Losing a parent is one of life's most challenging experiences. Beyond the emotional toll, families often face complicated legal and financial matters, especially when a parent dies without a will. When no valid will exists, the deceased is said to have died "intestate," and their assets are distributed according to state intestate succession laws rather than their personal wishes.

At Senior Advocate Center, our estate lawyers regularly assist families in navigating these difficult circumstances. This guide explains what children can expect when a parent dies without a will and how succession laws affect inheritance rights.

What Happens When a Parent Dies Without a Will?

When someone passes away without leaving a valid will, their estate becomes subject to intestate succession laws of the state where they legally resided. These laws establish a predetermined formula for distributing assets to surviving family members.

The absence of a will means the deceased parent has not legally documented how they wished their property to be distributed. Instead, the state essentially creates a "default will" through succession laws that determine who inherits what.

The court appoints an administrator (similar to an executor) to oversee the probate process. This person has the legal responsibility to:

• Identify and inventory all assets
• Pay outstanding debts and taxes
• Distribute remaining assets according to state succession laws

How Succession Laws Determine Inheritance Rights

Succession laws vary significantly from state to state, but they generally follow a pattern that prioritizes close family members. Most states recognize the following order of inheritance when a parent dies without a will:

1. Surviving spouse
2. Children and descendants
3. Parents
4. Siblings and their descendants
5. Grandparents and their descendants
6. More distant relatives

The specific distribution depends on which family members survive the deceased and the relevant state succession laws. Let's examine how these laws typically affect children's inheritance rights.

Children's Inheritance Rights When a Married Parent Dies Without a Will

When a parent dies without a will and leaves behind both a surviving spouse and children, the inheritance becomes more complex. The division typically follows one of these patterns:

Community Property States

In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), assets acquired during marriage are generally considered equally owned by both spouses. When a parent dies without a will in these states:

• The surviving spouse automatically retains their 50% ownership of community property
• The deceased parent's 50% share of community property and their separate property (property owned before marriage or received as gifts or inheritance) may be divided between the surviving spouse and children

For example, in California, when a parent dies without a will, their community property interest typically passes entirely to the surviving spouse. However, their separate property is divided with 1/2 going to the surviving spouse and 1/2 divided among the children.

Louisiana, as both a community property state and the only state with a legal system based on civil law rather than common law, has particularly unique succession laws. When a parent dies without a will in Louisiana, children may have stronger inheritance claims than in other states.

Common Law States

In common law states (the remaining 41 states), the distribution typically follows one of these models when a parent dies without a will:

1. The spouse receives a set portion (often 1/3 to 1/2), and the children share the remainder equally For example, in New York, when a parent dies without a will, the surviving spouse receives $50,000 plus half of the remaining estate, with children sharing the other half.
2. The spouse and children receive equal shares In some states, the surviving spouse receives the same portion as each child. For instance, if there are three children, the estate might be divided into four equal parts.
3. The spouse receives everything if all children are from that marriage Some states award the entire estate to the surviving spouse if all the children are from that marriage, with the understanding that the spouse will provide for the children.

Children's Inheritance Rights When a Single Parent Dies Without a Will

When an unmarried parent dies without a will, the inheritance process is typically more straightforward. In most states, the children inherit the entire estate in equal shares when a parent dies without a will.

For example, if a single parent with three children dies without a will, each child typically receives one-third of the estate after debts and taxes are paid.

Special Considerations for Different Types of Children

When a parent dies without a will, different categories of children may have different inheritance rights under succession laws:

Biological Children

Biological children almost always inherit when a parent dies without a will. However, there are some exceptions:

• Children who were put up for adoption and legally adopted by another family typically lose inheritance rights from their biological parents
• In some rare cases, children explicitly disinherited through other legal means may not inherit

Legally Adopted Children

Children who were legally adopted have the same inheritance rights as biological children when a parent dies without a will. They are entitled to the same share of the estate as any biological child would receive under state succession laws.

Importantly, adopted children typically have no inheritance rights from their biological parents once the adoption is finalized, as the legal relationship has been severed.

Stepchildren

In most states, stepchildren do not automatically inherit when a stepparent dies without a will, unless they were legally adopted. Succession laws typically only recognize legal parent-child relationships, not relationships based solely on marriage to the child's parent.

This means that if you have a close relationship with your stepparent but were never legally adopted, you likely have no inheritance rights under intestate succession laws when that stepparent dies without a will.

Foster Children

Similar to stepchildren, foster children generally do not have inheritance rights when a foster parent dies without a will, as there is no legal parent-child relationship established under most succession laws.

Children Born Outside of Marriage

Today, most states recognize the inheritance rights of non-marital children (sometimes called "illegitimate" children, though this term is outdated) when a parent dies without a will, provided paternity or maternity has been legally established.

The methods for establishing paternity vary by state but may include:

• Voluntary acknowledgment by the father during his lifetime
• DNA testing
• Court determination of paternity
• Father's name on the birth certificate

Once paternity is legally established, children born outside of marriage generally have the same inheritance rights as children born to married parents under succession laws.

Posthumously Conceived Children

With advances in reproductive technology, some children may be conceived after a parent's death. State succession laws vary significantly on whether posthumously conceived children have inheritance rights when a parent dies without a will.

Some states have enacted legislation specifically addressing this issue, while others rely on court interpretations of existing succession laws. If you're dealing with this situation, consult with an attorney familiar with your state's approach to posthumously conceived children's inheritance rights.

The Probate Process When a Parent Dies Without a Will

When a parent dies without a will, their estate typically goes through probate court—the court-supervised process of administering the estate. This process ensures debts are paid and assets are distributed according to succession laws.

The basic steps in the probate process when a parent dies without a will include:

1. Filing a petition with the probate court Someone (typically a family member) must petition the court to be appointed as administrator of the estate.
2. Court appointment of an administrator The court appoints someone (usually a close family member) to serve as the administrator, who functions similarly to an executor.
3. Notification of heirs and creditors The administrator must identify and notify potential heirs and creditors about the death and probate proceedings.
4. Inventory of assets The administrator creates a complete inventory of the deceased's assets and their approximate values.
5. Payment of debts and taxes Outstanding debts, funeral expenses, and taxes must be paid from estate assets.
6. Distribution of remaining assets After debts and taxes are paid, the remaining assets are distributed according to state succession laws.

The probate process when a parent dies without a will can be lengthy, often taking 6-12 months or longer in complex cases. It can also be costly, with court fees, administrator fees, attorney fees, and other expenses potentially reducing the estate's value.

Assets That May Bypass Succession Laws

Not all assets are subject to probate and state succession laws when a parent dies without a will. Certain types of assets pass directly to named beneficiaries regardless of will status:

Assets with Designated Beneficiaries

These assets typically pass directly to the named beneficiaries outside of probate:

• Life insurance policies
• Retirement accounts (401(k)s, IRAs)
• Annuities
• Transfer-on-death (TOD) accounts
• Payable-on-death (POD) bank accounts

Jointly Owned Property

Property owned jointly with rights of survivorship automatically passes to the surviving owner(s) when a co-owner dies, regardless of whether there's a will. Common examples include:

• Real estate owned as joint tenants with right of survivorship
• Joint bank accounts
• Property owned by married couples as tenants by the entirety

Assets in Trusts

Assets held in trusts bypass probate and are distributed according to the trust's terms, not intestate succession laws. If your parent established a trust during their lifetime and transferred assets into it, those assets will pass according to the trust document rather than succession laws.

How a Lawyer Can Protect Your Inheritance Rights

When a parent dies without a will, navigating succession laws and claiming your rightful inheritance can be challenging without proper legal guidance.

• Legal Assessment of Succession Rights: A skilled attorney can evaluate your position under state intestate succession laws and identify your legal entitlements when a parent dies without a will.
• Probate Court Representation: Your lawyer advocates for your interests throughout the probate process, ensuring the court properly applies succession laws when distributing assets after a parent dies without a will.
• Asset Discovery and Inventory: Attorneys have methods to locate and document all potential assets that should be included in the estate, preventing inheritance from being overlooked when a parent dies without a will.
• Beneficiary Determination: When a parent dies without a will, lawyers can establish legally recognized relationships between heirs and the deceased, particularly important for adopted children, non-marital children, or estranged relatives.
• Debt and Creditor Management: Legal counsel can shield your inheritance by ensuring only legitimate debts are paid from estate assets and that creditors follow proper procedures when making claims.
• Contested Succession Defense: If other potential heirs challenge your rights after a parent dies without a will, your attorney can gather evidence and present legal arguments supporting your position under succession laws.
• Administrator Appointment: Lawyers can petition the court to appoint you or another suitable person as the estate administrator when a parent dies without a will.
• Family Dispute Resolution: When succession laws create conflict among family members, attorneys can facilitate mediation or negotiation to reach fair settlements while preserving relationships.
• Legal Document Preparation: Your lawyer ensures all required documents are properly prepared, filed, and processed throughout the probate proceedings to prevent delays or rejections.
• Tax Consequence Navigation: Legal professionals identify potential tax liabilities affecting your inheritance and implement strategies to minimize tax impacts under applicable succession laws.
• Property Title Transfers: Attorneys handle the legal process of transferring titles and deeds to inherited property, ensuring you obtain clear legal ownership of assets.
• Non-Probate Asset Identification: When a parent dies without a will, lawyers can identify assets that pass outside of probate (like life insurance or jointly-held property) and help you claim these directly.
• Inheritance Protection Planning: Beyond handling the current situation, attorneys can help you create your own estate plan to protect your loved ones from similar challenges.

Types of Estate Cases We Take

At Senior Advocate Center, we provide comprehensive legal representation for families facing complex inheritance and estate matters, including situations where a parent dies without a will.

• Intestate Succession Cases: We guide heirs through the inheritance process when a parent dies without a will, ensuring assets are distributed according to state succession laws.
• Probate Administration: Our attorneys handle the court-supervised process of validating wills, identifying assets, paying debts, and distributing property to rightful beneficiaries.
• Estate Contests and Disputes: We represent clients in challenging questionable wills, addressing undue influence claims, or resolving conflicts among beneficiaries over inheritance rights.
• Guardianship Proceedings: Our firm establishes legal guardianships for minor children who have lost parents without proper succession planning in place.
• Estate Tax Planning: We develop strategies to minimize tax burdens on inheritances, particularly in complex situations involving succession laws and substantial estates.
• Asset Protection: Our attorneys implement legal safeguards to shield inheritance from creditors, divorce proceedings, and other potential claims.
• Beneficiary Representation: We advocate for named beneficiaries to ensure they receive their rightful inheritance when executors or administrators mismanage estates.
• Administrator/Executor Support: We provide legal guidance to those appointed to manage estates, helping them fulfill their fiduciary duties under succession laws.
• Trust Administration: Our firm assists trustees in managing and distributing trust assets according to the terms established by the grantor.
• Heir Determination: We conduct thorough investigations to identify and locate all potential heirs when a parent dies without a will, especially in complicated family situations.
• Estate Recovery Defense: Our attorneys protect clients' inheritances from government claims seeking reimbursement for Medicaid or other benefits received by the deceased.
• Business Succession Planning: We help family business owners create clear transition plans to preserve business continuity and family harmony when an owner dies without a will.
• Ancillary Probate: Our firm manages the complex process of handling property in multiple states, ensuring all assets are properly distributed under varying succession laws.

What to Do if Your Parent Died Without A Will

When a parent dies without a will, their estate falls under intestate succession laws, which can create complications for grieving families trying to settle affairs properly.

• Secure Important Documents: Locate and organize birth certificates, marriage certificates, death certificates, property deeds, bank statements, tax returns, and insurance policies to establish ownership and identify assets.
• Consult an Estate Attorney: Speak with a lawyer experienced in succession laws as soon as possible to understand your inheritance rights when a parent dies without a will.
• File for Probate: Initiate the court-supervised process by petitioning the probate court in the county where your parent resided when they died without a will.
• Petition for Administrator Appointment: Ask the court to appoint you or another trusted family member as the estate administrator who will manage the estate according to succession laws.
• Inventory Estate Assets: Create a comprehensive list of all property, financial accounts, valuables, and other assets owned by your parent at the time of death.
• Notify Creditors and Pay Debts: Follow legal procedures to inform creditors about the death and settle legitimate debts from estate assets before distribution.
• Identify Legal Heirs: Determine who is entitled to inherit under your state's succession laws when a parent dies without a will, which typically prioritizes spouses and children.
• Understand Tax Obligations: Address any required tax filings including the final personal income tax return and potential estate taxes depending on the estate's value.
• Distribute Assets: After debts and taxes are paid, allocate remaining assets to heirs according to intestate succession laws, which vary by state.
• Transfer Titles and Deeds: Complete the legal process of changing ownership of property, vehicles, and financial accounts to the rightful heirs.
• Close the Estate: File final reports with the probate court showing all actions taken and distributions made to formally close the estate administration.
• Consider Future Planning: Create your own estate plan, including a will and potentially trusts, to prevent your loved ones from facing similar challenges.

Get Professional Guidance During This Difficult Time

At Senior Advocate Center, we understand the difficulties families face when a parent dies without a will. Contact us today to schedule a consultation with our compassionate estate attorneys who will protect your inheritance rights and guide you through the intestate succession process.

Estate Lawyer FAQs

How long does probate typically take when a parent dies without a will? The probate process for intestate estates typically takes 6-12 months but can extend to 2+ years in complex cases or when family disputes arise over succession laws.

Can I handle probate without an attorney if my parent died without a will? While technically possible in some jurisdictions, navigating intestate succession laws without legal guidance often leads to costly mistakes, delays, and potential personal liability for the administrator.

What happens to digital assets when a parent dies without a will? Digital assets (cryptocurrency, online accounts, digital photos) follow the same intestate succession laws as physical property, though accessing these assets often presents unique challenges without proper account credentials or legal authority.

Do stepchildren have any inheritance rights when a stepparent dies without a will? In most states, stepchildren have no automatic inheritance rights under succession laws unless they were legally adopted by the deceased stepparent.

How do succession laws handle estranged children when a parent dies without a will? Estrangement generally does not affect inheritance rights when a parent dies without a will—legally recognized children typically inherit regardless of their relationship status with the deceased.

Can a common-law spouse inherit when their partner dies without a will? This varies significantly by state—some jurisdictions recognize common-law marriages and grant inheritance rights, while others provide no protection to unmarried partners under intestate succession laws.

What happens to retirement accounts when someone dies without a will? Retirement accounts typically pass directly to named beneficiaries regardless of will status, bypassing succession laws completely—if no beneficiary is named, the account may become part of the probate estate.

How are family heirlooms and sentimental items distributed when a parent dies without a will? Succession laws typically don't differentiate between financial assets and sentimental items—all personal property is generally divided equally among heirs, often creating emotional conflicts that legal guidance can help resolve.

Can someone contest an intestate distribution if they believe succession laws weren't properly applied? Yes, interested parties can challenge how an administrator applies succession laws or contest the determination of heirs through court proceedings, though such challenges must have valid legal grounds.

What happens to joint bank accounts when one account holder dies without a will? Joint accounts with rights of survivorship typically pass automatically to the surviving account holder(s) outside of probate, regardless of intestate succession laws.

Do inheritance laws differ for blended families when a parent dies without a will? Yes, blended families often face more complex succession outcomes—in many states, assets may be divided between the current spouse and biological children from previous relationships, sometimes creating unintended distributions.

How does homestead property transfer when a parent dies without a will? Many states have special provisions in their succession laws for primary residences (homesteads), which may provide additional protections or inheritance preferences for surviving spouses and minor children.

Can an executor override a will or intestate succession laws? No, executors and administrators have a fiduciary duty to follow either the will's terms or state succession laws—they cannot legally deviate from these requirements based on personal preferences or family requests.

What happens to pets when their owner dies without a will? Legally, pets are considered personal property under succession laws and pass to heirs accordingly—without specific arrangements, there's no guarantee pets will go to the person best able to care for them.

How do succession laws handle family farms or businesses when an owner dies without a will? Family businesses often face significant challenges under intestate succession—assets may be divided among multiple heirs who disagree about operations, potentially forcing liquidation rather than continued family ownership.