Episode 02
What Happens If You Die Without a Will? The State Already Wrote One
Who inherits when there’s no will? One made-up family runs through three rulebooks: Virginia, California, and the 2010 version of the Uniform Probate Code, a model law.
Key points
- Dying without a valid will is called dying intestate, and the state’s intestacy rules decide who inherits. [F19]
- In Virginia, if every child is also the surviving spouse’s child, the spouse takes everything. If even one child is from another relationship, the spouse takes one-third and the children share two-thirds. [F6]
- In California, the person’s half of any community property, as California defines it, goes to the spouse. For separate property, with more than one child, the spouse gets one-third and the children share the rest, even if every child is the spouse’s child too. [F13, F14]
- Under the 2010 version of the Uniform Probate Code, a model law, the spouse takes everything when all the children are shared and the spouse has no other children. When the person who died has a child who isn’t the spouse’s, the spouse gets a set dollar amount first, plus half of the rest. [F2]
- Intestacy rules only reach what’s left in the probate estate. California’s court guide, for example, says property owned in joint tenancy goes to the surviving owner, and transfer-on-death property and accounts with a named beneficiary go their own way too. [F17]
Episode notes
One family, three rulebooks
If someone dies without a will, who inherits? Here’s a made-up family, the Mercers. Sam Mercer dies without a will, leaving his wife, Robin, their two children, and property in his name alone. Robin has no other children. Say $400,000 is what’s left for the family after debts and expenses are paid.
In Virginia, Robin would get all of it. [F6] Under the 2010 version of the Uniform Probate Code, a model law, she’d also get all of it. [F2] In California, assuming it’s all Sam’s separate property, she’d get one-third, and the two kids would split the rest. [F13, F14] Same family, same money, and the rulebook decides.
The ground rules
Dying without a valid will is called dying intestate, and the state’s intestacy rules decide who inherits. [F19] Think of those rules as a will the state already wrote for you. This page compares three rulebooks: Virginia’s, because the episode’s viewer question, a Reddit post, came from Virginia, and California’s, a state with community-property rules. [F13] The third is the 2010 version of the Uniform Probate Code, a model law the Uniform Law Commission wrote for states to adopt or adapt; it isn’t law anywhere unless a state enacts it. [F1]
All three start in the same place: whatever a valid will doesn’t cover passes to the heirs the rules name. [F1, F6, F7, F13] All three also have a survival rule: to inherit, an heir generally has to outlive the person by 120 hours, which is five days. [F4, F9, F15] And in two of these rulebooks, the state is the last stop, not the first: in the Uniform Probate Code’s 2010 version, the state takes the estate only if no one on its list survives, [F4] and Virginia’s list of relatives runs on, in the statute’s words, “without end.” [F7]
One more ground rule for the Mercers: debts and expenses generally come out of the estate first, so every share on this page is a share of the $400,000 that’s left after they’re paid, not counting any allowances a spouse may also get. [F7, F18, F21, F22, F23]
The three-rulebook table
Each scenario changes one fact about the Mercers. Pick a scenario to see how each rulebook splits the $400,000, or read the full table below.
| Scenario | Virginia | California, separate property | Uniform Probate Code (2010 version) |
|---|---|---|---|
| Scenario 1All children sharedSam dies without a will. He leaves his wife, Robin, and their two children, Ava and Leo. Robin has no other children. | Robin $400,000Every child is also Robin’s child, so the spouse takes everything. [F6] | Robin, Ava, Leo ≈ $133,333 eachSeparate property, more than one child: Robin gets one-third, even though both kids are hers, and the children split the other two-thirds equally. [F13, F14] | Robin $400,000All of Sam’s children are Robin’s too and she has no other children, so Robin takes everything. [F2] |
| Scenario 2Leo is Sam’s son from an earlier relationshipSame family, one change: Leo is Sam’s son from an earlier relationship, not Robin’s. | Robin, Ava, Leo ≈ $133,333 eachThat one fact moves Robin from everything to one-third. Ava and Leo share the other two-thirds equally. [F6, F8] | Unchanged: ≈ $133,333 eachFor separate property, California counts the children, not whose children they are, so it’s still one-third to Robin and two-thirds to the kids. [F13, F14] | Robin $275,000 · Ava, Leo $62,500 eachSam has a child who isn’t Robin’s, so Robin gets a set dollar amount first, plus half of the rest. The rest goes to the children. [F2, F3] |
| Scenario 3No children, Sam’s mother aliveSam and Robin have no children. Sam’s mother is still alive, and his father died years ago. | Robin $400,000The spouse comes first, and only Sam having a child from another relationship would change that. [F6] | Robin $200,000 · Sam’s mother $200,000Robin gets half of Sam’s separate property, and Sam’s mother gets the other half. [F13, F14] | Robin $375,000 · Sam’s mother $25,000Robin gets a larger set amount plus three-quarters of the rest; Sam’s mother gets the remainder. [F2, F3] |
| Scenario 4An unmarried partnerSam never married, and he and his partner, Jess, never registered as domestic partners. They’ve lived together for years, they have no children, Sam’s mother is alive, and his father has died. | Sam’s mother inheritsWith no spouse and no children, Sam’s mother takes everything. [F6] | Sam’s mother inheritsWith no spouse and no children, Sam’s mother takes everything. [F14] | Sam’s mother inheritsWith no spouse and no children, Sam’s mother takes everything. [F3] |
Shares shown are intestate shares of what’s left after debts and expenses. A surviving spouse (and sometimes minor children) may also get allowances, which aren’t shown. [F21, F22, F23]
Uniform Probate Code figures: the 2010 version’s dollar amounts are in brackets, meaning each state picks its own, and they’re adjusted for inflation, so treat them as an illustration, not anyone’s actual share. [F2] California: Sam’s half of any community property, as California defines it, goes to Robin; [F13] these examples assume everything is Sam’s separate property.
About the unmarried partner
In scenario 4, in all three rulebooks, with no spouse and no children, Sam’s mother takes everything. [F3, F6, F14] Virginia’s statute lists a spouse, children, parents and other relatives, and that list doesn’t include an unmarried partner. [F6, F7] If that’s your situation, an estate-planning attorney can tell you what your options are.
Virginia: two more rules from the episode
Virginia only · rules vary by state
In Virginia, when someone dies with no spouse, the estate goes to their children. [F6] If a child’s parents never married, Virginia law treats the child as the mother’s child, and it sets out how the father’s side is proven. [F11] There’s also a one-year filing deadline, which doesn’t apply in some cases, for example when the father gave the information for the birth record. [F11]
In Virginia, what someone said they wanted isn’t a will. [F10] A will has to be in writing and signed, and it’s normally either entirely in the person’s handwriting or signed in front of two witnesses who also sign it. [F10, F24] A court can sometimes accept a signed document that missed one of those steps, but only with clear and convincing proof that the person meant it as their will. [F20] Without a valid will, the statute names the heirs. [F6, F10]
What these rules don’t cover
Property that passes outside the estate. Intestacy rules only reach what’s left in the probate estate. [F17] California’s court guide, for example, says property owned in joint tenancy goes to the surviving owner, and transfer-on-death property and accounts with a named beneficiary go their own way too. [F17] Our last episode dug into the beneficiary-form side of that.
Debts. According to the Consumer Financial Protection Bureau, debts are generally paid out of the estate, and family members typically aren’t personally responsible for them, with exceptions such as a co-signer or a joint account holder on a credit card. [F18]
Look up your state’s rules
Who inherits comes down to two things: your state’s rulebook and your family’s exact shape. Three steps:
- Search your state legislature’s website for “intestate succession” or “descent and distribution.” For example, Virginia’s main rules start at Code of Virginia §64.2-200, [F6] and California’s main ones are Probate Code §6401 and §6402. [F13, F14]
- Check your state court’s self-help pages. California’s, for example, has a guide called “When formal probate may not be needed” (its page heading reads “Check if you can use a simple process to transfer property”). [F17]
- Talk to a local estate-planning attorney if your family has any of the twists covered here, like a second marriage, a child from another relationship or a partner you never married.
Sources
- Uniform Probate Code (1969), Last Amended or Revised in 2010, with Comments (PDF), §§2-101 to 2-106, 2-402 to 2-404 and §2-102 comment, Uniform Law Commission (National Conference of Commissioners on Uniform State Laws)
- Code of Virginia §64.2-200, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-202, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-2201, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-309, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-403, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-404, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- Code of Virginia §64.2-102, Code of Virginia, Virginia Law (Division of Legislative Automated Systems)
- California Probate Code §6401, California Legislative Information
- California Probate Code §6402, California Legislative Information
- California Probate Code §6403, California Legislative Information
- California Probate Code §6540, California Legislative Information
- When formal probate may not be needed (Self-Help Guide), Judicial Branch of California
- Does a person’s debt go away when they die?, Consumer Financial Protection Bureau
- intestacy (Wex), Cornell Law School Legal Information Institute