What would happen to my property if I died without a will?

Many people die without having designated in a will who should take their property, but that does not necessarily mean that their goals are not accomplished. So-called “will-substitutes” sometimes do the work of a will.

The most common will-substitutes are funded trusts, joint tenancies, tenancies by the entirety, and various kinds of pay-on-death or transfer-on-death accounts, contracts, and deeds.  

For example, at the death of a joint tenant, that person’s interest in jointly owned property automatically becomes the property of the surviving joint tenant(s); and when the owner of a pay-on-death account dies, that account is payable to the person designated by the decedent when setting up or modifying the account.  Unfortunately, some people confuse joint tenancies with tenancies in common, and many fail to keep all their pay-on-death designations current.

A decedent’s property that does not pass by will or by will-substitute passes instead in accordance with state law.  Think of these laws as a standardized back-up will written by the state legislature on behalf of everyone who dies “intestate,” that is, without a will.   

Despite the legislature’s good intentions, property controlled by intestate rules sometimes passes to people the decedent would never have selected.  For example, any such property passing to the decedent’s children will be shared by them equally, even if the decedent had made clear (but not in a valid will) that he did not want a particular child to get anything—and even if that child had once demanded and talked the parent into giving that child “his inheritance” before the parent died.    

Intestacy rules vary from state to state.  Consider this hypothetical fact pattern:  Mrs. Client’s first husband dies young, leaving Mrs. Client with two very young children.  Eventually Mrs. Client meets and marries Mr. Client, and he raises Mrs. Client’s children as though they are his own.  Eventually Mrs. Client dies, leaving all her property to Mr. Client, expecting that he will eventually leave everything to Mrs. Client’s children.  But if Mr. Client dies without leaving a will or any will-substitutes, none of his property—not even the property he received from Mrs. Client—will pass to Mrs. Client’s children.  This is because they are his stepchildren, not children.

If Mr. Client in the above hypothetical is not survived by at least one grandparent or a grandparent’s descendant, his entire estate—including the property received from Mrs. Client—will pass to the State.  Mrs. Client’s children will take nothing.  In some states Mr. Client’s property would pass to his stepchildren rather than to the State, but not in Hawaii.

There are additional reasons why every adult should have a will, but the point for now is that without a will or will-substitute, a person’s property could end up in the wrong hands.

As always, I must add that this post does not contain legal advice, and that you should not rely on any of the above information to determine what is in your own best interest.  


What happens if a parent dies without updating his will or trust to reflect the arrival of a new child?