Estate Planning Lawyer

When someone dies without a will defining how they would like their assets distributed, it is called dying intestate. Unfortunately, for the family of the decedent, an intestate probate process can prove to be long and challenging, depending on the size of the estate. However, the overall process remains similar to probate procedures of someone who has died with a will, although there is likely to be more sleuthing required.

Naming an Executor

One of the most significant elements of the creation of a will is the assignment of an executor. However, for intestate proceedings, it is up to the probate court to determine an executor or representative. Thankfully, most states have a list of eligible people, which is made up relatives, friends, financial professionals, etc., that the judge can choose from. However, no judge will make the decision lightly and may take some time to review the existing relationships.

Inheritance and Succession

The biggest concern for those who survive is who is entitled to the estate. While most states have laws regarding the inheritance and succession of intestate estates, the most likely receivers of the assets are spouses, domestic partners, children and other blood relatives. However, friends, unmarried or unrecognized partners as well as any charities will likely receive nothing. The one that gains the most is a surviving spouse and children, who likely receive the entire estate. If there is no spouse or children, then the parents of the decedent are next in line followed by siblings.

Deceased Heirs

If a rightful heir is dead, then their share of the inheritance is likely split among other survivors, except in specific situations. If the heir was the child of the decedent and had children of their own, then their share of the estate may go to their children. However, the specifics of this type of inheritance is dependent on the survivorship laws of the decedent’s state.


While dying intestate is never ideal for surviving family, it is even more concerning when there are children involved. If both parents die unexpectedly and neither has a will specifying guardianship, then the courts must step in. In these rare instances, a judge will spend considerable time interviewing and reviewing family members, and they will eventually assign guardianship to the best of their understanding of the family relationships and dynamics.

While the probate process is designed to handle the distribution of a decedent’s estate regardless of a will, the process is made much easier when one exists.