If you die without a will, the state decides what happens to your property. That includes your money, your home, your personal items, and, if applicable, your children.
This is called dying intestate. Each state has its own rules. The outcome depends on who survives you and what the law says. It may not line up with what you would have chosen.
This article explains intestate succession, what it covers, who gets what, and why writing a will now avoids problems later.
If someone passes away without a valid will, state law takes over. This process is called intestate succession.
Each state has its own rules, but the idea is the same: there’s a legal order that decides who inherits. It usually starts with a surviving spouse and children. If they don’t exist, the law moves to parents, then siblings, then more distant family like nieces, nephews, or cousins.
The court doesn’t consider what the person might have wanted; it follows the law, which can lead to outcomes that feel impersonal or unexpected. If no eligible relatives can be found, the estate goes to the state.
Some property passes to others automatically and isn’t controlled by a will or intestacy laws. These include:
Homes or land with joint ownership and right of survivorship
Bank accounts with a named beneficiary or marked payable on death
Retirement accounts like IRAs or 401(k)s with named beneficiaries
Life insurance policies
Trusts
Investment or vehicle titles marked transfer on death
Even if there’s no will, these assets usually go straight to the person listed.
Anything solely owned by the person who died and not tied to a beneficiary will go through the probate process. Examples include:
Real estate in one person’s name
Bank accounts with no listed beneficiary
Cars or other vehicles titled in only one name
Personal property like furniture, jewelry, or other belongings
This is where intestate succession rules decide who inherits what.
If there’s no will, state law decides who gets what. The outcome depends on your family situation, whether you’re married, have children, or have other living relatives. Here's how that usually works.
What a surviving spouse receives when there’s no will depends on both the state and the family situation. In Florida, the rules generally follow this pattern:
If all children are shared with the surviving spouse:
The spouse usually inherits the entire estate.
If the person had children from another relationship:
The estate is usually split:
50% to the surviving spouse
50% to the children from the previous relationship
This can cause tension in blended families, especially when assets like homes or family businesses are involved. Without a clear will, spouses and children may not agree on what’s fair.
In Florida, unmarried partners do not inherit anything through intestate succession, even if:
The relationship was long-term
You lived together
You owned property together
You raised children together
Unless a will or legal document names the partner as a beneficiary, the partner has no legal right to the estate. This can surprise many couples and is a common reason to have a will in place.
If someone dies without a spouse, their children usually inherit everything, divided equally. This applies to:
Biological children
Legally adopted children
Children from previous relationships
It does not apply to:
Stepchildren who haven’t been adopted
Foster children
Children given up for adoption (who may no longer be legally connected to the biological parent)
Other things to note:
Posthumous children (conceived before death, born after) often still inherit
Children born using assisted reproductive technology may or may not qualify, depending on state law
If there are no immediate family members like a spouse or children, Florida law assigns inheritance to the next closest relatives, in a set order:
The court does not skip or rearrange this order based on emotional closeness or time spent together. Legal relationship and family line take priority.
If a child dies before their parent, their share of the estate usually passes to their own children (the grandchildren). This is called inheriting by representation or per stirpes.
Here’s how it works:
Let’s say someone has three children
One of those children passed away, leaving two children of their own
When the parent dies, the estate is divided into three parts
Each living child receives one-third
The two grandchildren split their parents’ one-third share
This helps keep the family line intact and ensures that grandchildren aren’t left out just because their parent passed away first.
In some states, how this works may vary slightly. The court may need to determine whether the inheritance is split equally among living heirs (per capita) or passed down through family lines (per stirpes). Florida typically follows per stirpes unless otherwise stated in a valid will.
Intestate succession rules only recognize certain legal relationships. Anyone not on that list does not receive anything. This includes:
Unmarried partners or fiancés
Stepchildren who weren’t adopted
Friends
Charities or causes
Caregivers
Unless they are named in a valid legal document, the law does not give them a share.
If someone who would have inherited from you passes away first, their share may pass to their children. This is common in cases where an adult child dies before their parent.
Whether that share goes to the next generation depends on the laws in your state. Many states, including Florida, follow per stirpes inheritance, meaning:
The deceased heir’s share is passed down to their children (your grandchildren), divided equally.
If the deceased heir had no children, that share is usually divided among the remaining heirs.
There’s also something called the survivorship rule, used in many states:
An heir must outlive you by a certain amount of time, typically 120 hours (5 days)—to legally receive their inheritance.
If they die within that window, they are treated as if they died first, and their share goes to the next eligible heir.
If a parent dies and leaves behind children under 18, and there’s no will naming a guardian, the court decides who takes care of them.
The court will consider:
Who’s available
The child’s best interests
Testimony or preferences from family members
However, the court doesn’t know what the parent would have wanted unless it’s in writing. That’s why naming a guardian in a will is so important.
Without a guardian named:
Family members may disagree or go to court
A judge may choose someone unexpected
The process can be stressful for the child and surviving family
Writing a will allows parents to clearly name someone they trust to raise their children, avoiding future uncertainty.
When there is no will, the probate court will appoint a person to manage the estate. This person is called a personal representative (sometimes also called an administrator or executor, though the titles may vary by state).
They are responsible for:
Collecting all property and accounts
Paying off debts and taxes
Distributing what’s left according to the law
In most cases, the court chooses someone in this order:
If there’s no one available or willing, the court may assign a professional or public representative.
In some situations, it’s possible to change how the estate is divided, even when there’s no will. This usually requires full agreement among the heirs and may need legal documentation.
Here are the main options:
Family Agreement:
All heirs agree to divide property differently than state law requires. This must be voluntary and in writing.
Disclaiming an Inheritance:
An heir can choose to refuse their share. The disclaimed share then goes to the next person in line under the law.
Claiming Financial Support:
Someone who was financially dependent on the person who died, such as a partner, adult child with disabilities, or other close contact, may be able to ask the court for a share, even if they aren’t named in the intestate order.
These options often involve legal deadlines, paperwork, and court approval. Anyone considering them should speak with an estate or probate attorney to avoid complications.
Every state has its own intestate succession laws. In Florida, for example, if you’re married and have children from another relationship, your spouse may only inherit part of your estate. In some states, the rules are different—your spouse might receive more or less, or children may be treated differently.
Some states also have different rules for:
Stepchildren or adopted children
Survivorship requirements (how long someone must outlive you to inherit)
How property held in other states is handled
Whether unmarried partners can inherit
Because of these differences, it’s important to base your estate plan on the laws in the state where you live or where your property is located. If you own property in multiple states, that can also change how things are handled.
Without a will, state law controls everything. It decides who gets your things, who manages your estate, and who raises your children. It doesn’t consider your personal relationships or preferences.
A will gives you the ability to:
Choose who gets your property
Decide who takes care of your children
Pick someone to handle your affairs
Include people or causes that matter to you
Reduce conflict and confusion later on
Planning ahead helps protect the people who matter most and makes things easier for them during a difficult time.
It depends on how the property is owned and who survives you. If the house is titled only in your name, it becomes part of your probate estate and will be distributed according to your state’s intestacy laws. If you are married, your spouse may inherit some or all of it, depending on whether you have children from another relationship. If the home is jointly owned with right of survivorship, it usually passes automatically to the surviving co-owner.
If your bank account has a named beneficiary or is marked Payable on Death (POD), it will go directly to that person and will not go through probate. If there is no beneficiary and the account is only in your name, it becomes part of your probate estate. It will then be distributed based on your state’s intestate succession rules, usually to a spouse, children, or other next of kin.
Items like furniture, electronics, jewelry, and household goods are considered personal property. If you do not have a will, these items are included in your probate estate. The court will appoint a personal representative to manage your estate. Your belongings will be divided among your legal heirs according to state law. If family members want specific items, they typically need to agree on how to divide them unless the court provides direction.
Florida does not recognize holographic wills. This means a handwritten will is only valid if it meets the state’s legal requirements. A valid will in Florida must be:
In writing
Signed by the person making it (the testator)
Signed in the presence of two witnesses, who must also sign the will
A handwritten will without witnesses is not valid under Florida law.
If you die without a will and leave behind children under the age of 18, a court will appoint a guardian to care for them. The judge will make this decision based on what is in the child’s best interests. If the other parent is alive and has legal custody, they will usually become the sole guardian. If not, the court may choose a close relative. However, there is no guarantee the court’s decision will match your wishes. Naming a guardian in a will is the most effective way to ensure your children are raised by someone you trust.
If you’re thinking about what would happen to your family or your property after you pass, it’s a good time to create a will. You don’t need to be wealthy or own a business. If you have people or things you care about, you should make a plan.
If you're looking for experienced estate planning attorneys in the South Atlantic region, check out our guide to the top 6 estate law firms for families in the South Atlantic, which includes The Florida Estate Firm and other trusted firms serving Florida, Georgia, North Carolina, Virginia, Maryland, and Washington D.C.
