Trust Law/Level II · Do you need one?/2.1 Wills, probate and the alternatives/Lesson 1
What happens when you die without a plan
Who inherits your assets when you leave no instructions
Education, not legal advice. Trust law changes from country to country and state to state, and the right structure depends on your situation. Anything you sign should be drafted or reviewed by a qualified lawyer where you live.
The lean path
The cheapest, lowest-tax, simplest and most private route the law allows, best first. Each step names the rule it rests on and the condition that keeps it lawful.
- Put a payable-on-death or transfer-on-death beneficiary on every bank, brokerage and retirement account: free bank forms that pass those assets outside intestacy and probate. Catch: name a contingent beneficiary, or the asset falls back into the intestate estate.
- Make a free will instead of accepting the statutory default: California’s statutory will form (Probate Code §6240) or Michigan’s (MCL 700.2519) lets you choose heirs, executor and guardian. Catch: fill blanks only, and sign before two adult witnesses.
- A handwritten will costs nothing where holographic wills are valid: California needs the signature and material provisions in your handwriting (§6111); Texas needs the whole will handwritten (Estates Code §251.052). Catch: roughly half of US states do not accept them.
- If someone already died intestate, use the small-estate route before full administration: California affidavit for personal property up to $208,850 (deaths from 1 April 2025, after 40 days); Texas affidavit up to $75,000 excluding homestead (§205.001). Catch: Texas’s version requires court approval.
- An unmarried partner or stepchild inherits nothing by default; a will, a beneficiary designation or a TOD deed fixes that at little or no cost. Catch: adding them to a title as joint owner instead is a present gift, reportable above $19,000 (2026).
MaterialsA copy of your state’s intestacy statute pageA list of all your current beneficiaries on insurance and retirement accountsThe contact information for a local probate court clerk
Wonder
- What happens to my house if I am unmarried?
- Who manages the money that belongs to my minor child?
- Can my ex-spouse still inherit if we separated but never divorced?
Explore
- When someone dies without a valid will, they die ‘intestate’, and the law decides who inherits in a fixed order. In US states, a surviving spouse usually takes the largest share, often sharing with the children or other descendants. With no spouse or descendants, the estate passes to parents, then to siblings and their descendants, then to grandparents and more distant relatives. If no relative qualifies, the property goes to the state, which is called escheat. The order is set by statute, not by who was closest to the person who died.
- Without a will, no executor has been chosen, so a court appoints an administrator, called a personal representative in Uniform Probate Code states. Priority usually goes to the surviving spouse, then to other heirs. A person with priority can decline, and the role then passes down the list. The administrator collects the assets, pays debts, taxes and expenses, and distributes what remains in the order the state’s law sets. Each US state has its own rules; the Uniform Probate Code (1969) is a model many states have drawn on.
- Unmarried partners and stepchildren usually receive nothing under intestacy rules. A partner who was never legally married to the person who died is normally not an heir, however long they lived together, although some states give registered domestic partners the same rights as spouses. A stepchild usually inherits only if formally adopted; a few states, such as California, let a stepchild inherit in narrow circumstances. These gaps are a frequent source of family conflict, because close relationships do not by themselves create inheritance rights.
- A child can own property but cannot manage it or sign for it until adulthood, which is 18 in most US states. So when a minor inherits under intestacy, a court may need to appoint a guardian or conservator of the child’s property. The court supervises that person, often requiring a bond, regular accounts and approval for spending, until the child comes of age; the child then receives whatever remains outright. Some states allow small amounts to be handled more simply, for example through a custodian under the Uniform Transfers to Minors Act.
- Intestacy is governed by state law, not federal law, so the result differs from state to state; the same family could see a different division in Ohio than in Texas, a community-property state. The Uniform Probate Code was adopted in full by about fifteen states, and many others have borrowed parts of it. One narrow federal exception covers certain Indian trust or restricted land, which passes under an approved tribal probate code or federal rules (25 U.S.C. §2206). In England and Wales, a spouse or civil partner takes personal possessions, a fixed sum and half of the rest, with children sharing the other half.
- Intestacy rules are a default written to fit a typical family. They take no account of who cared for the person who died, who depended on them, or what they said they wanted. The process also runs under court supervision, which takes time and costs money before anyone receives a share. Some property is not affected at all: accounts with a named beneficiary and property held in joint tenancy pass outside the estate whether or not there is a will. Lesson 2.1.2 explains what wills do and what they cannot do.
Key facts
- In the US, intestacy is governed by state law; the Uniform Probate Code (1969) was adopted in full by about fifteen states and in part by others.
- A court-appointed administrator manages an intestate estate, following a priority list that usually favors close relatives.
- Unmarried partners and stepchildren usually receive nothing under intestacy unless married or adopted; a few states make narrow exceptions.
- A minor can own an inheritance but cannot manage it; a court-supervised guardian or conservator often handles it until adulthood.
- England and Wales: under the Administration of Estates Act 1925, a spouse or civil partner takes personal possessions, a fixed sum and half of the rest.
- If no relative qualifies to inherit, the estate passes to the state (escheat).
Exercise nine, six, three, one
9CollectGather 9 people in your life and note each one’s relationship to you, such as spouse or partner, child, stepchild, parent, sibling, grandparent, cousin, in-law or close friend.
6ClusterSort the 9 people into 6 categories: spouse or registered partner, descendants, parents, siblings and their children, more distant relatives, and people with no legal family tie such as unmarried partners, stepchildren, in-laws and friends.
3DistillReduce the 6 categories to 3 groups: those who would inherit first, those who would inherit only if closer relatives were absent, and those who would receive nothing under default intestacy rules.
1CrystallizeWrite 1 sentence naming who close to you would receive nothing under default intestacy rules, and why.
Fact check
Dates, figures and claims checked against the published sources listed below.