intestate estate; the children would receive the rest. The statutes go through various family permutations, moving further outward from the decedent to any descendants, parents, siblings and their descendants, grandparents, and finally to uncles, aunts and their children and grandchildren. If the decedent had no family that is specified in the statute, the state may end up receiving the entire intestate share.
In addition, there is often more complexity and cost during the estate administration process if the estate passes according to the intestacy statute. In order to best streamline administration and to make sure that intentions of the decedent are recognized and carried out, it is best to avoid any intestacy and to have a valid Will in place.
