Intestate succession

The absence of a will does not leave property unclaimed. Each state has a default order of heirs written into its probate code. The following pages summarize that order; the precise text is in the statutes cited at the foot of this page.

A person who dies without a valid will is said to die intestate. Their property — at least, the part of it that does not pass by joint title or by beneficiary designation, as covered in the previous two pillars — is distributed under the state’s rules of intestate succession.

Intestate succession only governs the probate estate. A house held jointly with the surviving spouse, an IRA naming an adult child as beneficiary, a POD bank account naming a sibling — none of those are touched by intestate-succession rules. The decedent’s having or not having a will does not change those routings.

Across U.S. states the intestate-succession order generally follows the same shape:

1. Surviving spouse and descendants (children, then grandchildren) take the estate, in proportions that depend on the state and on whether the descendants are also descendants of the surviving spouse.
2. If no descendants, the spouse and the decedent’s parents (or sometimes the entire estate to the spouse).
3. If no spouse and no descendants, the decedent’s parents.
4. If no parents, the decedent’s siblings (and their descendants by representation).
5. If no siblings, more remote relatives — grandparents and their descendants, then great-grandparents and theirs, in degrees of consanguinity.
6. If no qualifying relative can be located, the estate escheats to the state.

The differences across states are at the boundary cases — the spouse’s share when there are descendants from a prior relationship, the treatment of half-blood siblings, the shape of per-stirpes distribution. The headline rule (spouse and children first) is consistent.

When a child of the decedent has predeceased but left children of their own — the decedent’s grandchildren — the question is how the predeceased child’s share is divided. There are two common rules, and the choice between them changes the dollar amount of each grandchild’s share:^[6]

• Per stirpes (by branch). The predeceased child’s share is divided among that child’s own descendants. If the decedent had two children, one who survived and one who predeceased leaving three grandchildren, the survivor takes half and the three grandchildren split the other half — a one-sixth share each.
• Per capita at each generation (modern rule). All living descendants at the nearest generation take equal shares, with the shares of any predeceased members at that generation combined and split equally among their descendants. The arithmetic is different in some family shapes; the same is in others.

Most states have written the per-stirpes rule, the modern per-capita rule, or a state-specific variant directly into the statute. For an estate that has more than one branch of descendants and an unequal survival pattern, the difference can be significant.

Three categories cause more confusion than the rest:

• Half-blood siblings. A half-sibling shares only one parent with the decedent. In most states a half-sibling inherits on equal terms with a full-blood sibling. A handful of states still apply a reduced share — typically half — for half-blood inheritance. The state statute is the controlling text.
• Adopted children. An adopted child is treated as a child of the adoptive parents and, in nearly all states, no longer inherits from the biological parents. Adoption out of the family generally severs the inheritance relationship in both directions.
• Stepchildren. A stepchild who was never legally adopted does not inherit from the stepparent under intestate succession. A few states have a narrow exception — sometimes called “equitable adoption” or “virtual adoption” — but it is the exception, not the default.

The nine community-property states (and Alaska, by election) have an additional layer. Community property — earned during the marriage — is already half-owned by the surviving spouse. Only the decedent’s half passes through intestate succession, and in most community-property states it passes entirely to the surviving spouse if all of the decedent’s descendants are also descendants of that spouse.

Where there are children from a prior relationship, the decedent’s half of the community property passes to the children, not to the spouse, in most community-property states. Texas, in particular, sets out this rule in detail in Estates Code § 201.^[2] California reaches a similar result by a different path under Probate Code § 6400.^[1]

Separate property — what each spouse owned before the marriage, or received by gift or inheritance during the marriage — follows the ordinary intestate hierarchy.

The small-estate-affidavit pathway has eligibility rules that usually depend on who the affiant is. In many states, the affidavit can only be filed by:

• The surviving spouse, or
• An heir entitled to a share under intestate succession, or
• A person named as personal representative (executor) in a will, where there is one.

In intestate cases — where there is no will — the second category is the operative one, and identifying who falls into it requires applying the state’s intestate-succession rules. Some states further require the consent of all entitled heirs before the affidavit can be filed. If a state’s rule routes a share to a sibling and a share to a niece, both must consent.

This is where the rules in this page intersect with the rules in the previous two: title and beneficiary designations decide what the probate estate is; intestate succession decides who takes it and, by implication, who is allowed to sign the affidavit.

The default order in five representative states:

These summaries are abbreviated. For any actual estate, the precise statutory text in the state of the decedent’s domicile is the controlling source.

A third procedural detail recurs and trips up affiants: many states also have a survivorship period — typically 120 hours, sometimes five days — that an heir must outlive the decedent in order to inherit. An heir who dies within the survivorship window is treated, for distribution purposes, as if they had predeceased the decedent. The Uniform Probate Code carries this rule, and most states have adopted it in some form.

If after applying the full chain — spouse, descendants, parents, siblings, grandparents and their descendants — no qualifying relative is found, the estate escheats to the state.^[7] In practice this is rare; most estates have identifiable next-of-kin within a generation or two. Where it does happen, the funds typically pass to the state’s general fund or to a specific public-purpose account (such as the school fund in some states), after a statutory waiting period during which unknown heirs may come forward.

Consider an unmarried decedent who died without a will, leaving two adult children. The probate estate, after exclusions for joint-title and beneficiary-designated assets, is $40,000.

Under the intestate-succession rules of every U.S. state, the two children inherit jointly, in equal shares — $20,000 each. They are the entitled heirs and either of them, or both jointly depending on the state’s rule, may file the small-estate affidavit. Many states will require consent or notice to the other child. The form will list both names as the receiving distributees.

If the family situation is less straightforward — children from prior relationships, an adopted child, a missing sibling, contested heirship — the affidavit is probably not the right tool. The next pillar walks through that case.