What Happens If You Die Without a Will?

By Anna Davies · June 13, 2023 · 7 minute read

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What Happens If You Die Without a Will?

Did you know that if you die without a will, the court gets to decide how your possessions and your money are distributed? That means that any plans you had about giving items or cash to friends, charities, or other recipients won’t likely be followed. What’s more, your survivors may have a tricky road ahead as they navigate the management of your estate.

Unfortunately, the situation of dying without a will is something that can happen more often than you might think. Many people plan to write a will but just never quite get around to it. Even though the process doesn’t have to be pricey or time-consuming, there are plenty of people who avoid the task or other estate planning duties.

Here, you’ll find out what happens if you haven’t made a will. You’ll also learn how writing a will can save your loved ones stress, time, and, yes, money.

Who Handles Your Estate if You Die Without a Will?

When there is no will to name an executor, state law dictates who will be in charge of handling your estate.

A will is where you designate an executor or personal representative. This is the person who takes responsibility for your estate after you die. They make sure final bills and taxes are paid and your assets are distributed properly.

This is often based on a priority list. For example, most states will make the surviving spouse, if there is one, the executor. Adult children are typically considered next, followed by other family members.

Until the courts decide who will distribute your assets, they will be frozen. That means no one can touch your stuff, even if you had told them they could have it.

If nobody is willing or able to handle your estate, the courts will name a public trustee to represent you. This would mean that a stranger would be in charge of distributing your assets according to the laws in your state.

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Who Gets Your Money If You Die Without a Will?

If you were to die without a will (legally called “intestate”), the state would decide how to divide your assets.

This process is called probate. Depending on your financial situation when you die, this can be a complex process that can hold your assets in place and be potentially time-consuming and expensive for your survivors.

How an estate will be distributed will depend on state law. Typically, however, the bulk of the estate will go to a spouse. If you have children, they will also likely get a share or, if there are no children, your parents. Next, the state will typically look for siblings, nieces, nephews, aunts, uncles, and cousins. Some relatives might have to claim unclaimed money from the deceased (aka, you).

The probate process can mean that your belongings are inherited by those you didn’t necessarily intend. For example, if you are single and you die, your parents may get all of your possessions. This may not have been your wishes if you have a partner, or if you and your parents don’t get along.

If you are in a relationship but have no marriage certificate, your significant other may not be able to inherit any of your assets.

You also don’t have an opportunity to give anything to charity, your alma mater, or create a legacy.

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What if I Die With Credit Card Debt or Loans?

Your estate typically has to pay any creditors before anything is passed down to those named in your will or determined by the court. If you have a mortgage or credit card debt alongside other assets, the process can take time and can lead to confusion and frustration for your loved ones.

If you die, federal student loan debt will be discharged, but private loan debt is dependent on your policy. If someone cosigned the loan, they may be responsible for future payments.

If you have credit card debts and not enough assets to cover them, your survivors are not responsible for payment, according to the Consumer Federal Protection Bureau (CFPB).

But despite your loved ones not being legally obligated to pay the debts, it may also lead to creditors contacting your family.

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Who Gets My Children if I Die Without a Will?

Guardianship, or who takes care of children who are minors in the event of your death, can be the most pressing concern for many parents.

If you die without a will, the state will appoint a guardian for your children. The state will choose guardians that they believe are in the best interest of the children, but these guardians may not be the same people you would have chosen.

Having the state assign guardians can also be stressful for your loved ones during what would already likely be a tough time.

A will can establish both a personal and financial guardian for your children. While this can be the same person, some parents like the flexibility in dividing guardianship.

For example, a relative may be chosen to be a financial guardian because they are skilled at managing money and have positive net worth. However, a personal guardian could be a family member who lives nearby and could ensure that the children are well cared for and their daily routines stay consistent.

You can also appoint a backup guardian in your will in case your primary choice is unable or unwilling to take on the role. You might also look into putting your house in a trust for your children, which could help ease the transfer process.

Writing a Will Can be Easier (and Cheaper) Than You May Think

If you have a lot of property or assets and may want to set up trusts for your heirs, it can be wise to hire an experienced estate attorney to help you write a will, as well as any other estate planning documents. They can also advise you on the best way to handle a will if you are married.

For many people, however, online templates can be sufficient and, provided the documents are signed appropriately, will be legally binding. A will is an important part of an estate-planning checklist.

After you write your will, you may need witnesses and a notary in order to make sure it’s legal in the state where you live. Once you have a will, there are a few other steps you may want to take, including:

•   Keeping your will in a safe place. This may include having a digital copy and also a physical copy.

•   Letting someone know where copies of the will are kept (say, the person you appointed as executor of your will).

•   Creating other end-of-life documents, including a living will and power of attorney. These documents can be invaluable if you were to become incapacitated and needed people to make medical decisions for you.

•   Talking about your decision with others. Many people put off creating a will, which can lead to confusion and uncertainty if the worst were to happen. Encouraging your loved ones to draft their own wills can help give peace of mind to the entire family.

•   Updating it regularly. It can be a good idea to consider looking at your will every year or so, or after a major event, such as a marriage, divorce, death in the family, home purchase, or the birth of a child.

The Takeaway

Creating a will may seem overwhelming, but it can also be a financially prudent move that helps protect your assets — and creates a legacy based on your wishes.

If you die without a will, you will have no say in how your assets will be distributed and, if you have children, who will care for them. You also risk putting your survivors in a difficult situation.

You may be able to create your own will relatively quickly online simply by plugging in your information. The rest is done for you, and the results are legally binding.

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